Can I Be Fired for Discussing My Pay with Coworkers? — In Plain Words

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The Section 7 rights, in the NLRB's words

The NLRB's page “Interfering with employee rights (Section 7 & 8(a)(1))” states:

“Section 7 of the National Labor Relations Act (the Act) guarantees employees ‘the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,’ as well as the right ‘to refrain from any or all such activities.’”

The same page states:

“Section 8(a)(1) of the Act makes it an unfair labor practice for an employer ‘to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7’ of the Act.”

The page also says employees have the right to unionize, to join together to advance their interests as employees, and to refrain from such activity, and that it is unlawful for an employer to interfere with, restrain, or coerce employees in the exercise of their rights.

Discussing wages, as the NLRB frames it

The NLRB's page “Your Right to Discuss Wages” says:

“Under the National Labor Relations Act (NLRA or the Act), employees have the right to communicate with their coworkers about their wages, as well as with labor organizations, worker centers, the media, and the public. Wages are a vital term and condition of employment, and discussions of wages are often preliminary to organizing or other actions for mutual aid or protection.”

That page says an employee covered by the Act may discuss wages in face-to-face conversations, over the phone, and in written messages. It says policies that specifically prohibit the discussion of wages are unlawful, as are policies that chill employees from discussing their wages.

On electronic communications, like social media, that page says an employer may have policies against using their equipment for unauthorized use, though it is possible such policies could be unlawful.

That page says discussions about wages may be had when not at work, when on break, and even during work if employees are permitted to have other non-work conversations. It says these rights exist whether or not employees are represented by a union.

That page also says employees also have the right not to engage in conversations or communications about their wages.

Pay talk is one part of concerted activity

The NLRB draws the line this way: discussing pay is one example of acting together about working conditions. It is not the only example.

The NLRB's Concerted Activity page says:

“You have the right to act with co-workers to address work-related issues in many ways. Examples include: talking with one or more co-workers about your wages and benefits or other working conditions, circulating a petition asking for better hours, participating in a concerted refusal to work in unsafe conditions, openly talking about your pay and benefits, and joining with co-workers to talk directly to your employer, to a government agency, or to the media about problems in your workplace.”

The NLRB's Employee Rights page says employees who are not represented by a union also have rights under the NLRA. It says the National Labor Relations Board protects the rights of employees to engage in “concerted activity”, which is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment.

That page gives these examples of protected concerted activities:

• Two or more employees addressing their employer about improving their pay.
• Two or more employees discussing work-related issues beyond pay, such as safety concerns, with each other.
• An employee speaking to an employer on behalf of one or more co-workers about improving workplace conditions.

Both the Concerted Activity page and the Employee Rights page say a single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer's attention, trying to induce group action, or seeking to prepare for group action.

The Section 7 & 8(a)(1) page puts the same point this way: activity is “concerted” if it is engaged in with or on the authority of other employees, not solely by and on behalf of the employee himself. It includes circumstances where a single employee seeks to initiate, induce, or prepare for group action, as well as where an employee brings a group complaint to the attention of management. Activity is “protected” if it concerns employees' interests as employees.

Who is covered, as the NLRB states it

The NLRB's Employee Rights page says, under the heading “Who is covered?”:

“Most employees in the private sector are covered by the NLRA.”

The NLRB's Frequently Asked Questions page says the same in its own words: “Most employees in the private sector are covered under the NLRA.”

The Employee Rights page also says employees covered by the National Labor Relations Act are afforded certain rights to join together to improve their wages and working conditions, with or without a union.

Who is not covered, as the NLRB lists it

The Employee Rights page says: “However, the Act specifically excludes individuals who are:”

• employed by Federal, state, or local government
• employed as agricultural laborers
• employed in the domestic service of any person or family in a home
• employed by a parent or spouse
• employed as an independent contractor
• employed as a supervisor (supervisors who have been discriminated against for refusing to violate the NLRA may be covered)
• employed by an employer subject to the Railway Labor Act, such as railroads and airlines
• employed by any other person who is not an employer as defined in the NLRA

That is the full list as that NLRB page prints it. This page does not add categories to it and does not take categories away from it.

