Can I have a policy that prohibits employees from discussing their pay with co-workers?
Not anymore, no. On the federal level, in the past couple of years the National Labor Relations Board (NLRB) has taken the position that employees are entitled to be able to discuss compensation issues with one another (and unions) freely, and prohibiting this conversation is akin to intimidation. The NLRB has rationalized its stance, arguing that suppressing discussion of wages is an indirect means of suppressing employees' right engaged in concerted activity for the betterment of their terms and conditions of employment. Read - "we don't want to stop you from telling a union that you need a raise."
Federal prohibitions being insufficient apparently now enter the states to pile on to the prohibition. Minnesota, never one to be denied the opportunity to be at the forefront of onerous employee rights laws, this week passed the Women's Economic Security Act. One of the many provisions of the WESA requires that all employers in Minnesota, if they have employee handbooks, include a "Wage Disclosure Protection" notification - telling employees, among other things, that they have a right to be able to discuss wages amongst one another and that they can sue their employers for retaliating against employees for exercising this right. In essence, what Minnesota did for personnel file access rights (i.e. requiring that employers notify employees of their rights under state law to access their personnel files), it has again done for wage communications.
Thompson Coe’s Tips of the Week are not intended as a solicitation, do not constitute legal advice and do not establish an attorney-client relationship.