Despite years of legal decisions to the contrary, a surprising number of employers still attempt to prohibit employees from discussing their compensation among themselves. The National Labor Relations Board has repeatedly held that non-supervisory employee discussions of compensation are protected concerted activity under Section 7 of the NLRA. Policies or informal attempts to prohibit such discussions constitute an unfair labor practice.

Last month in Alternative Energy Applications, Inc., the NLRB affirmed an administrative law judge’s conclusion that the complaining employee had been terminated in part, because the employer believed that he had disclosed to co-workers the fact that he had recently negotiated a small pay increase after he had been instructed not to do so. The employer claimed that he had been terminated for other reasons, but had admitted to an OSHA inspector that the termination resulted from this disclosure.

Employers traditionally wanted to keep employees from talking with one another about their compensation for several reasons. They did not want employees to discover salary discrepancies that could become the basis for demands or claims of disparate treatment. Also, employers believed that such discussions could lead to efforts to organize the workplace. While employers are under no obligation to disclose comparative compensation information to employees, they cannot make internal discussions of salary a disciplinary offense. Attempts to do so will inevitably result in difficult legal claims, as well as continuing disruption among employees subject to this prohibition.