Ask an Expert: Can We Fire an Employee for Sharing His Pay Increase with Co-Workers?

​Probably not. Under the National Labor Relations Act (NLRA), employers are prohibited from taking adverse action against employees who participate in a “protected concerted activity,” which can be defined as any discussion aimed at improving the terms and conditions of their employment. Such conversations might be about wages, benefits and workplace safety. These rights apply to most union and nonunion employees in the private sector. That said, the NLRA does exclude some workers from this protection, including public employees, agricultural and domestic workers, and supervisors (with limited exceptions), to name a few.

The National Labor Relations Board (NLRB) enforces the NLRA and defends employees whose rights may have been violated. In determining whether a certain activity is protected, the board considers three questions: 

• Is the activity concerted? 
  
• Does it seek to benefit other employees? 
  
• Was it carried out in a reckless or malicious manner? 
  

What this means is that, were you to fire the employee for sharing his increase—and his conversation was later found to be protected under the act—the NLRB could require you to reinstate the worker and/or provide back pay.

Note that NLRA protections extend to employees’ social media activity as well. So while it might be tempting to discipline an employee for tweeting that his or her supervisor is a bully, or for posting on Facebook that employees are being overworked and denied breaks, doing so may violate the law. Rest assured, however, that the NLRB doesn’t restrict employers from disciplining workers for social media content that violates other company policies. For example, if a worker writes a post threatening to harm a co-worker, that would likely breach an employer’s policy against workplace violence and warrant disciplinary action. As with any such infringement, conduct a thorough investigation before taking corrective action.

Katherine Brennan, SHRM-SCP, an HR Knowledge Advisor for SHRM 

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