NLRB UPDATE: LET’S TALK ABOUT WAGES – OR NOT?

Some fast food workers have been protesting wages that they say are too low only to be told by their bosses that they are violating a company rule against talking about their wages. This happened recently to some employees of a Chipotle restaurant in Missouri.

The employees were participating in the union’s “Show Me 15” campaign that seeks to raise the minimum wage in Missouri to $15 per hour. A restaurant manager told the employees not to discuss their wages and that the managers had been told to report any wage discussion up the corporate food chain.

The union cried foul, filing an unfair-labor-practice charge with the NLRB, and the administrative law judge who heard the case agreed.

As the ALJ explained it, employees have a fundamental right under the NLRA to discuss their wages. Section 7 of the NLRA protects employees’ rights to engage in concerted activities for their mutual aid or protection. This section of the act has consistently been interpreted by the NLRB as protecting employees’ right to talk about their wages and other terms and conditions of employment.

Often employers believe this provision doesn’t apply to their workplace if the employees don’t have a union. Not true! Most private employees – unless they are supervisors or “confidential employees” or work for small employers with no impact on interstate commerce, for instance – are protected by the NLRA.

In the Chipotle case, the employees were working with a union, but the issue revolved around the employees’ exercise of their right under the NLRA to discuss their wages together. Their “protected concerted activity” was participating in the protests seeking to be paid $15 per hour, as lower-wage workers have been doing all over the country.

The NLRB and its ALJs have made several similar rulings in recent months. 

  • In a case involving a dental practice, an ALJ found the practice’s policy stating “Salaries and wages are a private matter” was an unlawful restriction of employees’ Section 7 rights.
  • The NLRB ruled in another case that a weatherizing contractor illegally fired an employee because it believed that he had discussed wages with his co-workers.
  • In a case involving an employer operating several Burger King restaurants in the Detroit area, the ALJ found that the employer unlawfully warned an employee who participated in a similar $15-per-hour wage campaign.
  • An ALJ last year told an employer that operated a Hooters restaurant in California that it was illegal to prohibit waitresses from discussing their tips with each other.

Is there a lesson in this? Yes. Employees have a legal right to talk about their pay.

It can certainly be argued that a discussion of employee wages shouldn’t harm a healthy employer-employee relationship. One school of thought even believes that employees work better when they are content with the terms and conditions of their work. And maybe we all can watch what happens with this guy. His employees are probably not complaining about their wages.

Access timely and reliable insight and information on a wide range of labor and employment issues with a free trial to the Labor & Employment Law Resource Center .