Tag Archives: NLRB

Employees and Salary Discussions—Is Your Policy Valid?

There’s nothing many small business owners hate more than employees discussing their salaries with one another.  After all, what your small business pays its employees may vary considerably, based not only on factors like experience and educational level, but things like productivity and how well the employee negotiated his or her salary before starting work.  To curb hurt feelings (and limit requests for raises), some small businesses have adopted policies prohibiting their employees from discussing their salaries with each other.  The problem?  These policies may not be legal.

In a case recently decided by the Court of Appeals for the First Circuit, National Labor Relations Board v. Northeastern Land Services, Inc., 645 F.3d 475 (2011), a company required a new employee to sign a contract stating that “the terms of this employment, including compensation, are confidential” and that disclosure “may constitute grounds for dismissal.”  The company later fired the employee for allegedly violating the confidentiality provision.

The National Labor Relations Board determined that the confidentiality provision was illegal and that, consequently, firing the employee for violating it was also illegal.  The First Circuit agreed.  It upheld a NLRB order requiring the company to reinstate the former employee, pay him back pay, and rescind the confidentiality provision in all of its employment contracts.

As a small business owner, it can be tempting to require that your employees keep their salary information to themselves.  However, at least under the NLRB’s current interpretation of the law, salary confidentiality provisions can be more trouble than they are worth.

By: Guest blogger Steven Koprince, an attorney with Petefish, Immel, Heeb & Hird, LLP in Lawrence, KS. Mr. Koprince’s practice emphasizes government contracts and small business law.

Employees, Social Media, and Your Small Business

Can you legally fire one of your employees for a Facebook post critical of your small business? No, according to the National Labor Relations Board (NLRB), which issued a complaint in late May against an Illinois BMW dealership, alleging that the dealership unlawfully terminated an employee for making critical comments about the dealership on Facebook.

The NLRB’s complaint alleges that a car salesman posted complaints about the quality of food and drink served at a dealership event promoting a new car. Other dealership employees had access to the salesman’s Facebook page. The following week, management asked the salesman to remove the posts, and the salesman complied. However, soon after, the dealership fired the salesman.

According to the NLRB, the employee’s Facebook posts were protected “concerted activity” under the National Labor Relations Act (NLRA), because they were part of a discussion among employees about the terms and conditions of their employment. An NLRB administrative law judge was scheduled to hear the case on June 21.

The BMW dealership case comes on the heels of other NLRB complaints against employers for penalizing employees based on critical Facebook comments, blog posts, or other social networking activity. For instance, in February, a Connecticut employer settled a NLRB complaint alleging that the company fired an employee for posting a negative comment about her supervisor on Facebook. And in April, the NLRB filed a complaint alleging that a media company violated federal law by restricting its employees’ ability to use Twitter to discuss working conditions with coworkers.

The NLRB’s actions do not mean that every social media post an employee makes is protected by law. In fact, the NLRB recently held that a Tuscon-area newspaper did not violate the law when it fired an employee for unprofessional and inappropriate tweets that included remarks about how Tuscon was “slacking” because there were no overnight homicides and sexual innuendo to describe the employee’s television viewing habits.

While unprofessional and inappropriate conduct may not be protected, the intersection of social media and the NLRA is an evolving area of the law, and it is not yet clear when a Facebook post or tweet crosses the line from protected concerted activity to punishable offense. If your small business is concerned about the social media activities of one of your employees, proceed with caution, because the employee’s actions may be protected by the NLRA.

By: Guest blogger Steven Koprince, an attorney with Petefish, Immel, Heeb & Hird, LLP in Lawrence, KS. Mr. Koprince’s practice emphasizes government contracts and small business law.