HR Question of the Month: December 2017

Question: I am responsible for writing and sending our job offer letters. While I know I cannot explicitly prohibit an employee from discussing their salary, terms of employment, etc., am I allowed to declare a job offer as "Private and Confidential," stated within the job offer itself?

Response: You are correct that compensation discussions among employees are protected under the federal National Labor Relations Act (NLRA), which applies to both unionized and non-unionized employers alike. Indeed, among other things, the Act prevents an employer from interfering with, restraining, or coercing employees in exercising their statutory rights, and it specifically protects the right of employees to discuss their wages (as well as other terms and conditions of employment) with one another for their mutual aid or protection.

To this end, the employer needs to take care that the wording selected for an offer letter or in any other communication with applicants, offerees or employees, does not risk being misunderstood as a directive not to share salary information or any other similar data should an employment relationship begin. We advise that the employer omit any language or notation in an offer letter or other communication that might suggest to an offeree that he or she cannot reveal or disclose the information contained therein, including to co-workers should the offer be accepted. A notation of "Private and Confidential" may do just that, so the employer is advised to exclude it.

We appreciate, however, that the employer may want to emphasize that the information contained in an offer letter is for the "recipient's eyes only" upon receipt. If the employer’s objective is to ensure that no one other than the offeree opens the letter, you may wish to include a notation along the lines of "Private Correspondence" on the outside of the envelope in which the offer letter is contained. This would presumably alert others in the offeree's household that the envelope is for the recipient only to open. Language to this effect on the outside of an envelope is less likely to create a substantial risk of an NLRA violation. By contrast a notation on, or language in, the letter itself that suggests the recipient cannot share the information contained therein (if he or she wants to do so) can indeed expose the employer to a potential NLRA violation, and thus is ill-advised.
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Want to learn more? Click here to listen to a podcast on Job Offers and confidentiality.