As discussed in an earlier post (NLRB OKs Employee Bad-Mouthing on Social Media), the National Labor Relations Board is not just in the business of regulating union activity. According to law, two or more employees (regardless of union affiliation) are protected in acting together to improve the conditions of their employment, including wages and hours.
This is exactly the law that Jamison Dupuy claimed was violated when he was terminated by Northeastern Land Services, Ltd. (“NLS”), a temporary employment placement agency, for violating the confidentiality provision of his employment agreement by sharing the details of his compensation with a third party. The Board and, subsequently, the Court of Appeals for the First Circuit (Boston) agreed. See NLRB v. Northeastern Land Servs., Ltd., No. 10-2156 (1st Cir. June 22, 2011).
Before being placed with companies by NLS, NLS required Dupuy to sign a temporary employment contract which said, in relevant part:
Employee…understands that the terms of this employment, including compensation, are confidential to Employee and the NLS Group. Disclosure of these terms to other parties may constitute grounds for dismissal.
The Board and the appeals court held that the confidentiality provision had a “chilling effect” on Dupuy’s right to engage in concerted activity (i.e., protest his wages and pay).
Over the past year, we have observed the Board take an aggressive stance on “protected activity” in the context of social media use and social media policies. With a federal appeals court now in tow, it would not be surprising for the Board to place confidentiality provisions regarding wages and pay on its agenda right next to social media.