Fired over discussing salary with co-workers?

[justalayman]

The NLRA does not just apply to union activity or collective bargaining matters. It applies to any matters in which employees work together to better their working conditions, even when that activity is done informally rather than through the formal vehicle of a union. And that is the aspect of the NLRA that surprises many employers. Exchanging information about significant aspects of their employment is one way employees may work together to better their working conditions. It is not a formal process, but it is still a protected activity since information is important to making decisions about pursuing improvements in working conditions, including decisions about whether to start the process to make the place of employment a union shop.

Fair enough


But how can the differentiation between a sole effort and a concerted effort be determined. If there is a wage disparity and it is brought to the employers attention, doesn't the fact it was derived from a conversation between two employees alone make it implicit it is concerted effort to remedy wage disparity of all employees in the workplace?

 

[commentator]

Here in the real world, in today's business climate, this OP is just plain old out of there-- has self identified as a problem to the employer from the get go, in a medical office, which is as I have often said, one of the dodgiest places in the world to work. Come in and start asking everybody what they make, inform your supervisor and your co-workers what you think is "fair" as far as wages go and start telling them how to run their business and see how much good your complaints to the NLRA do you, just how adamantly they start preserving the rights of employees in a small medical office to discuss their salaries if the employer doesn't want them to. I doubt, seriously, if there's even a possibility of unemployment insurance for this OP in this situation. Depends on whether or not it was brought up in the hiring agreement. And how long the person has worked there. It's a lovely idea, but it just isn't happening.

 

[Taxing Matters]

Fair enough


But how can the differentiation between a sole effort and a concerted effort be determined. If there is a wage disparity and it is brought to the employers attention, doesn't the fact it was derived from a conversation between two employees alone make it implicit it is concerted effort to remedy wage disparity of all employees in the workplace?

As with any factual determination, the fact finder reviews all the evidence that is brought forth by the parties and determines from that whether the action was part of a concerted effort to work together. Sharing the wage information among themselves is a classic protected activity as sharing information is a concerted effort — it involves more than one employee. The next step of going to the boss is a separate action of the employee(s) involved, and the employee going to the boss just for herself (even if also complaining that others are not getting paid enough at the same time) would likely not be treated as a concerted effort. The employee would need to be going to the boss on behalf of others as well as herself.

From the facts presented here it may well be, as others have said, that the OP went too far and engaged in activity that is not protected and if so, her boss could legally fire her for that unprotected activity. But while I understand why an employer would bristle at an employee asking co-workers about their pay on her first day, that at least is protected no matter how much the employer may dislike it. Going beyond that is where the employee may run into trouble.

 

[justalayman]

Brought what up in the hiring agreement?

Attempting to enforce a rule that is unlawful doesn't make the rule lawful and enforceable


Depending on all of the facts the op could have a viable claim. Such claims are sometimes rewarded with monetary damages and requirements to extend an offer of returning the employee to their payroll. The venue does not mean the employee must give up their rifhts.


Now speaking of being in the real world; if my susoecions are correct the termination was not based on the wage issue but that the op is an abrasive self righteous jerk with an attitutude problem.

 

[cbg]

I disagree. It is not quite that simple. If the employee is having that discussion as the representative of those other employees (and it doesn’t have to be a formal union position) then it would be protected as part of a concerted effort to improve working conditions under the NLRA. If the employee is simply complaining about another person’s wages on her own and not as a part of a concerted effort of both of them to better their working conditions that would not be covered.

What this poster has stated is that on her very first day, she started asking other employees what they were paid. I'll acknowledge that this is likely protected, though on your very first day it's not a move designed to win friends. As evidenced by the fact that the other employees refused to answer. Nonetheless her intent still appears to be to demand that the employer justify to her why he is paying OTHER employees the way they are paid. Not because they want her to represent them in a concerted effort to improve conditions - they don't even want to answer her questions. There's no evidence that they are dissatisfied at all. I have a lot of respect for you, Tax - an awful lot. I always have. But I absolutely cannot find any way this particular fact pattern is going to be protected or appropriate. Yes, there are other situations where one employee talking to the employer on behalf of other employees could be protected. But not this one.

I say again, I would fire her on the spot; if she sued I would defend that firing all the way up the line, and if she filed an agency complaint likewise. The circumstances she is describing are in no way appropriate and I stand by that.

 

[Taxing Matters]

What this poster has stated is that on her very first day, she started asking other employees what they were paid. I'll acknowledge that this is likely protected, though on your very first day it's not a move designed to win friends.

Agreed.

Nonetheless her intent still appears to be to demand that the employer justify to her why he is paying OTHER employees the way they are paid. Not because they want her to represent them in a concerted effort to improve conditions - they don't even want to answer her questions. There's no evidence that they are dissatisfied at all. I have a lot of respect for you, Tax - an awful lot. I always have. But I absolutely cannot find any way this particular fact pattern is going to be protected or appropriate. Yes, there are other situations where one employee talking to the employer on behalf of other employees could be protected. But not this one.

You may be correct. As I said before, the details of her conversation(s) with the boss on this would matter a lot. If, as you describe it, she was on a one person mission to change the pay structure of the employer that is not protected, would surely tick off the boss, and would likely lead to a fast (and legal) termination. My only point here has been that it is not automatic that the boss could fire the employee when the employee comes in to discuss the salaries paid by the employer to herself and others. If there is evidence that she is there on behalf of herself and others, that is generally a protected activity and the employer must act with care.