#1  
Unread 08-29-2002, 05:51 AM
thonoway
 
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Default Salary Confidentiality and Employee Handbooks & Policies

My organization has a policy outlined in the employee handbook that reads as follows:

"Confidential Employment Information
All information as it relates to the status of employment is confidential and may not be shared with other employees. This includes, but is not limited to salary, bonuses, and other types of compensation. It is a violation of policy to obtain, possess, and/or distribute confidential personnel information.

Disregard or failure to comply could lead to disciplinary action, including termination. Any employee aware of the possession or distribution of such information should notify Human Resources as soon as they become aware of the situation. Withholding such knowledge is also considered a violation of the policy."

I've read many posts on this board stating that this might be illegal, but we had a lawyer review the entire handbook sometime ago and nothing was mentioned about this policy. An employee of ours (non-management) has been discussing salaries, both her own and that of others, and we are considering terminating her. Is this advisable? Should we change the policy? My company is in an 'employment at will' state.

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  #2  
Unread 08-29-2002, 06:24 AM
Theresa Gegen TX
 
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Default RE: Salary Confidentiality and Employee Handbooks & Policies

This is a violation of the national labor relations act. Just having the policy is a violation because it has a chilling effect on the employees rights.

Employees have a right to discuss the terms and conditions of employment, including salaries. The thought is that employees have a right to get together and complain about the company. This law applies to your company whether you have a labor union or not.

So I would not fire the employee for it, and I would change the policy. (The only employees who should be disciplined for sharing this type of information would be employees who have the information because of their job [for example payroll clerk] and share the pay of others without consent; that would be a violation of that employee's duty to keep the information related to others confidential). However, an employee can always share their own pay information.

You may want to take that section back to the attorney with a specific question about the labor laws. Although you may not believe it, attorneys are human too, and in a long employment manual can easily miss that issue.

Good Luck!!


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  #3  
Unread 08-29-2002, 07:01 AM
Don D
 
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Default RE: Salary Confidentiality and Employee Handbooks & Policies

As usual, Theresa is exactly right. But, even if it were not a violation of the NLRA, your policy, as written would make it a firing offense for one to posess one's own confidential personnel information. I suspect that's been in your manual for a long, long time, but it must come out right away. Speaking of lawyers making mistakes, Theresa, today's joke going around is about an engineer showing up at the Pearly Gates and St. Peter sends him to Hell. Later God discovers that was a mistake and he calls Satan and demands the return of the engineer. Satan says, "Ha, no way". God threatens saying, "If the engineer is not returned, I shall SUE!" Satan then asks, "Now where are YOU going to get a lawyer?" x:-)
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  #4  
Unread 08-29-2002, 07:57 AM
thonoway
 
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Default RE: Salary Confidentiality and Employee Handbooks & Policies

A few of my colleagues seem to think that we can fire the employee despite the NLR Act because of the nature of what she did. The employee in question came across a list of salaries and shared it with others. The list was left in an area the was not restricted and the employee would have been in this area in the course of their job.

Some colleagues maintain that we can terminate her because she shared information about others salaries without their consent. Still others maintain that because we have a policy that violates the Act, because the employee was not a person who had a duty to keep this type of information confidentional (they were not in payroll or HR), and because the employee found the information in an unrestricted area we should not fire the employee (or even discipline her for that matter) and we should eliminate this policy from the handbook.

We probably need to consult with an attorney but I would appreciate any input before doing so.
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  #5  
Unread 08-29-2002, 09:40 AM
Don D
 
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Default RE: Salary Confidentiality and Employee Handbooks & Policies

Still others >maintain that because we have a policy that violates the Act, because >the employee was not a person who had a duty to keep this type of
>information confidentional (they were not in payroll or HR), and
>because the employee found the information in an unrestricted area we
>should not fire the employee (or even discipline her for that matter)
>and we should eliminate this policy from the handbook.


I think what you say above is exactly the guidance an attorney will give you. It sounds like it is right out of the mouth of an NLRB staff attorney. It would be a giant stretch-exercise in hair splitting to try and fire the employee based simply on the facts that the information was not her own and she had no business discussing it. You won't win my friend.

