HR Base Camp Roundup – April 19th, 2022

Discussions about common illegal policies and employee salary discussions are still popular in HR Base Camp and the HR Solution Center. We also address how to coach employees who are being rude to their coworkers in this week’s Roundup. Here are our top 3 HR Q&As from the past week:

  1. Is my “no discussing salaries” policy really illegal?
  2. What about just asking employees not to discuss their salaries informally? Is that okay?
  3. What’s the right way to handle a report that one employee is being rude to their teammates?

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Is my “no discussing salaries” policy really illegal?

An employer had been enforcing a “no discussing salaries” policy for years when an employee brought it to their attention that salary discussions are protected by the National Labor Relations Act.

Answer: In this case, the employee is absolutely correct. All wage discussions by non-supervisory employees are protected activity under the National Labor Relations Act (NLRA). So, where you can prevent supervisors in your office from discussing their pay, you cannot prevent all employees from doing so. And giving all of your employees “supervisor” as their job title isn’t a solution, either. The NLRA provides a definition of “supervisor” that requires them to have real managerial authority to qualify as such.

The NLRA applies to all private employers of all sizes in all 50 states, which emphasizes why you should NEVER put anything in writing that prevents your employees from discussing their pay and benefits, nor should you ever write employees up or otherwise punish them for talking about pay. A short video on this subject and a link to our blog on the NLRA can be found here.

Having a “no discussing salaries” or a “no gossiping” policy in your handbook amounts to gifting a plaintiff’s attorney with evidence that you were deliberately in violation of federal employment laws, which will not work in your favor when the time comes to settle a claim against your business.

What’s more, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a strongly-worded memorandum late last year encouraging the NLRB to “continue exploring new and alternative remedies to ensure that [the NLRB is] providing the most effective relief possible to those who have been harmed by unlawful conduct.” 

This essentially means that the NLRB intends to hit employers harder than ever before for violations of the NLRA, and to pursue additional means of reimbursement to make employees “whole” if punitive actions are taken against them for engaging in protected activity, including talking about their wages and benefits. These measures can include providing front pay (lost wages for future work), backpay, compensation for credit card late fees incurred due to losing a job, reimbursement for the loss of a home or car that an employee suffered as a result of an unlawful discharge, and more.

In short, employment laws are no joke and it’s in your best interest as a business owner to ensure that you are in compliance with them, especially when it comes to your business’ written policies.

This issue highlights the importance of having a compliant employee handbook and being aware of the laws that apply to your employees and your business. 

If this question came through the Solution Center, an advisor would conduct a thorough risk assessment and gather details about the policy you’ve been enforcing, how it has been enforced, the employee who brought this to your attention, etc. They would then provide detailed guidance on how to proceed to best protect your practice. 

To learn more about how CEDR’s custom handbooks and expert guidance can help you prevent these types of problems, check out our “FAQ” page here.

Free Employee Handbook Guide: What you need to know. Click to download.

What about just asking employees not to discuss their salaries? Is that okay?

Employers were looking for clarification on the scope of the National Labor Relations Act and wanted to know if it prevented them from asking their employees not to discuss salaries informally in addition to preventing them from banning wage discussions as a matter of policy.

Answer: Unfortunately, asking employees not to share salary information, whether done in written policy or in a private conversation, would be running afoul of the NLRA

The law is intended to protect the employee’s right to have these discussions, and to prevent employers from taking any action that would make the employee feel like they aren’t able to do so. For more on the NLRA and the policy side of this topic, see our response to the question above.

There are some things you can do to make any pay discussions less of an issue in your office, including establishing pay bands so employees understand what they can do to increase their salaries, setting clear expectations for employees to help them understand why they make what they do, and encouraging employee concern reporting so employees know that they can come to you if salary talk that is happening around them is making them uncomfortable (you can download a free Employee Concern Reporting Form from CEDR here).

When salary talk is causing problems with morale at your office, or if it indicates some other form of policy violation by an employee (for example, if that information could only be obtained by snooping through your private records) then you may have cause to address the other issues at play. You’ll just need to be sure you avoid addressing the salary talk itself during any of those conversations. 

