The District of Columbia U.S. Circuit Court of Appeals partly remanded a decision of the National Labor Relations Board, finding that the agency “prejudicially erred” in holding that a Vermont technology company unlawfully terminated a group of employees for sharing their pay and commenting on their workplace conditions, according to a May 26 ruling.
Per the court, an NLRB administrative law judge rightfully determined that Vermont Information Processing, Inc. violated federal labor laws when it fired the employees for creating and disseminating a spreadsheet that shared pay information.
This constituted protected activity under the National Labor Relations Act, according to the D.C. Circuit, and the NLRB judge did not err by expanding the relevant conduct at issue to include the employees’ electronic messages about the spreadsheet as well as the termination of one of the creators for his role in the group’s protected activity.
But when NLRB affirmed the judge’s findings, its order violated the company’s due process rights by sweeping in additional communications between the employees on subjects pertaining to a broad category of “workplace conditions.” The court held that VIP did not have notice that such communications would be considered protected conduct by the agency and therefore did not receive an opportunity to rebut arguments related to them.
“In so doing, the Board stretched the charged conduct beyond its breaking point,” the D.C. Circuit said. “New arguments and evidence related to such discussions therefore might have presented a significant defense to the Board’s workplace-conditions theory.”
The court vacated NLRB’s unfair labor practice determination with respect to three of the four named employees, remanding their cases for further proceedings. It nonetheless upheld the board’s determination with respect to the remaining employee, who originally created the spreadsheet as well as remedy ordered for that employee by NLRB.
A lone judge on the three-member panel of the court dissented with respect to the order upholding NLRB’s remedy for the employee who created the spreadsheet. The judge wrote that NLRB did not have statutory authority to issue the award.
Counsel for VIP did not immediately respond to a request for comment. NLRB declined to comment.
The NLRA protects employees’ right to communicate about their wages in person as well as over the phone and in written messages, even if they are not represented by a union, according to NLRB guidance.
The court’s decision comes amid a larger pay transparency trend. Jurisdictions in at least a dozen states have issued pay transparency laws, with a growing number requiring employers to disclose pay ranges in all job postings. Attorneys previously advised HR departments to take pay transparency compliance measures such as ensuring proper documentation of employees’ physical work locations and developing consistent pay strategies.
