Federal Labor Law, the Wage Theft Prevention Act, and Water Cooler Discussions

January 16, 2012

By: Tyler T. Hendry

As New York employers should be aware, the first annual notice to employees required by the Wage Theft Prevention Act ("WTPA") must be distributed by February 1, 2012.  Although the requirements of the WTPA have been grabbing recent headlines, this post addresses one unavoidable by-product of the annual notice requirement -- the reality that the distribution of these annual notices is likely to lead to workplace discussions among co-workers regarding wage and salary information.  As a reminder, blanket rules -- whether formal or informal -- prohibiting employees from discussing their pay and benefits with their co-workers are unlawful under the National Labor Relations Act ("NLRA").

The NLRA provides private sector employees the right to engage in protected concerted activity regarding their terms and conditions of employment.  This includes, as a general rule, employees' right to share and discuss information with their co-workers about their wages, benefits, and other working conditions.  This protection extends to both union and non-union workplaces.  Accordingly, employers may not promulgate or enforce any type of policy that prohibits such discussions.  Even a broadly-written confidentiality policy may be found to violate the NLRA if an employee could reasonably view the policy as restricting discussions with co-workers about wages and other working conditions.

Employers should review their policies to ensure that there are no explicit or implicit prohibitions on wage discussions among employees that might be found to violate the NLRA.  In addition, managers should be careful to avoid knee-jerk reactions to hearing such discussions that will inevitably arise from the distribution of the annual WTPA notice to employees.