Of course, you’ll want to work with a Solution Center Advisor to get this right and minimize any risk to your business in the process. So, when this issue comes up for you, reach out to a qualified HR professional to determine your best and safest course of action.

Free Employee Handbook Guide: What you need to know. Click to download.

What’s the right way to handle a report that one employee is being rude to their teammates?

An employer had multiple employees report that a co-worker was being rude to them and wanted to know how they should go about addressing the situation.

Answer: No one should have to deal with unprofessional communication in the workplace. Not only does this create a toxic work environment for the rest of your team, but it can also lead to decreased morale, increased turnover, and could even erode your team’s trust in leadership.

Still, it’s important to understand that, once multiple people are bringing an issue like this to your attention, them letting you know is them doing you a favor. One bad attitude and poor communicator can infect an entire team of great performers so, when it comes to dealing with this sort of problem at your business, time is of the essence.

This is the type of situation where it is critical to get as many details as possible from the employee who is raising the concern. Someone being “rude” could mean any number of things, from two employees not getting along due to having different communication styles, to an employee making racially insensitive remarks that create an unlawful hostile work environment for your team. 

When employees come to you and let you know that a coworker is being rude to them, you may want to ask the employees who brought the issue to your attention to put their concerns in writing. Asking all of your employees to put all of their complaints in writing might be overkill in some instances. But, if your discussions with them makes it seem like there may be some bullying or wholly inappropriate behavior going, you will want to have a record of the issue on file before you begin investigating. You can use this free Employee Concern Reporting Form from CEDR for that. In addition to creating a record of your due diligence, you are more likely to get factual information from your employees about exactly what happened, who was involved, and what resolution they’d like to see when they put the situation in writing. 

Depending on what you learn during this investigative process, you’ll need to decide your next steps. Bring the accused employee in for a private conversation and ask them what’s going on without letting them know everyone is complaining about them. From there, decide whether it’s appropriate to take no action, issue a verbal warning, or provide a formal corrective action. Whatever you decide to do, you will want to make sure you document your process

In this particular situation, multiple members of the team felt like their coworker wasn’t speaking as kindly as they could to others in the office over the course of a few days. Fortunately, there did not appear to be any underlying animus or behavior that would make this an unlawful harassment or discrimination situation. This was more of an “equal opportunity” bad attitude toward everyone for no readily apparent reason.  

Employing someone who has a terrible attitude isn’t illegal, but it’s definitely something that can lead to losing your star employees. 

In this instance, when the manager sat down privately with the employee, this employee actually acknowledged that she had a lot of stress going on at home that she had been bringing into the workday with her. She owned the fact that she was letting those stressors impact her interactions with others and seemed committed to making a change. The manager used CEDR’s Employee Interaction Log Form to make a record of the discussion, and made a confidential note in the employee’s file inside HR Vault

Had that conversation not gone so smoothly, the manager could have had a sterner conversation with the employee, reminding them that her behavior was not aligned with the company’s Core Values and that this incident is being recorded as a verbal warning, with the expectation of immediate improvement in her interactions with others. 

While you don’t need to have an employee sign a “verbal warning,” you do want to ensure you’ve documented what happened, what was discussed, and what the expectations are moving forward. This can be done by filling out CEDR’s Corrective Action Form and saving it in the employee’s file. Whatever route you take, this documentation process is key to protecting your business in case the problem behavior persists and you decide to terminate this employee later.

Addressing these types of employee issues can be a delicate and sensitive process. Each situation is as unique as the employees involved, and the road to correcting the problem is paved with compliance considerations and potential legal traps. For this reason, it’s important that you consult a qualified HR professional and ensure that your employee handbook is up to date and compliant with the laws that apply to your business before attempting to solve these sorts of problems on your own.

For more on how to address problems head-on, check out our free online guide to Progressive Corrective Coaching

You can also click here to learn more about how CEDR can help you manage your team effectively and build protections for your business along the way.

Not a CEDR Member? Get additional guidance and updates in our private Facebook Group. Click to join!

Apr 18, 2022

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance based on applicable local, state and/or federal U.S. employment law that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.

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