HR Snapshot
CAN WE TELL EMPLOYEES NOT TO TALK ABOUT THEIR PAY WITH EACH OTHER? Generally not. The National Labor Relations Act (NLRA) grants all non-supervisory employees (not just those in unions) the right to organize and engage in “concerted activity” for the purpose of mutual aid or protection. Concerted means “in concert,” meaning more than one employee is involved. Activities for mutual aid and protection could include discussions about wages, benefits, treatment from managers, safety issues, and just about anything else that two or more employees might have a stake in. As a result, the protections provided by the NLRA are broad. Here are a few examples of protected activity: • Employees discussing their pay, whether via email, break room chat, or social media • Individual employees complaining about wages or employment conditions if they reflect general workforce discontent or are attempting to get the support of coworkers to correct a problem • Employees circulating a petition asking for better hours • Employees refusing to work in unsafe conditions • Employees joining with coworkers to talk directly to the employer, to a government agency, or to the media about problems in the workplace • While the NLRA doesn’t protect supervisory employees in this way, employers should be careful about who they classify as supervisory. Only those who have real authority will be exempt from the NLRA’s protections— an assistant manager or shift manager, for example, would in many cases not qualify as supervisory. Note that a number of states have enacted pay equity or pay transparency laws that protect all employees’ ability to discuss their wages—even those in the C-suite. Under these laws, you wouldn’t be able to enforce wage confidentiality policies, even for supervisors.
Answer from Rachel, SHRM-SCP
CAN WE DO REFERENCE CHECKS FOR ONLY CERTAIN ROLES? Yes, as long as you’re not discriminating based on protected classes or characteristics, you can conduct reference checks for certain roles but not others. For example, you may decide that supervisory roles or positions with access to sensitive information warrant this additional step during the hiring process. As with any reference check, don’t forget to get the candidate’s permission first. That said, some employers like to have consistent practices across the board to reduce the risk of a discrimination claim. Employees can file claims based simply on the appearance of discrimination, and employers may be held liable even if they didn’t intend to discriminate. In this case, doing (or not doing) reference checks for all roles would be the most risk-averse approach. If you would like to check references only for certain employee groups, you should consider whether your policies and practices are disproportionately affecting employees who share a protected characteristic (race, sex, age over 40, etc.). If candidates who were rejected after a reference check were all or mostly the same gender, for instance, you’d want to be sure that Answer from the reference checks were both a business necessity and that there was no Daniel, SHRM-CP other policy you could implement that would have less of an impact on the protected group.
JULY/AUGUST 2022 [ 22 ]
