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Paycheck Retaliation


Hey! How much do you get paid?

How often have you been asked that question in your workplace? How do you respond? Most of us have been trained not to reveal our salaries or hourly pay rates to other employees. But, how often have you wished you knew how much your co-worker got paid? Especially when you've heard they get paid more than you to do the same job. Can you get in trouble with your boss if you tell someone how much you make? These are all great questions, but what does the law say?

What employers say

It is generally accepted in most workplaces that employees are encouraged not to disclose their pay rate to other employees. Some people are inherently private and would not disclose their paycheck regardless. But, in some companies, employees are actually told not to disclose their salary. Indeed, some businesses require employees to sign some type of confidentiality statement when they are hired, which prohibits them from discussing their pay.

What is the reasoning behind this common policy? Generally speaking, the purpose is to protect workplace morale. Discussing your salary with your coworkers might foster feelings of jealousy and resentment when one employee makes more money than the other. But, legally speaking, you cannot be punished for disclosing your salary to others.

What the law says

The National Labor Relations Act prohibits employers from banning employees from discussing salary or working conditions with each other. This rule is based on the NLRB's efforts to protect employees' rights to organize and to prevent employers from having an unfair bargaining advantage. This protection extends only to obtaining salary information from coworkers. You are not entitled to demand this information from your human resources department.

An Executive Order

On April 8, 2014, in honor of Equal Pay Day, President Obama signed an Executive Order which prohibits federal contractors from retaliating against employees for discussing their compensation with coworkers. President Obama also signed a Presidential Memorandum instructing the Secretary of Labor to establish appropriate regulations that would require federal contractors to provide the Department of Labor with summary data on the compensation that is paid to their employees, by sex and race.

These two measures were taken by President Obama apparently because the Paycheck Fairness Act (PFA), which has very similar provisions, has been pending since 2009, but has failed to pass Congress twice before. The White House fact sheet states that the President "is using the power of his pen to act where he can on this issue, and will continue to urge Congress to pass the Paycheck Fairness Act to ensure all employers are held to the same high standard working women deserve."

Why is this disclosure necessary?

Well, according to a fact sheet published by the White House, U.S. Census statistics show that full-time working women are still earning 77 cents for each dollar earned by men. The Equal Pay Act can only do so much. Requiring transparency in salary information and providing greater protection against retaliation will make it easier for employees to prove their cases of discrimination in pay.

In the past, it has always been very difficult for plaintiffs to prove they make less money, when the information used to prove that claim remains in the possession of the employer. Plaintiffs have historically engaged in intense battles with their employers to obtain salary information, and employers routinely try to hide behind privacy claims regarding employment records. These new provisions will make that fight less difficult, at least in the federal sector. If you have questions regarding your employment rights, please contact Michel | King , either online or by calling us at (205) 265-1880.

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