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  #6  
Unread 08-29-2002, 11:18 AM
Theresa Gegen TX
 
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Default RE: Salary Confidentiality and Employee Handbooks & Policies

Even though I think that the policy violates the NRLA and you are in a no win situation if you fire the employee and she makes a claim; as a practical matter, something must be done about what this employee did. The company could easily do something short of termination (in which case the risk of her filing any type of claim would be very little, and even if she did, she really suffered no damages, so it could be a big so what).

I would at a minimum talk to the employee about her actions and counsel her that if she ever finds confidential personnel information lying around, she is not to share it with others, but should turn it into HR. You could even ask her how she would feel if it happened to her without her consent (for example, if another employee saw her last review, and shared the comments with others). Her supervisor could tell her that she is disappointed in her behavior and expected her to be more professional (a little guilting can be a good thing).
I would not bring up the policy that violate the NLRA, but just talk about general business ethical type conduct. The employer also may want to write her up for the conduct.

So I think you can take a practical approach, that addresses the behavior of the employee, but has little risk to the employer.

Good Luck!



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  #7  
Unread 09-25-2002, 04:09 AM
thonoway
 
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Default RE: Salary Confidentiality and Employee Handbooks & Policies

[font size="1" color="#FF0000"]LAST EDITED ON 09-25-02 AT 10:17AM (CST)[/font][p]Any more input on this topic would be helpful. Especially around how far the NLRB takes this and if it would be worth it to fight or just give the employee her job back.
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  #8  
Unread 09-25-2002, 04:19 AM
Don D
 
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Default RE: Salary Confidentiality and Employee Handbooks & Policies

[font size="1" color="#FF0000"]LAST EDITED ON 09-25-02 AT 10:26AM (CST)[/font][p][font size="1" color="#FF0000"]LAST EDITED ON 09-25-02 AT 10:25*AM (CST)[/font]

Theresa is an attorney and I think she has given you excellent practical advice. The risks are well outlined for you as is the relevant law (NLRA). If you are hellbent on terminating this employee (it sounds as if 'somebody' is) you would be safer exploring other ways not related to this ticky legal issue of discussing salaries. Her attorney will point out to you in court that it is irrelevant how she came by the information, whether she picked it up in the cafeteria under a table, or gained it through conversation, she has a protected right under the Act if she chooses to mention it in discussions. Termination for violating an illegal policy is shakey at best. At least another month has passed, which would further destroy the credibility of a decision to terminate for that particular offense.
(edit)
As far as trying to guess what the NLRB agent will or won't do and looking to a crystal ball to read how they might pursue it, there is no benefit to that exercise. It will depend on many unknowns, such as: What the NLRB area office has backlogged, who represents her case to the Board, which agent gets it assigned to him/her, the energy level of that person, the ambition of the complainant, the agent's need for another notch (you appear to be one), the blatant violation of your policy as assessed by the agent and his superior, and on and on. If you have already fired her for this violation, cross your fingers. If you have not, don't. These suggestions are from someone who could not sit down for a week after our last NLRB trial. Or was it two weeks? x:-)
(edit)
P.S: I hope your company has replaced the attorney who reviewed your handbook and did not challenge that policy statement.
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  #9  
Unread 09-25-2002, 04:44 AM
Pork
 
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Default RE: Salary Confidentiality and Employee Handbooks & Policies

Everybody above is correct; however, In our field of HR this is one of those areas where the company has always had the policy and, in fact, I brief and enroll every new employee with their signature that this is a terminal offense. Out of the 182 employees in my present company, I and my assistant HR person are the only employees who know that we can never use this policy for termination. It does in fact help to keep the information private and confidential to some degree. In my 25 years in this business in small rural Mississippi communities I have never seen an employee in my company to get terminated as a result of this policy violation. I know it can not be done and the company win! Management likes this policy and so it has stayed around. At every review with our retained attorneys it has come up and we have retained the policy for the purpose of an initial attempt set the new employee's mind in the right frame of reference to keep personal and business topics confidential. Good luck Richard
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  #10  
Unread 09-25-2002, 04:53 AM
Don D
 
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Default RE: Salary Confidentiality and Employee Handbooks & Policies

Sounds to me like posting 10mph signs on the interstate. Then, before you know it, even the 70mph signs are ignored. The newest of NLRB Agents can tear a handbook and your credibility apart on the stand if you knowingly have illegal policies. Even more savory to them will be your admission that you knew they were illegal, had no intention to enforce them, and were merely attempting, all the while, to intimidate the employee into abiding by them. We'll agree to disagree Pork.
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