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NLRB Judge Rules Lowe's Rules Against Discussing Salary Are Illegal

On April 17, 2018, National Labor Relations Board ("NLRB" or "Board") Administrative Law Judge, Amita Baman Tracy, ruled that the confidentiality provisions in Lowe's Home Center LLC's ("Lowe's") Code of Business Conduct and Ethics that prevent employees from discussing salary information are in violation of the National Labor Relations Act ("NLRA").

Judge Tracy held that employee discussions about wages are covered under Section 7 of the NLRA, which protects certain workers' rights to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Further, she ruled, a recent agency decision explicitly declares such rules unlawful.

The December 2017 decision to which Judge Tracy was referring involved The Boeing Company. In that ruling, the NLRB panel laid out three categories into which the Board could classify rules of employers covered under the NLRA for deciding their lawfulness. The first category would include rules that are legal in all cases because they cannot be reasonably interpreted to interfere with workers' rights or because any interference is outweighed by business interests. The second category would comprise rules that are legal in some cases, depending on their application. Finally, the third category would encompass rules which are generally always unlawful, regardless of their application. The Boeing panel determined that rules prohibiting discussion of wages belonged in category three.

Judge Tracy, therefore, ordered Lowe's to do away with the unlawful rules and notify employees about the change through inserts and notices posted in stores and distributed electronically.

The legal team at SFMS has significant experience litigating employment matters. If you have any questions regarding this subject or this posting, please contact Nick Lussier ([email protected]) or Chiharu Sekino ([email protected]). We can also be reached toll-free at (866) 540-5505.

Shepherd, Finkelman, Miller & Shah, LLP is a law firm with offices in California, Connecticut, Florida, New Jersey, New York, and Pennsylvania. SFMS is an active member of Integrated Advisory Group (www.iaginternational.org), which provides us with the ability to provide our clients with access to excellent legal and accounting resources throughout the globe. For more information about our firm, please visit us at www.sfmslaw.com.

Sources

Campbell, Braden. "NLRB Overturns Employee Handbook Standard." Law 360. Last modified on December 14, 2017.

Posses, Shayna. "Lowe's Rules Against Workers Talking Salary Aren't Kosher." Law 360. Last modified on April 18, 2018.

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