Duke U. subsidiary fired worker after he discussed wages. Then he went to the NLRB.

In 2022, an employee of Duke Corporate Education in Durham filed an unfair labor practice charge alleging his supervisor had instructed workers during a virtual meeting “not to discuss their salaries.”

According to a complaint later filed by the National Labor Relations Board following an investigation, this employee — whose name is redacted — had previously raised “concerns about employees’ salaries and equity in pay.” Later that year, the employee was fired. “Not a culture fit” was the reason given for his dismissal, the worker told The News & Observer.

Duke Corporate Education, or Duke CE, is a university-affiliated organization headquartered at the American Tobacco Campus in downtown Durham. Spun off from the Fuqua School of Business, it provides customized executive education to business clients worldwide, and has additional offices in Washington, D.C., Boston, Singapore, South Africa and England.

Whether it’s a strict company policy or a manager’s casual suggestion, discouraging employees from disclosing wages is, in the vast majority of situations, an unfair labor practice under the National Labor Relations Act of 1935.

“It is viewed as basically preventing employees from gathering the knowledge that would help them get better pay,” said Jeff Hirsch, a labor and employment law professor who teaches at UNC-Chapel Hill and Duke.

Hirsch called this unfair labor practice both widespread and misunderstood.

“Employers often don’t know about labor law either,” he said. “They might not always have the best motives for doing it, but most of them aren’t aware that it’s actually illegal.”

The National Labor Relations Board doesn’t keep data on unfair labor practices (ULP) related to wage discussions. However, a 2021 study from the Washington-based Institute for Women’s Policy Research found nearly half of full-time employees had previously been prohibited or dissuaded from disclosing wages. Advocates in North Carolina say it’s prevalent.

“I’ve heard from at least one worker in every major industry that’s currently operating in our state about how they’ve been discouraged from talking about their salary with their coworkers,” said Ana Pardo, co-director of the Workers’ Rights Project at the liberal-leaning North Carolina Justice Center.

Firing employees for exercising their labor rights violates a separate clause of the National Labor Relations Act.

Workers can file unfair labor practice charges without hiring lawyers or being in unions. The former Duke CE employee told the N&O he was aware of his rights and called the regional NLRB office in Winston-Salem. “They kind of walked me through what to put in where on the form,” he said, requesting not to be named to protect future job opportunities. “The filing process was very easy.”

Investigating the Duke allegation

NLRB agents typically take two to three months to investigate the merits of unfair labor practice charges.

During this period, most charges are either withdrawn, settled or dismissed by the agency. But if the parties don’t settle and the NLRB investigation uncovers “sufficient evidence to support the charge,” then the board will issue a complaint.

In 2022, the NLRB received 18,000 unfair labor practice allegations. It issued 738 complaints upon investigation. One of those was against Duke Corporate Education. In a July 27 filing, the NLRB’s Atlanta regional office sought an order that would make Duke CE reimburse the discharged employee for missed wages as well as give “compensation for the emotional distress suffered.”

Employers face no fines for discouraging wage discussions, but the government can order back pay for workers who are fired for exercising their labor rights. The NLRB can also order employers to disseminate notices informing workers of their power to disclose salaries, which was among the remedies the Atlanta regional office included for Duke CE in its complaint.

In a response filed Aug. 10, Duke CE refuted the unfair labor practice charges. Through Raleigh-based attorneys at the firm K&L Gates, the organization denied that the fired employee had raised concerns about his pay in early 2022 or that a Duke CE supervisor had discouraged workers from discussing wages during a videoconference meeting in May.

The attorneys asked for the “dismissal of the Complaint in its entirety.”

Last-minute settlement

To resolve the matter, the NLRB had scheduled a hearing in front of a judge for Dec. 6 at the agency’s regional office in Winston-Salem. The agency then postponed the hearing to Feb. 13.

Hirsch said it is unusual for unfair labor practice charges related to wage discussions to go to hearings, even when the charge includes an unlawful dismissal allegation. Considering the cost of lawyers along with the fact the NLRB already determined the charge has sufficient supporting evidence, it usually costs employers less to reach either a private or NLRB-brokered agreement than to take it to a hearing.

The NLRB also desires earlier resolutions, stating on its website “every effort is made to facilitate a settlement between the parties.”

By January, Duke University’s own counsel had begun to represent Duke Corporate Education in the case.

Last week, days before the hearing was scheduled to start, Duke CE and its former employee reached a private settlement. The NLRB regional director approved the agreement, and the unfair labor practice charge was withdrawn.

“You should follow up with the parties for more information,” an NLRB spokesperson said in an email.

The former employee said he cannot disclose financial terms of the settlement but said it included a clause preventing him from ever working at Duke University or an affiliate organization again.

Duke University declined to comment on the agreement or the reasons for the employee’s dismissal.