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Monday, June 16, 2008

The intersection of techology and labor law: new website for posting of compensation information raises concerns

George's Employment Blog reminds us that an employer cannot ban its employees from discussing wage and benefits without violating the National Labor Relations Act. According the NLRB's recent decision in Windstream Corp.:

[A]n employer rule which regards employee compensation and benefit information as confidential and prohibits employees from discussing such information with one another violates Section 8(a)(1) of the Act.... In examining whether a particular rule so violates Section 8(a)(1), the Board's analysis requires that the rule be such that "Employees would reasonably construe the language to prohibit Section 7 activity."

Windstream's challenged policy stated:

Employee compensation, benefits, and personnel records and information are confidential.

Only employees who need to know such information in the course of employment should access such employee information.

You should not disclose this information to any other Windstream employee unless that employee has a need to know such information in the course of employment.

Except as required to comply with law, you should never disclose this information to any party other than the employee or individual whose access has been authorized by the employee.

This does not prohibit you from disclosing or discussing personal, confidential information with others, so long as you did not come into possession of such information through access which you have as part of your formal Company duties.

(Winstream added the last sentence after the filing of the unfair labor practice charge). The NLRB found that the language violated Section 8(a)(1) because it was "so broadly stated that employees could and will construe them to prohibit discussions of wages and working conditions with others."

I was again reminded of this line of cases when I read an article in Business Week magazine this week touting the launch of According to's press release, it will make available user-submitted, anonymous compensation information organized by company:

Compensation information by company and position. Unlike most salary services that only report aggregated data by generic position type and industry, Glassdoor provides details of salary, bonuses, and other compensation for actual positions and titles at specific companies. For example, users can see exactly what a software engineer at Google makes, along with bonuses and types of equity grants, in comparison to a software development engineer at Microsoft.

If employees have a statutory right to discuss compensation and benefit information, but lack the same right to use an employer's e-mail system for Section 7 purposes, can a company prohibit its employees from accessing without violating the National Labor Relations Act? The answer seems to be yes, as long as the prohibition only extends to company time and company equipment. A more broadly draft ban that applies to what employees do on their personal time very well might run afoul of the Windstream line of cases.

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