Can we tell employees not to talk about their pay with each other?

Generally not. The National Labor Relations Act (NLRA) grants all non-supervisory employees (not just those in unions) the right to organize and engage in “concerted activity” for the purpose of mutual aid or protection. Concerted means “in concert,” meaning more than one employee is involved. Activities for mutual aid and protection could include discussions about wages, benefits, treatment from managers, safety issues, and just about anything else that two or more employees might have a stake in. As a result, the protections provided by the NLRA are broad. Here are a few examples of protected activity:

• Employees discussing their pay, whether via email, break room chat, or social media
• Individual employees complaining about wages or employment conditions if they reflect general workforce discontent or are attempting to get the support of coworkers to correct a problem
• Employees circulating a petition asking for better hours
• Employees refusing to work in unsafe conditions
• Employees joining with coworkers to talk directly to the employer, to a government agency, or to the media about problems in the workplace

While the NLRA doesn’t protect supervisory employees in this way, employers should be careful about who they classify as supervisory. Only those who have real authority will be exempt from the NLRA’s protections—an assistant manager or shift manager, for example, would in many cases not qualify as supervisory.

Note that a number of states have enacted pay equity or pay transparency laws that protect all employees’ ability to discuss their wages—even those in the C-suite. Under these laws, you wouldn’t be able to enforce wage confidentiality policies, even for supervisors.