Q&A: Can employers prohibit supervisory level employees from discussing wages?
Q&AWage and Hour
Question: We have a supervisor who won’t stop talking about his wages; can we stop him from doing this?
Answer: Yes, you can prohibit a supervisor from discussing wages, but only under certain conditions. First, the individual’s duties must be considered supervisory under the National Labor Relations Act (NLRA). Second, the discussion cannot involve allegations of wage discrimination under Title VII of the Civil Rights Act or some other law.
How is a Supervisor Defined? Make Sure You’re Clear
The NLRA protects an employee’s ability to discuss his/her wages, hours, and working conditions with coworkers, but the NLRA expressly excludes supervisors. A supervisor is defined as any individual with the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, including individuals who recommend those actions.
A recent case reminds employers of the power of this distinction. In that case, a supervisor was discussing his working conditions during a union organizing drive and was eventually let go because employees indicated that his mistreatment of them drove them to unionize. After the termination, the supervisor claimed that he was actually fired because of his comments during the organizing drive. The court said it didn’t matter, because his supervisory status meant that the NLRA did not protect his comments (Dang v. Maruichi American Corp., Cal App, Sept. 2016).
What is the Motivation Behind the Supervisor’s Wage Complaints?
Although supervisors can be prohibited from discussing wages, in most situations it’s best to deal with the underlying issues at the same time or in place of any discipline. Sitting the supervisor down and asking what’s really going on, what they’re upset about, and how can this be worked out will usually lead to better outcomes. Once you know what the real problem is, be prepared to discuss why your pay scale is the way that it is. After these discussions, you can always go back and discipline the supervisor if you choose to.
Equal Pay and Compensation Discrimination
One final caution: If the supervisor’s wage complaints are tied to allegations of discrimination, then watch out – those complaints may be protected under federal or state antidiscrimination laws, regardless of supervisory status.
Without carefully considering the multiple factors involved, employers may put themselves in a risky situation. Before taking any disciplinary action, contact your Vigilant employment attorney for advice.