A recent case before the National Labor Relations Board (NLRB) serves as a good reminder that employers cannot ban employees from discussing wages. Section 7 of the National Labor Relations Act (NLRA) guarantees employees the right to participate in labor organizations and collective bargaining, as well as the right “to engage in other concerted activities for the purpose of…other mutual aid or protection.” In many cases, this involves employees’ ability to discuss with one another their wages, benefits, and other terms and conditions of employment. Under Section 8(a)(1) of the NLRA, it is unlawful for employers to “interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7″—which includes discharging or disciplining employees who engage in those rights and complain about unlawful work rules.

In SW Design School, LLC, d/b/a Interns4Hire.com, Matthew Hyson was hired to teach STEM afterschool programs in the Washington, D.C., area. Hyson met with his supervisor, Stacey Walker, to prepare for his first day of work. During that meeting, Walker told him she had recently been promoted, and Hyson asked if she had received a raise in connection with her new supervisory role.

A rule in the employee handbook—which both Hyson and Walker had been required to sign—prohibited employees from discussing wages and working conditions with each other. Citing this rule, Walker refused to answer Hyson’s question. Hyson explained that the rule was unlawful, and Walker told him he should be having this discussion with the company’s owner, Tarsha Weary, and not Walker. After the meeting, Hyson emailed Walker an article on the illegality of the handbook’s rule, and Walker forwarded the email to Weary and told her about the conversation.

Two weeks later—after another unrelated complaint—Weary confronted Hyson regarding his complaints about the company’s policies, telling him that those complaints should have been brought only to her (as the owner) and that his actions violated the employee handbook’s prohibition on discussing compensation with other employees. In response, Hyson told her the rule was illegal, and the two argued about that issue at length during their hour-long meeting. Weary disagreed that the rule was unlawful, maintained that Hyson waived his right to discuss wages when he signed the handbook, and called him untrustworthy. Weary referenced Hyson’s at-will employment status and said she did not need a reason to terminate his employment, then fired him before the meeting ended.

The NLRB found that Weary had violated the NLRA by discharging Hyson, explaining that

“the right of employees to discuss their wages and terms and conditions of employment with each other is a core substantive right protected by the NLRA. Employers cannot require employees to waive their rights protected by the Act and will violate the Act by discharging an employee for refusing to do so.”

Even though Hyson signed the handbook that unlawfully required him to waive his right to discuss wages or working conditions with other employees, he continued to complain that the rule was illegal and refused to waive his rights. The meeting in which he was ultimately terminated was largely an argument between Hyson and Weary over the legality of the handbook rule, and Weary’s decision to fire Hyson was clearly motivated at least in part by his continued objections. The NLRB ordered Weary to revise or rescind the illegal rule in the handbook, to reinstate Hyson’s employment, and to pay Hyson back wages and other monetary relief.

For those clients who we work with on drafting and revising employee handbooks, you know we avoid these types of unlawful work rules and include disclaimers that nothing in the handbook or any policy therein is intended to preclude or dissuade employees from engaging in rights protected by the NLRA, such as discussing wages, benefits, or other terms and conditions of employment. For those we have not worked with directly, it is a good idea to double check that your handbook includes similar language and doesn’t run afoul of the NLRA. As always, please reach out if you need specific or additional legal guidance. We are happy to help.

By Rebecca D. Bullard, rbullard@dsda.com