Can You Stop Employees from Comparing Their Wages?

7/17/2019 Can You Stop Employees from Comparing Their Wages?

http://slidepdf.com/reader/full/can-you-stop-employees-from-comparing-their-wages 1/13

Toll Free: 877.880.4477

Phone: 281.880.6525

www.hrp.net

Can You Stop Employees fromComparing Their Wages?

http://www.hrp.net/

http://www.hrp.net/



www.hrp.net

There are many legitimate reasons why two of your employees — with

roughly equal job responsibilities and possibly even the same title — are paid

different wages. One basic example might be job performance. Or the answer

could lay in the labor market conditions at the time each of the employees

was hired. Then again, it could be that the employees only believe their jobsare similar, when in fact, they aren't.

Whatever the reasons, it's not hard to predict that if two employees who

think they do the same job begin to compare paychecks, trouble can soon

follow. That's why some employers forbid or discourage workers fromdivulging their wages to each other. To avoid workplace squabbles, it may

seem like a good idea to create a policy, formal or informal that prohibits this

topic of discussion.

http://www.hrp.net/

http://www.hrp.net/



www.hrp.net

In fact, many employees believe they are barred from talking about pay. In a

survey taken a few years ago by the Institute for Women's Policy Research,

nearly one quarter of respondents were under the impression they are

specifically prohibited from talking about their wages (whether or not there is

a formal policy). In reality, implementing such rules might be illegal,depending on the particulars of the policy and the state you operate in.

http://www.hrp.net/

http://www.hrp.net/



Protected Speech

www.hrp.net

Section 7 of the National Labor Relations Act (NLRA) "protects non-

supervisory employees who are covered by the Act from employer retaliation

when they discuss their wages or working conditions with their colleagues aspart of a concerted activity to improve them," according to a Department of

Labor "fact sheet" on the topic.

http://www.hrp.net/

http://www.hrp.net/



www.hrp.net

The Labor Department also explains that these protections remain in place

"even if there is no union or other formal organization involved in the effort.“

The term "concerted activity" has been defined and redefined numerous

times by courts in labor dispute cases. Basically, it involves "two or moreemployees acting together to improve wages or working conditions,"

according to the NLRB.

In a March 18, 2015 memo to the Board's enforcement personnel, the NLRB's

top lawyer wrote that even "well intentioned" employee policy manuals caninadvertently contain rules "that would inhibit employees from engaging in

activities protected by the [NLRA]."

http://www.hrp.net/

http://www.hrp.net/



www.hrp.net

Here are three examples included in the memo:

• "Do not discuss customer or employee information outside of work,

including phone numbers and addresses.“

• "Sharing of overheard conversations at the worksite with your coworkers,

the public, or anyone outside of your immediate work group is strictly

prohibited.“

•"Discuss work matters only with other employees who have a specificbusiness reason to know or have access to such information.“

• "If something is not public information, you must not share it."

http://www.hrp.net/

http://www.hrp.net/



Vague Language

www.hrp.net

The problem with such language, said NLRB General Counsel Richard F. Griffin

Jr., is that employees reading it could "reasonably" assume that the ban covers

terms and conditions of employment. Similarly, "a confidentiality rule thatbroadly encompasses 'employee' or 'personnel' information, without further

clarification, will reasonably be construed by employees" to restrict their

rights under the NLRA, the memo states.

http://www.hrp.net/

http://www.hrp.net/


http://slidepdf.com/reader/full/can-you-stop-employees-from-comparing-their-wages 8/13www.hrp.net

Language, on the other hand, that clearly refers to other kinds of proprietary

business information, such as a client list or trade secret, would pose no

problem if prohibited.

As noted, the NLRA's restrictions on pay confidentiality rules apply only tonon-supervisory employees. The law also does not cover public sector and

nonprofit religious organizations.

Last year, an effort to implement a broader federal ban on "pay secrecy" rules

— called the "Paycheck Fairness Act" — failed to pass muster in Congress.However, President Obama subsequently issued an executive order

prohibiting federal contractors and subcontractors from firing or disciplining

any employee on the basis of disclosing his or her compensation to another

employee.

http://www.hrp.net/

http://www.hrp.net/



States Weigh In

www.hrp.net

Meanwhile, California, Colorado, Connecticut, the District of Columbia, Illinois,

Louisiana, Maine, Minnesota, New Hampshire, New Jersey and Vermont have

their own laws against punishing employees for discussing their pay.

For example, California's Labor Code (Section 232) includes these points: "No

employer may do any of the following:

a) Require, as a condition of employment, that an employee refrain fromdisclosing the amount of his or her wages.

b) Require an employee to sign a waiver or other document that purports to

deny the employee the right to disclose the amount of his or her wages.

c) Discharge, formally discipline, or otherwise discriminate against an

employee who discloses the amount of his or her wages."

http://www.hrp.net/

http://www.hrp.net/


http://slidepdf.com/reader/full/can-you-stop-employees-from-comparing-their-wages 10/13www.hrp.net

This doesn't mean that employees have unfettered rights to talk about their

wages and working conditions. Generally speaking, employers can limit

employees from discussing these topics while they are at work, as opposed to

on their own time.

However, to be safe, check with a labor law expert on variations where your

business is located,

In the event that an employee gains unauthorized access to payroll files and

then discloses wage information, that employee can be subject to discipline.The same is true if an employee divulges compensation information that is

deemed private under HIPAA or the Americans with Disabilities Act.

http://www.hrp.net/

http://www.hrp.net/



What to Do

www.hrp.net

How can you legally discourage employees from comparing notes on pay?

Taking a broader approach, the Texas Workforce Commission offers the

following suggestion, which employers in and outside of Texas might findhelpful: "In the context of a general discussion about the importance of

devoting oneself to work during work hours, counsel employees that it is all

right to discuss various things at work … but that as in most things,

moderation usually works best, and there is a fine line between being

informative or conversational and being a busybody, a time-waster, orperceived as self-important.“

The Commission also encourages employers to let employees know when

their pay and benefit practices are competitive. "The more that employees

know where they stand, and the more they feel that they have a stake in thecompany and its success, the less need they will feel to spend time talking

about their pay and benefits."

http://www.hrp.net/

http://www.hrp.net/



Ask a Local Expert

www.hrp.net

Once again, because laws vary by location, you need to know what your state

allows. To avoid running afoul of the law, check with a labor law expert in your

area to find out what your state has to say on the subject.

http://www.hrp.net/

http://www.hrp.net/



14550 Torrey Chase Blvd., Ste. 360 Houston, TX 77014 USA

www.hrp.netE-mail : [email protected]

Toll FreePhone

Fax

::

:

877.880.4477281.880.6525

281.866.9426

http://www.hrp.net/

mailto:[email protected]

mailto:[email protected]

http://www.hrp.net/

Can You Stop Employees from Comparing Their Wages?

Documents

Transcript of Can You Stop Employees from Comparing Their Wages?