What the NLRB says an employer cannot do about pay talk

The NLRB's “Your Right to Discuss Wages” page says:

“When you and another employee have a conversation or communication about your pay, it is unlawful for your employer to punish or retaliate against you in any way for having that conversation. It is also unlawful for your employer to interrogate you about the conversation, threaten you for having it, or put you under surveillance for such conversations. Additionally, it is unlawful for the employer to have a work rule, policy, or hiring agreement that prohibits employees from discussing their wages with each other or that requires you to get the employer's permission to have such discussions.”

The NLRB's Interference with Employee Rights page gives a related example: an employer handbook rule or employment agreement (including a severance agreement) that prohibits employees from discussing or sharing information about their wages and working conditions with their co-workers, a labor organization or worker center, the media, the NLRB, or any other government agency violates the National Labor Relations Act. That page says that if a rule or agreement even could chill employees from discussing or sharing information about their working conditions, it may violate the National Labor Relations Act.

The Section 7 & 8(a)(1) page lists, among the examples of what an employer may not do: “Discharge, constructively discharge, suspend, layoff, fail to recall from layoff, demote, discipline, or take any other adverse action against employees because of their protected, concerted activities.” It also lists threatening employees with adverse consequences if they engage in protected, concerted activity.

When the NLRB says protection can be lost

The NLRB's Concerted Activity page says:

“However, you can lose protection by saying or doing something egregiously offensive or knowingly and maliciously false, or by publicly disparaging your employer's products or services without relating your complaints to any labor controversy.”

The Section 7 & 8(a)(1) page states the point in shorter form: “An employee engaged in otherwise protected, concerted activity may lose the Act's protection through misconduct.”

What the NLRB says about filing a charge and its process

The NLRB's “Your Right to Discuss Wages” page says that if an employer does any of the things described on that page, a charge may be filed against the employer with the NLRB. That page gives this contact information: call the NLRB regional office at 844-762-6572 and get assistance in filing an unfair labor practice charge, or e-file a charge.

The NLRB's Interference with Employee Rights page gives the same phone number, 844-762-6572, for assistance in filing an unfair labor practice charge, or e-filing a charge. That page says that if an unfair labor practice charge is filed at an NLRB Regional Office, a Board Agent will be assigned to investigate the case. It says that if the NLRB Regional Office determines that there is merit to the charge, it will seek remedies to stop the unlawful conduct and restore employees to the situation they were in before the unlawful conduct, through for example reinstatement, monetary relief, or voiding a rule or policy.

The NLRB's “How to Enforce Your Rights” page states the timing and filing points in its own framing: contact with the National Labor Relations Board is described as prompt, generally within six months of the unlawful activity. It says inquiries may be made of the NLRB without an employer or a union, or anyone else, being informed of the inquiry. It says a charge against an employer or union must be filed to initiate an investigation, and that charges may be filed by any person and need not be filed by the employee directly affected by the violations. It says employees are directed to seek assistance from the nearest Regional NLRB office. It also says it is illegal for an employer or union to retaliate against employees for filing charges or participating in NLRB investigation or proceedings.

That page also describes remedial relief as the NLRB states it: if the NLRB determines that rights have been violated by an employer or a union, appropriate remedial relief may be awarded. It gives this example: if an employer has unlawfully fired an employee, the NLRB may order the employer to rehire the employee and to pay the employee lost wages and benefits. It says that in all cases, the NLRB seeks to undo as much as possible the effects of whatever unlawful conduct has occurred, including by ordering the employer or union to stop violating the law and to post a remedial notice informing employees of their rights under the National Labor Relations Act.

This page covers the federal NLRA material on the NLRB pages listed below only. It does not cover any state rule.

This page cannot say what the NLRA means for a particular job or a particular firing. The NLRB contact information printed above is the contact information the NLRB's own pages give.

What the NLRB pages themselves note

The NLRB's “Your Right to Discuss Wages” page carries this note: “*This page was posted by the Office of the General Counsel, and like other similar pages on nlrb.gov, it has not been reviewed or approved by the Board. The information contained here may be subject to unstated exceptions, qualifications, limitations, and it may be rendered unreliable without prior notice by changes in the law.”

The NLRB's Interference with Employee Rights page carries a similar note: it says the page was posted by the Office of the General Counsel, and it represents the General Counsel's positions. It has not been reviewed or approved by the Board. The information contained there may be subject to unstated exceptions, qualifications, or limitations, and it may be rendered unreliable without prior notice by subsequent changes in the law.

This page is general information only. It is not legal advice.