Are your employees complaining about wages?

By: Michelle Higgins

Publication: Benefits & Compensation Regulatory Alert

Date Posted: 03/04/2021

Wage complaints? Employeeactions might be protected

The economic fallout many businesses are experiencing because of the pandemic may lead employees to vent to one another about their wages.

While that may not bode well for morale, those conversations most likely would be protected activity under the National Labor Relations Act (NLRA).

In October, the National Labor Relations Board (NLRB) released several Division of Advice memos. These memos are essentially responses to legal questions that have come up.

Once a dispute has ended, some of the memos are released to the public as required under law, while others are released at the general counsel’s discretion. It’s a way for employers to have a glimpse at what to do (or not to do) regarding NLRA compliance.

Pandemic Payroll Perils in 2021

Case in point

One recent memo had to do with a tip pooling controversy at a New York restaurant. Four restaurant employees were having discussions and complaining about the tip pooling procedures and, as a result, they were fired.

Apparently, the employer’s tip pooling system had been a source of employee frustration since the restaurant opened.

During various pre-shift and staff meetings, some employees, including the four that were fired, objected to the non-transparency and unfairness of the employer’s tip compensation system, whereby management would count and divide tips among employees regardless of their shift.

The workers proposed that employees be apprised of the tip totals for each shift and that the tip pool be divided between the lunch and dinner shifts because dinner work was more stressful and busier than the lunch shift.

The employer repeatedly told employees, including the four, to not complain or talk to each other about the tip issue, and that doing so could endanger their jobs — which it eventually did.

In the end, the NLRB decided that the four employees’ tip pooling discussions were protected activity and their conversations were a motivating factor in their discharge.

Key to remember: Employers may not discharge, discipline, or threaten employees for certain protected concerted activity, such as discussing wages. Employers are also not allowed to coercively question them about this activity.

The NLRA states that employees have the right to act with coworkers to address work-related issues in many ways, such as:

  • talking with one or more coworkers about wages and benefits or other working conditions,
  • circulating a petition asking for better hours,
  • participating in a concerted refusal to work in unsafe conditions,
  • openly talking about pay and benefits, and
  • joining with coworkers to talk directly to the employer, to a government agency, or to the media about problems in the workplace.

A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.

However, an employee may lose protection by saying or doing something egregiously offensive or knowingly and maliciously false, or by publicly disparaging the employer’s products or services without relating the complaints to any
labor controversy.

About the author
Michelle Higgins - Human Resources Editor

Michelle Higgins is an Associate Editor on the Human Resources Publishing Team at J. J. Keller and she creates content on a variety of employment-related topics including benefits, compensation, overtime, wage deductions, exempt/nonexempt employees, health and retirement plans, independent contractors, and child labor.

Expert Help Icon

Have a compliance question for Michelle? The J. J. Keller Expert Help tool provides you direct access to Michelle and other trusted experts to help answer your toughest compliance questions.