Can an employer in a nonunion facility prohibit employees from discussing their salaries?

No. Section 7 of the National Labor Relations Act (NLRA) gives employees the right to make efforts to organize and discuss the terms of their employment, which can include pay and benefits information. Section 8 of the NLRA further reinforces employees' rights by making it an unfair labor practice to violate Section 7 rights, thereby making an employer policy that prohibits salary discussions unlawful. The NLRA's provisions apply to nearly all employers, with the exception of public-sector employees (employees of state, federal and local governments and their subdivisions), agricultural and domestic workers, independent contractors, workers employed by a parent or a spouse, employees of air and rail carriers covered by the Railway Labor Act, and supervisors (although supervisors who have been discriminated against for refusing to violate the NLRA may be covered).

There are some limits to the National Labor Relations Board's position on pay and benefits discussions, though employers should use caution when deciding to impose such limits.

While employers are not required to let employees talk about their pay when they should be working, singling out pay discussions while allowing other types of conversations unrelated to work might violate the NLRA.

For employee discussions to be protected, any pay conversations should advance group goals. For example, if someone mentions his or her salary merely to impress others with how important that person is, the pay discussion likely is not protected by the NLRA. Conversely, if employees are discussing wages to determine pay inequities between them, such discussion is likely protected.

In addition, it matters how workers get the salary and benefits information they discuss. Per the Texas Workforce Commission: "Employees discussing their own information are protected, as are employees discussing the pay and benefits of others if they obtained that information through ordinary conversations with others." The Commission notes, "However, if in order to get the pay and benefits information they discuss with others they access offices or files known to be off-limits to them, or cause others to break access restrictions and give them confidential information, and the company has clearly taken steps to restrict the information and uphold its confidentiality, then they may well find themselves unprotected by the NLRA."