2021
- Denial of Work-From-Home Requests: A New Era of Discrimination?
- April Showers Bring
- Restrictions on Employee Social Media
- Can Employees Be Forced to Get the Covid-19 Vaccination?
2020
- Holidays...To Pay or Not to Pay, What is Required
- EEOC Update on COVID-19
- Protection of Employee Health Information
- Civil Rights Win for LGBTQ Employees
- OSHA Recordkeeping Requirements During the COVID-19 Pandemic
- The Line Between At-Will Termination and Wrongful Termination
- Regulating Firearms in the Workplace
- Social Media Use in Hiring
2019
2018
- What Not to Wear
- Vicarious Liability for Unlawful Harrassment
- Employee Surveillance & Union Formation
- A Lesson in Retaliation
- Employers May Sometimes Judge a Book By Its Cover
- Mind Your P’s and Q’s . . . and BFOQs
- Severance Agreements
- U.S. Department of Labor "Paid" Program
- Revisiting Records Retention
- Calculating the Regular Rate
- Independent Contractor or Employee?
2017
- Sexual Orientation Discrimination
- DRI Membership: It’s Personal
- Is Extended Leave a Reasonable Accommodation?
- Parental Leave
- Pay Disparity
- Religious accomodation in the workplace
- Equal pay and prior salary information
- I quit! How to avoid constructive discharge
- You Can't Shred Email
- Navigating Unemployment Claims
- Considering Criminal History in Pre-Employment Decisions
- Defamation Claims from Former Employees
- Mixed Motive Causation
2016
- Requesting Accomodation: Kowitz v. Trinity Health
- Antitrust Law in Human Resources
- An Evolving Standard: Joint-Employment
- What Does At-Will Employment Mean for Employers?
- Let's Talk About Wages
- THE FLSA: CHANGES ARE COMING
- Follow Up: Obesity and the ADA
- The Importance of Social Media Policies
- Is Obesity a Qualifying Disability under the ADA?
- Retaliation on the Rise: The EEOC Responds
- What Motivates You?
2015
- "But I thought ...
- Who’s expecting? And what is he expecting?
- Are You Still Doing Annual Performance Reviews?
- Who is Your Employee?
- The unpaid intern trap Part II
- “We’ve been the victim of a cyber-attack”
- So, a Hasidic Jew, a nun in a habit and a woman wearing a headscarf walk into your office?
- The unpaid intern trap
- Pregnancy in the workplace
- Let's talk about honesty.
- "Did You Know" Series - Part I
- Conducting an Internal Investigation
- What HR can look forward to in 2015!
2014
- The chokehold of workplace technology
- Does your company have trade secrets?
- North Dakota Construction Law Compendium for 2014
- Does the North Dakota baby boom affect you?
- Ban the Box? Why?
- The end of the world as we know it
- Everybody has an opinion
- Changes, Changes, Changes!
- Nick Grant presents at North Dakota Safety Council's 41st Annual Safety and Health Conference
- Email impairment: A potentially harmful condition
- Are Employers Required to Give Stressed-Out Employees Time Off?
2013
- Can you obtain a credit report when investigating employee wrongdoing?
- Can’t we just sidestep the ACA?
- Should Your Employees Telecommute? Part III
- Should Your Employees Telecommute? Part II
- Should Your Employees Telecommute?
- Proper Investigation of Employee Misconduct
- Battles in the Wellness War
- Rules are rules! Aren’t they?
- What's going on in Bismarck
- A glimpse ahead
2012
- Obesity as a disability under the ADA – reweighing the issue
- What’s next for your business under the Affordable Care Act?
- Criminal Background Checks
- Becoming a lawyer is a process, not an event [Section 5 of 5]
- Congress Says Yes To North Slope Energy Jobs Bill
- Test Your Knowledge of Social Media Policies and Employee Discipline
- Becoming a lawyer is a process, not an event [Section 4 of 5]
- What Every Employer Needs to Know About the NLRA
- Will the 2012 Elections Make A Difference
2011
- Where There's Smoke...
- Dress Code Etiquette: Is Casual Friday Becoming Freaky Friday
- The Next Disaster May Be Yours
- Hostile Work Environment Claims
- North Dakota Employment Law Links
- There's An App For That
- Am I a “Business Associate”? Why Should I Care?
- Do You Recognize a Cat's Paw When You See One?
- Cell Phones Can Cost a Lot, Part II
- Becoming a lawyer is a process, not an event [Section 3 of 5]
- Cell Phones Can Cost a Lot, Part I
- The Economy - What HR Professionals Need To Know
- Becoming a lawyer is a process, not an event [Section 2 of 5]
- Three New Challenges For HR Professionals
2010
Jul 07, 2016
Should co-workers discuss or compare their salary information?
