Telling Employees They Can't Discuss Compensation Violates NLRA
Windstream Corporation developed “Working with Integrity” guidelines, which it sent by e-mail to all its employees and posted on its Intranet site. Under a section entitled “Customer-Employee Privacy,” Windstream distributed the following policy statement:
Employee compensation, benefits, personnel records and information are confidential. Only employees who need to know such information in the course of employment should access such employee information. You should not disclose this information to any other Windstream employee, unless that employee has a need to know such information in the course of employment. Except as required to comply with law, you should never disclose this information to any party other than the employee or individual whose access has been authorized by the employee.
The IBEW filed an Unfair Labor Practice charge with the NLRB, alleging this policy violated Section 8(a)(1) of the National Labor Relations Act (“Act”), which protects employee rights to form, join, or assist a union and engage in other “protected and concerted activity.”
Windstream defended, in part, by claiming that the policy had never been enforced and, accordingly, there was “no harm.” An Administrative Law Judge, with NLRB approval, rejected the employer’s defense, holding that an unlawful rule which prohibits employees from exercising their rights under the Act is a violation, even if it has never been enforced.
Windstream further defended, by claiming that the policy was meant to apply to employees whose job duties necessitated they have access to personnel information in the course of their employment. The NLRB held that the policy did not make that clear; but, rather, suggested that it applied to all employees. While the case was pending, Windstream amended the rule to read as follows:
Employee compensation, benefits, and personnel records and information are confidential. Only employees who need to know such information in the course of employment should access such employee information through Company records. Therefore, if you are the one with access to such information as a part of your responsibilities with the Company, you should not disclose this information to any other Windstream employee unless that employee has a need to know such information in the course of employment. Except as required to comply with law, you should never disclose this information to any party other than the employee or an individual whose access has been authorized by the employee. This does not prohibit you from disclosing or discussing personal, confidential information with others, so long as you did not come into possession of such information through access which you have as a part of your formal Company duties.
Windstream just couldn’t seem to catch a break. While the NLRB found the amended rule to be lawful, it still found a violation, because the amended rule had not been disseminated by e-mail, as had the original, unlawful, rule. As a remedy, the NLRB ordered Windstream to send the new, lawful, rule to each employee via e-mail, just as it had done with the original unlawful rule.
Under the Act, employees have a right to discuss wages, hours, and terms and conditions of employment amongst themselves, as such discussions are considered to be protected concerted activity. While it is lawful for employers to prohibit employees who, as part of their job duties, have access to confidential employee information, from discussing or disseminating that information beyond the actual scope of their work duties and responsibilities, an employer may not prohibit employees from disclosing their own compensation or benefits, nor from asking other employees how much they are paid.
