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June 5, 2023 | BusinessEmployment

Salary Discussions at Work

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Author(s)
Olivia Loftin

Associate Attorney

Jari Wilson

Associate Attorney

Talking about salaries at work has often been considered a taboo topic, and employers may even have rules in place to prevent their employees from engaging in such conversations.  However, it is important to know that an employee’s right to discuss their wages is generally protected by law.

What Does the Law Say?

Under Section 7 of the National Labor Relations Act (NLRA), employees have the right to organize and bargain collectively with their employers, and to engage in other “protected, concerted activities.”  This includes discussing wages, benefits and other terms and conditions of employment with co-workers. These protections apply to most private-sector employees, regardless of union membership.

Protected conversations can take place during off-duty hours or while at work, as long as employees are permitted to have non-work conversations in the workplace.  These conversations can occur in face-to-face discussions, written messages and even on social media.  However, it is important for employees to be mindful of company policies that govern the use of personal devices at work before engaging in electronic communications.

What Can Employees Discuss?

Employees may discuss how much they make, make joint requests for pay and even organize a union or have an outside union bargain with their employer to raise wages.  Protected conversations may also include broader public issues that impact wages, such as minimum wage or “right-to-work” laws or legislation.

What Is Prohibited By Law?

Employers are prohibited by law from punishing or retaliating against employees who discuss their pay. Additionally, employers may not question employees about their conversations or threaten them with adverse consequences, such as loss of benefits, disciplinary action or termination.  Employers should review their policies and agreements, including non-disclosure agreements, for any language that prohibits or discourages employees from discussing pay.

Exceptions: Who Is Not Covered By The NLRA?

While the NLRA covers most private-sector employees, it does not extend to certain entities and individuals, such as government employees, agricultural and domestic workers, independent contractors, workers employed by a parent or spouse, employees of air and rail carriers covered by the Railway Labor Act and supervisors.  However, Executive Order 13665 provides that the federal government must afford their employees and contractors a similar right to discuss and inquire about their compensation without the fear of adverse action.

Employees who have significant supervisory duties are generally excluded from the NLRA’s protections. The definition of a supervisor is not always clear and must be examined on a case-by-case basis.  Courts often consider a person’s actual responsibilities to determine whether they are a “supervisor” within the meaning of the NLRA.  If someone is deemed a supervisor, they do not enjoy the same rights under the NLRA to discuss pay unless the discussion involves allegations of wage discrimination.

What If An Employee’s Right Has Been Violated?

If an employer violates an employee’s right to discuss pay, they may be subject to a National Labor Relations Board (NLRB) investigation and administrative action.  The NLRB may seek “make-whole” remedies, which may include ordering the employer to compensate the affected worker for any losses suffered as a result of unfair labor practices, rehiring the wrongfully discharged employee, paying lost wages and benefits and removing any references to an unlawful discharge from its files.  Additionally, the employer may need to post a notice in the workplace informing employees of their rights and the employer’s commitment to follow the law in the future.

Conclusion

In conclusion, employees’ rights under the NLRA and the issues surrounding pay can be complex. Employers and employees should consult with an attorney concerning these issues to ensure that employers are following the law and employees’ rights are protected.

Photo by Alexander Grey on Unsplash

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