I was recently listening to a radio show, where the host presented this same question in the context of a recent news story about a teenage girl who just accepted a job at a pizza parlor was fired for asking for a raise when she discovered that her male co-worker made twenty-five cents more per hour. Her male co-worker was also fired. The explanation given to both teens was that it was against company policy to allow employees to discuss wages.
Now, the radio host framed the question not as an equal gender pay question (which has gotten nationwide negative attention) but instead asked whether the employees had a right to discuss salary information. He wanted to know what his listening public thought of the situation. Quite a few people called in and were very fired up; however, what they were fired up about surprised me. The overwhelming majority of the callers could not believe that these teens thought it was ok to discuss salary information at all. One caller, who self-identified as a restaurant manager, said that if he ever found out his employees were comparing pay they would be fired immediately.
Other callers took a slightly more sympathetic approach and said that they thought it was fine for an employee to negotiate their own salary, but that it was still not right to freely discuss salary information with co-workers. Not one caller stood up for the two teens who were fired (though I did not listen to the entire program).
It similarly surprised me that no one asked the question of whether or not it was legal for co-workers to discuss salary information, or more aptly, whether an employer can prohibit such discussions from taking place. That is what we are here to examine today.
The Law:
The National Labor Relations Board has rather strong opinions about what employee actions an employer can regulate. It is strongly on the side of allowing employees to engage in pay discussion. It finds support for this stance in Section 7 of the National Labor Relations Act. Employers cannot limit an employee’s activities for the purposes of “collective bargaining or other mutual aid and protection.” The NLRB makes it clear that it considers discussing salary such a right.
Similarly, President Obama issued an executive order on April 8, 2014 prohibiting federal contractors from retaliating against employees that share salary information. This covered any gap in the NLRA regulations for federal employers.
Thus, it is not legal to prohibit employees from discussing their wages with other employees.
The Takeaway:
You cannot punish an employee for discussing pay with another employee. Don’t do it.
Proactive employers should consider adopting a policy that expressly states the company will not discriminate on this basis. The following language may be considered:
For more specific guidance, it is recommended that businesses consult competent legal counsel.
Our interest in serving you
My law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email me at amann@ndlaw.com. We promise to take your comments and ideas to heart.
Disclaimers
(Otherwise known as “the fine print”)
I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.
Reprinted with permission from an article submitted for publication in the July, 2016 Southwest Area Human Resource Association newsletter.
Let's Talk About Wages
By: Allison MannShould co-workers discuss or compare their salary information?
I was recently listening to a radio show, where the host presented this same question in the context of a recent news story about a teenage girl who just accepted a job at a pizza parlor was fired for asking for a raise when she discovered that her male co-worker made twenty-five cents more per hour. Her male co-worker was also fired. The explanation given to both teens was that it was against company policy to allow employees to discuss wages.
Now, the radio host framed the question not as an equal gender pay question (which has gotten nationwide negative attention) but instead asked whether the employees had a right to discuss salary information. He wanted to know what his listening public thought of the situation. Quite a few people called in and were very fired up; however, what they were fired up about surprised me. The overwhelming majority of the callers could not believe that these teens thought it was ok to discuss salary information at all. One caller, who self-identified as a restaurant manager, said that if he ever found out his employees were comparing pay they would be fired immediately.
Other callers took a slightly more sympathetic approach and said that they thought it was fine for an employee to negotiate their own salary, but that it was still not right to freely discuss salary information with co-workers. Not one caller stood up for the two teens who were fired (though I did not listen to the entire program).
It similarly surprised me that no one asked the question of whether or not it was legal for co-workers to discuss salary information, or more aptly, whether an employer can prohibit such discussions from taking place. That is what we are here to examine today.
The Law:
The National Labor Relations Board has rather strong opinions about what employee actions an employer can regulate. It is strongly on the side of allowing employees to engage in pay discussion. It finds support for this stance in Section 7 of the National Labor Relations Act. Employers cannot limit an employee’s activities for the purposes of “collective bargaining or other mutual aid and protection.” The NLRB makes it clear that it considers discussing salary such a right.
Similarly, President Obama issued an executive order on April 8, 2014 prohibiting federal contractors from retaliating against employees that share salary information. This covered any gap in the NLRA regulations for federal employers.
Thus, it is not legal to prohibit employees from discussing their wages with other employees.
The Takeaway:
You cannot punish an employee for discussing pay with another employee. Don’t do it.
Proactive employers should consider adopting a policy that expressly states the company will not discriminate on this basis. The following language may be considered:
[Company X] will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant.
For more specific guidance, it is recommended that businesses consult competent legal counsel.
Our interest in serving you
My law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email me at amann@ndlaw.com. We promise to take your comments and ideas to heart.
Disclaimers
(Otherwise known as “the fine print”)
I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.
Reprinted with permission from an article submitted for publication in the July, 2016 Southwest Area Human Resource Association newsletter.