The Straight Dope, Please, on Talking about Pay Levels at Work

[Frylock]

Almost everywhere I have ever worked, I have been told that it is against the rules to talk to my fellow employees about how much we get paid.

I have also heard that it is against the law for employers to make such a rule.

A friend of mine argues that if I signed a contract stating I wouldn’t talk about pay levels at work, then my employer has the legal means to enforce th rule that I not talk about pay levels at work.

However, I wonder whether that would be one of those kinds of contracts which can’t hold up in court precisely because the restriction called for is not one employers are allowed, legally, to demand of their employees.

I have found a couple of internet references saying that it violates the National Labor Relations Act to disallow employees from talking about pay scales. However, that act doesn’t seem to specifically disallow that workplace rule. Rather it says employers may not interfere with the organization of unions. The logic behind saying that this prohibits the rule in question is that, since talking about salary is necessary for the formation of a union, employers may not prohibit talking about salary. But I don’t follow that logic–as far as I can tell, under the Act, employers can disallow salary talk except such salary talk as is intended to lead to the organization of a union.

So, please, the straight dope: Can an employer forbid me from talking about how much I get paid to other employees?

-FrL-

[Kimstu]

@Frylock

Can an employer forbid me from talking about how much I get paid to other employees?

No.

In NLRB v. Main Street Terrace Care Center, the court found that an employer’s unwritten policy prohibiting employees from discussing their salaries violated federal labor law. […]

The NLRB issued a complaint alleging that Main Street had violated the National Labor Relations Act by having a rule that prohibited employees from discussing their wages and by firing Craig for engaging in protected concerted activity. An administrative law judge heard the case and found that Main Street had violated the law as alleged.

The appellate court upheld the findings of the NLRB and discussed the applicable law. The NLRA gives employees the right to form labor unions, assist labor organizations, bargain collectively and engage in other activities for the purpose of collective bargaining. This means that employees may form unions and may engage in activities that lead to the formation of unions. In the pursuit of those activities, employees have the right to discuss working conditions with each other.

The Sixth Circuit explained that it had not previously decided whether a rule preventing employees from discussing salaries and wages would constitute an unfair labor practice, but stated that the test for determining whether a particular rule or action is an unfair labor practice is whether it tends to be coercive or interfere with employees’ exercise of their rights.

The court concluded that the employer had engaged in an unfair labor practice, because the rule prohibiting salary discussions interfered with the employees’ right to engage in activity protected under the NLRA. Main Street argued that because the rule was unwritten and was generally unenforced, it did not violate the NLRA. The court, disagreed, stating that even an oral rule that had not been previously enforced would violate employees’ rights, and that oral warnings from a supervisor would be particularly coercive. Furthermore, if Main Street could not have a written rule of this sort, the court reasoned, it could not have a similar oral one either.

The Sixth Circuit’s ruling is consistent with prior rulings from other courts to the effect that an unqualified rule prohibiting employees from discussing their salaries violates the NLRA. Some of these courts have indicated that if such a rule is justified by legitimate business interests, or if it is limited as to time or place, it may not violate the NLRA. It should be kept in mind, however, that avoiding hard feelings will not be recognized as a sufficient justification. Employers may, however, legitimately prohibit certain employees from disclosing other employees’ salaries. For example, an employer may prohibit payroll or human resources personnel from discussing the salaries of other employees.

[psychonaut]

@Frylock

Almost everywhere I have ever worked, I have been told that it is against the rules to talk to my fellow employees about how much we get paid.

I have also heard that it is against the law for employers to make such a rule…

So, please, the straight dope: Can an employer forbid me from talking about how much I get paid to other employees?

This will depend on your jurisdiction. To what nation does your National Labor Relations Act apply?

[Frylock]

@psychonaut

This will depend on your jurisdiction. To what nation does your National Labor Relations Act apply?

Sorry, I meant the law on the books here in the U.S.

-FrL-

[Joey_P]

@Kimstu

No.

Depends on the state though. At my job, we tell employees their not allowed to discuss wages (sure as hell doesn’t stop them though, but I’ll be damned if they’re going to get a raise becuase so and so makes more then they do. All though it’s funny when they say that, I ask how they know, they heard it from this person who heard it from… but I digress) anyways, maybe I’m not legally allowed to prohibit that, but Wisconsin is an At Will state, and I might just fire you becuase it’s Tuesday, or becuase you have brown hair, or cuz I’m bored and it amuses me.

[Frylock]

@Joey P

Depends on the state though. At my job, we tell employees their not allowed to discuss wages (sure as hell doesn’t stop them though, but I’ll be damned if they’re going to get a raise becuase so and so makes more then they do. All though it’s funny when they say that, I ask how they know, they heard it from this person who heard it from… but I digress) anyways, maybe I’m not legally allowed to prohibit that, but Wisconsin is an At Will state, and I might just fire you becuase it’s Tuesday, or becuase you have brown hair, or cuz I’m bored and it amuses me.

