Friendly court reminder: Policies can't stop workers from talking about pay

By now, most savvy companies know they can’t bar employees from discussing such things as salaries and working conditions. But that doesn’t mean there aren’t some companies out there that try to do it anyway. 

Worker spoke up, was disciplined

Take the recent case of Banner Health System, which had adopted a Confidentiality Agreement, identifying forbidden topics like “[p]rivate employee information (such as salaries, disciplinary action, etc.) that is not shared by the employee.”
The company also prohibited employees from discussing ongoing workplace investigations.
The case centered on an employee named James Navarro, who expressed concerns he had with the company’s Phoenix facility. He spoke to several other workers at the facility about the problems, and was disciplined for it.
He filed a complaint with the National Labor Relations Board (NLRB), which ruled that Banner’s confidentiality rules were overly broad (even for non-union employers).
Later, a court of appeals agreed. Banner’s policies could discourage discussions about working conditions, a right guaranteed under labor law, the court said. So Banner’s facing policy revocations.

Even non-union businesses

This ruling impacts all employers and shows that even non-union businesses must watch speech restrictions.
So how can employers stay safe? Writing on Littler’s Insight blog, employment attorney Gregory Brown offers the following legal advice for employers:

“Employers should review their personnel policies and confidentiality agreements to ensure that those policies comply with the court of appeals’ decision.  They should eliminate prohibitions on employee discussions concerning the terms and conditions of employment. 
Employers should also consider excising confidentiality requirements for internal investigations in favor of language indicating that confidentiality may be appropriate under certain circumstances.  In addition, employers should train those employees charged with conducting internal investigations as to the circumstances in which a confidentiality instruction is appropriate, how to narrowly tailor the instruction, and how to plan investigations that do not warrant such an instruction.”

Cite: Banner v. NLRB, U.S. Crt of App. D.C. Dist., No. 15-1245, 3/24/17.