Dive Brief:

Home improvement retailer Lowe’s violated the National Labor Relations Act (NLRA) when it forbid its workers from discussing their pay, a National Labor Relations Board (NLRB) administrative law judge ruled April 17.

In defending its policy, Lowe’s said the rule applied to individuals entrusted with non-public information about Lowe’s business and was intended to, among other things, ensure compliance with anti-trust laws; it did not prevent employees from discussing salary information with each other, the company said.

The judge disagreed, finding that the policy applied to all employees, and interfered with their NLRA rights to discuss the conditions of their employment. Employee discussions about wages, the core of Section 7 rights, are “the grist on which concerted activity feeds,” the judge said, noting that the Board has consistently held that rules or provisions which prohibit employees from discussing wages are unlawful.

Dive Insight:

Lowe's mention of anti-trust laws is a timely one: the U.S. Department of Justice (DOJ) has made clear that it plans to hold HR professionals accountable for anti-trust violations, like wage-fixing and no-poach agreements. Enforcement of this new initiative has begun and, while the agency declined to pursue criminal charges in its first action, it has promised to do so in the future.

Still, the NLRB judge wasn't convinced that Lowe's policy applied only to such situations; instead, the fact that all employees had to sign off on the agreement weighed heavily against the employer. Despite an employer-friendly shift at the NLRB, employers — union or not — still must ensure that they're not interfering with workers' NLRA rights.

And when it comes to pay discussions, NLRA compliance may be more important now than ever. Emboldened by the #MeToo and #TimesUp movements, management-side attorneys are reporting an uptick in demand letters, and federal officials say they expect an increase in gender discrimination charges. That, combined with a pay transparency movement, means that employees may well be discussing pay more often than they have in the past.

Some employers have taken note, and are auditing their compensation plans. Forty-eight percent of companies in a recent survey by Challenger, Gray & Christmas reported that they are reviewing their polices to assure pay equity. In the poll of 150 HR executives at U.S. companies, 17% said they aren't assessing their policies, while 28% said they're already paying women and men equal wages.

Pressure from workers, combined with new state and local laws limiting pay questions, are beginning to drive employers to standardize their compensation structures, rely more heavily on market data and discuss pay earlier in the hiring process.