Here’s a familiar scenario: your counsel advises you about changes in the law requiring you to restructure your pay plans for certain employees, but when you distribute the new plans, one or more employees resist, complain, and refuse to sign. As addressed in our Coffee Break article published on this same date, No secrets: Prohibiting employee discussions about pay, you cannot prohibit these employees from disclosing and discussing pay information with each other. But as for employee resistance and refusal to sign new pay plans, read on for tips on handling this situation.
- pressure the employee to sign the pay plan;
- threaten to fire the employee for refusing to sign the pay plan; or
- reprimand the complaining employees for talking to one another and “causing trouble” by encouraging other employees to complain.
Even employees not represented by a union have rights under the National Labor Relations Act (NLRA). Under Section 7 of the NLRA, it is an unfair labor practice for an employer to interfere with, restrain, or coerce employees in exercise of rights guaranteed under that Section, including engaging in “concerted activity.” Concerted activity is protected group activity by employees, such as acting for their mutual aid or protection regarding terms and conditions of employment, including pay. Even a single employee can engage in protected concerted activity if s/he 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, certain workers are not covered by the NLRA, including independent contractors, and supervisors.
So, what should employers do in this scenario?
- meet with the employee(s) to discuss their concern(s) and provide a response or explanation for the change, as appropriate;
- consider evaluating whether there is any merit to the concerns, and a potential simple resolution of the same;
- let the employees know that they are subject to the new plan once effective, and their refusal to sign does not exempt them from being paid under the plan; and
- obtain a signature confirming only receipt of the pay plan, or document that the plan was provided to the employee, but s/he refused to sign.
If the employee expresses that they do not want to work under the new pay plan, employers should consider having a private conversation with the employee to see if the employee is resigning. Always have another manager present as a witness during such discussions. Given the intersectional issues present in such situations, we recommend you contact experienced employment counsel for guidance on how to proceed in your specific case.