Mason-Draffen, a business reporter, writes a column about workplace issues.
DEAR CARRIE: My employer sent my performance evaluation by email. It states that I must not share the information with my co-workers. The company also says we cannot share compensation information. Is this legal? Also, does my employer need to send me a hard copy of my evaluation or is the email sufficient? — Evaluating the Process
DEAR EVALUATING: Your employer’s restrictive policy may be out of bounds. The federal regulation that comes into play here protects workers’ right to talk about such things and prohibits employers from obstructing such discussions, especially among employees who are considering unionizing.
“The National Labor Relations Act prevents employers from establishing policies that would prohibit employees from discussing and disclosing information regarding their own terms and conditions of employment,” said employment attorney Sheree Donath of the law firm Cory Rosenbaum P.C. in Uniondale. “Employees must be free to organize, and preventing discussions about the terms and conditions of employment among coworkers could prevent them from organizing.”
And regarding your situation, she added, “An employee may be able to challenge the confidential nature of the performance evaluation, the same as the requirement to keep his/her compensation secret.”
Of course, as with any law, there are some exceptions.
For example, employers may be able to prohibit discussions when the employee is supposed to be working, Donath said.
“However, if the employee would be able to make small talk about the weather, or television or anything else, then the employee would be free to speak about the terms and conditions of his/her employment,” Donath said.
Also, the NLRA applies to discussions within the organization only, she noted; so an employer may be able to establish a policy that prohibits employees from sharing the information with people outside the organization.
Even though you may have the freedom to discuss your wages or compensation, you should be careful how you use that freedom.
“Once you share information related to your compensation or the terms of your employment,” Donath said, “it may become difficult for you to maintain control over others with this information.”
Employers often have confidentiality policies that prohibit employees from sharing certain information with their colleagues, Donath said. Companies establish these policies in an attempt to control the working relationship, she said.
“ Employers also seek to implement such policies in an effort to prevent a disruptive working environment,” she said. “In creating these policies, the company knows that most employees will adhere to the policy and not question it.”
But you questioned your company’s policy and now you know your employer’s prohibitions could be illegal.
It bears noting that, with limited exceptions, the NLRA applies to all private employers with at least one employee, Donath said. It doesn’t cover government employers. And the law doesn’t generally cover supervisory employees, although managers discriminated against for refusing to violate the NLRA may be covered, Donath said.
As to your last question, your company probably doesn’t have to send you a hard copy.
“I do not believe you must receive a hard copy of the review rather than it being sent by email, unless the employer has a policy that requires you to be handed a hard copy of the review,” Donath said.
Having an email could prove more useful.
“It may be beneficial to you to get a copy by email, because there is always a record of an email,” Donath said. “and it cannot be erased or lost easily, like a hard copy document.”
For more information, contact the National Labor Relations Board, which enforces the NLRA, at 718-330-7713.