by By Stuart J. Oberman, Esq
Many dentists unknowingly violate federal law by attempting to prevent employees from discussing salary and company benefits with other employees. The law surrounding this issue is often misunderstood. However, the lack of knowledge surrounding these laws can be costly and can lead dental employers straight into disputes with labor boards.
Many dental practices have a corporate policy similar to this:
Confidentiality of Salary and Benefit Information: Employees are prohibited from discussing their salary or wage levels and company benefits with other employees. Such information is confidential and may not be discussed in the workplace. Any employee violating this policy will be considered to have committed a breach of confidentiality and will be subject to disciplinary action, up to and possibly including termination of employment.
A 2011 survey from the Institute for Women’s Policy Research found that about half of workers “report that the discussion of wage and salary information is either discouraged or prohibited and/or could lead to punishment.” Those same companies would likely be surprised to learn that such policies violate federal labor law. Indeed, the National Labor Relations Act, which applies to most private sector employers (including health care facilities), contains a provision, Section 7 (29 U.S.C. § 157), that gives all employees the right to “engage in concerted activities”, including the right to discuss their terms and conditions of employment with each other.
Section 8(a)(1) of the NLRA (29 U.S.C. § 158(a)(1)) makes it an unfair labor practice for an employer to deny or limit the Section 7 rights of employees. Based upon those two provisions, the National Labor Relations Board has taken the position for decades now that employers may not prohibit employees from discussing their pay and benefits, and that any attempts to do so violate the NLRA. Over the years, the National Labor Relations Board has resoundingly sided on behalf of employees’ rights to discuss salary and wages, and courts have uniformly supported that position.
Even if an employee signs a nondisclosure agreement, the employee would still be protected when talking about salary. An employer cannot declare information about employees’ pay to be confidential information that cannot be discussed. However, an employee whose job function involves access to company wage and payroll information may not disclose employee pay information to other employees unless directed by the employer or an investigating agency.
The National Labor Relations Board has routinely heard cases regarding an employee’s right to discuss wages. In one case, an employee noticed a document containing wage increase information in a supervisor’s office, copied the wage information concerning each employee and then shared the information with several employees. The National Labor Relations Board found that the employee did not commit trespass to access the payroll information, and that the employee was even within his rights to distribute the information.
Finally, it makes a difference under the law as to how employees obtain the salary and benefit information they are discussing. Employees discussing their own information are protected, as are employees discussing the pay and benefits of others if they obtained that information through ordinary conversations with others. However, if in order to get the pay and benefit information they discuss with others, they access offices or files known to be off-limits to them, or cause others to break access restrictions and give them confidential information, and the company has clearly taken steps to restrict the information and uphold its confidentiality, then they may well find themselves unprotected by the National Labor Relations Act if they are disciplined, even discharged, for participating in the access violation.
Many employers use sample policies that they have found on the Internet or in collections of policies in popular office software, and some employers simply draft their own policies. With some areas of employee relations, that can work. However, when the policies concern pay and benefit discussion, it may not be a good idea. This area of the law is so little-known by most employers and employees and so fraught with potential problems that any employer considering writing or enforcement of a policy restricting discussion of pay and benefits should definitely consult an employment law specialist who is knowledgeable about National Labor Relations Act issues before taking any actions.
The clear message for employers: do not prohibit workers from discussing pay and compensation. The law errs on the side of protecting employees’ right to concerted activity.
Stuart J. Oberman, Esq. handles a wide range of legal issues for the dental profession including employment law, practice sales, OSHA and HIPAA compliance, real estate transactions, lease agreements, non-compete agreements, dental board complaints and professional corporations.
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