It looks to me like certain federal laws (like the one mentioned in the link) make the "at will"ness of At Will states not quite so “at will” as they would like to be.

You can’t fire someone because they’re black, and, apparently, you can’t fire them because they broke a rule that said they couldn’t talk about pay level.

-FrL-

[Frylock]

@Joey P

Depends on the state though. At my job, we tell employees their not allowed to discuss wages (sure as hell doesn’t stop them though, but I’ll be damned if they’re going to get a raise becuase so and so makes more then they do. All though it’s funny when they say that, I ask how they know, they heard it from this person who heard it from… but I digress) anyways, maybe I’m not legally allowed to prohibit that, but Wisconsin is an At Will state, and I might just fire you becuase it’s Tuesday, or becuase you have brown hair, or cuz I’m bored and it amuses me.

It looks to me like certain federal laws (like the one mentioned in the link) make the "at will"ness of At Will states not completely and exceptionlessly “at will.”

You can’t fire someone because they’re black, and, apparently, you can’t fire them because they broke a rule that said they couldn’t talk about pay level.

-FrL-

[groman]

@Frylock

You can’t fire someone because they’re black, and, apparently, you can’t fire them because they broke a rule that said they couldn’t talk about pay level.

-FrL-

And good luck trying to argue that you fired somebody because it was Tuesday and not because they talked about pay level.

[Patty_O_Furniture]

Boss to new hire: “Be advised that your salary was not to be discussed among his coworkers.”

New hire: “Don’t worry, I’m just as ashamed of it as you are.”

[HeyHomie]

Huh.

I make considerably more money than anybody in my division. Not only have I been here much longer, but I have much higher productivity. If word got out about that, there would probably be mutiny. I imagine that if my boss found out that any of us were discussing our salaries, she’d find another reason to fire that peson PDQ.

[Joey_P]

@Frylock

It looks to me like certain federal laws (like the one mentioned in the link) make the "at will"ness of At Will states not completely and exceptionlessly “at will.”

You can’t fire someone because they’re black, and, apparently, you can’t fire them because they broke a rule that said they couldn’t talk about pay level.

-FrL-

That’s why I didn’t mention anything protected.
And as for firing some becuase 'it’s Tuesday." I said I CAN do it, yea, they’ll have no problem claiming unemployment, but I can still do it with worrying about any legal action (I think).

[Gfactor]

@Joey P

Depends on the state though. At my job, we tell employees their not allowed to discuss wages (sure as hell doesn’t stop them though, but I’ll be damned if they’re going to get a raise becuase so and so makes more then they do. All though it’s funny when they say that, I ask how they know, they heard it from this person who heard it from… but I digress) anyways, maybe I’m not legally allowed to prohibit that, but Wisconsin is an At Will state, and I might just fire you becuase it’s Tuesday, or becuase you have brown hair, or cuz I’m bored and it amuses me.

Warning: Your rules shouldn´t prohibit employees from discussing their salaries with one another. Labor laws protect a worker´s right to discuss such job-related issues with colleagues.

Domain Names, Website Builder, Web hosting & More | Yahoo! Small Business

http://pubs.acs.org/chemjobs/jobseeker/articles/payconfidentiality.html

What many employees-or their employers-may not know is that salary discussions among employees are protected under the National Labor Relations Act (NLRA, also known as the Wagner Act of 1935). Specifically, employers cannot “interfere with, restrain, or coerce employees in exercising their rights under NLRA which protects the employees’ right to discuss their ‘wages, hours, and other terms and conditions of employment’ for their ‘mutual aid or protection’.”

According to attorney Ann Kiernan, the National Labor Relations Board has ruled for the past 25 years that employer rules forbidding workers to discuss wages are unfair labor practices, in violation of NLRA. Some employers may set pay confidentiality policies in the belief that NLRA applies only to unionized workforces. The relevant portion of NLRA applies even to non-unionized companies, says Kiernan.

http://pubs.acs.org/chemjobs/jobseeker/articles/payconfidentiality.html

In at-will states, an employer may fire an employee for any reason except one that is legally forbidden. legalexplorer.com
Violation of an illegal work rule is a forbidden reason.

I realize that you can come up with a pretextual reason, but if the case went to hearing, you’d have to commit perjury in order to maintain the pretext.

[Gfactor]

@Gfactor

In at-will states

BTW, all states are at-will, except one: Montana.

http://wsd.dli.mt.gov/local/missoula/msoguide/chapter4_pg129.asp

[Frylock]

@Joey P

That’s why I didn’t mention anything protected.
And as for firing some becuase 'it’s Tuesday." I said I CAN do it, yea, they’ll have no problem claiming unemployment, but I can still do it with worrying about any legal action (I think).

See GFactor’s subsequent post.

-FrL-