crossposted from unbossed
How many of you have been told by your employer: "Do not discuss your pay [or benefits or other working conditions]" OK, I see that's almost everyone. And does your employer's employee handbook include a rule that forbids discussing your pay and other working conditions? What? You don't have a handbook? You have one but didn't read it? OK of the rest of you? I see lots of hands.
If you are in the private sector, the law says these oral or written rules are illegal. If your employer disciplines your for discussing your work conditions, especially with your fellow workers, that also is a violation. It entitles you to reinstatement, backpay, expungement of the discipline from your files and, boy employers hate this one, a written notice to employees that employees have these rights and the employer will not violate them.
You don't believe me?
I understand that it seems impossible these rules could violate the law because they are so common, but if you don't believe me, check out what the D.C. Circuit Court of Appeals decided in Cintas Corp. v. NLRB, Case No.05-1305 (D.C. Cir. Mar.16, 2007).
The court began by saying that Section 7 of the National Labor Relations Act (NLRA) 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 . . . ." 29 U.S.C. § 157. The court affirmed that employers violate the law when they interfere with these rights.
The court then explained that Sec. 7 protects employees rights to talk with their working conditions and that this discussion is fundamental to organizing:
{W]e have previously enforced its protection of an employee’s right to discuss the terms and conditions of her employment with other employees . . .and with nonemployees . . .. The Board here held that the confidentiality language in the Company’s employee handbook violated section 8(a)(1) because a Cintas employee could, in the Board’s view, reasonably interpret the handbook’s confidentiality language to restrict her section 7 right to discuss wages and other terms and conditions of employment with other employees or with the Union.
Cintas argued that its rule didn't violate the NLRA because for a number of reasons, but the Court of Appeals said that all the law requires is employees might reasonably construe employer rules to prohibit their protected activities. Such rules chill concerted activity and organizing activity.
Reactions
Decisions of this sort are a boondoggle for management consultants and attorneys. This decision affirms standard law of longstanding. It is good for these professionals to inform clients; however, employer newsletters are agog with this news. For example this link here advises employers:
Employers should not assume that the release forms they have used and enforced for years still suffice. Now is the time to pull out and review those forms in light of the above decision. In fact, given the complexity of statutes and court decisions that apply to releases of federal claims7 , it is well worth the cost to have your employment attorney review the release in light of these recent interpretations. Proactive review now may save mountains of dollars later.
This link reviews the case, provides advice, and ends with this summary:
Jackson Lewis attorneys are available to assist employer in drafting, reviewing, and revising lawful and effective confidentiality and non-disclosure provisions in employee handbooks, personnel policies, employment agreements, and other documents and statements.
One interesting link at a trade secret blog provides some interesting views.
And at Change to Win, they cite this case (the NLRB decision that was just affirmed by the court of appeals) as one of many violations by Cintas:
* Cintas has not paid overtime to thousands of drivers nationwide. More than 2,400 drivers are suing Cintas for $100 million claiming that it has violated federal and state wage laws."
* Cintas already paid California drivers $10 million to settle claims that they were denied overtime.
* The National Labor Relations Board (NLRB) has ruled that a company policy prohibiting workers from talking about their wages and working conditions is illegal.
* The NLRB is currently charging Cintas with illegally disciplining union supporters, threatening workers with plant closures, and unlawful interrogations.
* The NLRB is seeking to revoke a previous settlement at a Cintas facility because the agency is charging new illegal activity by Cintas management, which violates Cintas’ prior agreement not to obstruct workers’ rights.
* Cintas has agreed to pay $25,000 in back pay to settle an employee’s charge that she was fired for union activity.
* In the past two years Cintas has settled dozens of other charges of violating workers’ rights and Cintas’ anti-union consultant, Craft Baressi, also settled with the NLRB on charges it violated labor law.