Employee Survival Guide® - Pay Transparency Is Your Right At Work! #SayYourPay

Episode Date: October 28, 2022

In this episode of the Employee Survival Guide Mark Carey, an employment attorney,  discusses your right to pay transparency at work.  #SayYourPay It is not surprising that a large number of American workers (around 50% of all employees according to some recent surveys) including managers incorrectly believe that you can be disciplined or even terminated for discussing employee wages. In fact, employees have the legal right to voluntarily discuss their wages with each other pursuant to Article Seven of the National Labor Relations Act (NLRA). This law has protected this right since 1935!State law and local jurisdictions have more recently enacted laws that make it illegal for private sector employers to discriminate against employees for discussing compensation. California, Colorado, Connecticut, Delaware, Maryland, Nevada, Rhode Island, South Carolina and Washington have enacted such laws in recent years. New York City and several other major cities have followed suit. All of these laws seek to expand the existing protections against pay discrimination under the Equal Pay Act of 1963.These state and local laws generally impose an affirmative duty on employers to disclose pay ranges for positions when requested by employees or prospective applicants. Generally, these laws require employer disclosure of salary ranges for a position at time of hiring, when an employee changes positions within the organization, or upon request. Colorado and New York City actually require that disclosure of pay ranges be included in all job postings!This episode was written by Chris Avcollie, edited by Matt Zako, and produced by Mark Carey. This topic involves employment law issues.Listen to the Employee Survival Guide podcast latest episode here  https://capclaw.com/employee-survival-guide-podcast/If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts. Leaving a review will inform other listeners you found the content on this podcast is important in the area of employment law in the United States. For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.

Hey, it's Mark here, and welcome to the next edition of the Employee Survival Guide, where I tell you, as always, what your employer does definitely not want you to know about, and a lot more. Today's episode, we're going to talk about pay transparency, and it's your right at work. Say your pay. We've all heard the aphorism, what you don't know can't hurt you. That is true in certain circumstances and definitely untrue in others. For example, there is generally no harm in not knowing that your lunch was prepared in a kitchen which uses

a lot of tree nuts. Unless, of course, you have a severe tree, not allergy. In that case, what you don't know can actually kill you. When it comes to information about your wages and the wages of your coworkers, it is important for employees and employers alike to know that what you do know about your compensation definitely cannot hurt you at work. It can actually help you. It can actually help end pay inequality at work. Here are some misconceptions about wage disclosure laws. It is not surprising that a large number of American workers, around 50%, according to some surveys, including managers, incorrectly believe that you can be disciplined

or even terminated for discussing employee wages. Now, throughout this episode, I'll discuss compensation of wages, and are used interchangeably, and can include employee benefits as well as monetary compensation. In fact, employees have the legal right to voluntarily discuss their wages with each other pursuant to the Article 7 of the National Labor Relations Act, the NLRA. The law has protected this right since 1935. Section 7 of the NLRA not only prohibits employers from limiting employees' discussions of compensation, all activities related to, quote, collective bargaining or other mutual aid or protection, end quote, are also protected. also protected. Section 7 of the NLRA has been interpreted by the National Labor Relations Board, the NLRB, the agency charged with enforcing the NLRA, as including compensation discussions.

Why has the myth of the prohibition against workplace wage discussions persisted when the right has been protected in this country for so long? As an employment lawyer, I find it astonishing that people still believe that wage discussions are impermissible. The answer? Employers. They try to keep this information a secret to control payroll costs. If workers do not know how their compensation compares to their similarly employed coworkers, then the employer has a better chance of being able to pay some workers less than others and thereby keep payroll costs down. Compensation discrimination and violations of state and federal equal pay laws can flourish when compensation is kept secret. But we're also going to learn later that these discrimination and violations of state and federal law can actually help litigation of these illegal acts of pay compensation.

Employers still try to keep wages secret. Unfortunately, this effort to conceal the true state of law is typical employer behavior. have pointed out in a number of contexts in the Employee Survivor Guide podcast episodes, employers often rely upon their employees' lack of information about their rights to gain an advantage in controlling and profiting from their employees' labor. Sometimes employers actively try to quell the compensation discussions by posting notices or memos discouraging or prohibiting discussing compensation at work. To get around the NLRA, employers often allow, quote, rumors or customs of prohibited wage discussion to permeate the workplace. Even if the policy or

practice is informal and unwritten, when supervisors discourage employees from discussing compensation, it violates the NLRA. Wage secrecy policies of any kind are illegal under the NLRA. Further, employers cannot retaliate against, interrogate, punish, or threaten an employee for discussing wages. While employers can reasonably limit discussion of wages during work time if it would interfere with the performance of work, nothing can prevent employees from discussing their compensation when they are off the clock. For example, an employer may limit employees' discussions of wages in front of customers. This is reasonable and would not require the employee to remain silent on compensation when there are no customers or when other non-work conversations are occurring between employees. Your employer is expressly prohibited

from terminating you or retaliating against someone who discusses their wages with fellow employees. The employer may not take any adverse action against a worker who asks about or discusses their own pay with others. Now, there are exceptions to the NLRA protections. There are very few exceptions to this rule. One important exception is that while an employee may discuss and disclose his or her own compensation, he or she cannot expose the compensation of others. For example, an employee who has access to payroll records cannot inform his or her co-workers of what everyone else makes in the company. You can discuss your own wages, but not the wages of other co-workers unless that co-worker gives the information voluntarily. Further, employees are also protected if they do not wish to discuss the compensation with co-workers. The NLRA Section 7 is a broad law that protects

most private sector workers from retaliation for discussing compensation. However, the NLRA does not cover federal, state, or local governments, employers subject to the Railroad Labor Act, religious organizations, and agricultural workers. Inexplicably, employees of these types of organizations may be prohibited from discussing their compensation by their employer policies. In 2014, President Obama made an executive order that provided that employees of federal contractors were also protected from adverse action for discussing compensation. federal contractors were also protected from adverse action for discussing compensation. This executive order plugged a major hole in protections of the Section 7 of the NLRA.

Now, most workers have the same protection from adverse action when discussing their wages. Expanded pay transparency laws are on the rise nationwide. The legal trend in recent years since President Obama's 2014 executive order has been to expand protections for workers discussing their compensation. State law and local jurisdictions have more recently enacted laws that make it illegal for private sector employers to discriminate against employees for discussing compensation. California, Colorado, Connecticut, where I'm at, Delaware, Maryland, Nevada, Rhode Island, South Carolina, and Washington have enacted such laws in recent years. New York City, which enacted a law in May of 2022, which goes into effect in November 1 of this year, several days from now, and several other major cities have followed suit. All of these laws seek to expand the existing protections against pay discrimination under the Equal Pay Act of 1963, which requires employers to pay women an equal amount paid to men for the same position.

These state and local laws generally impose an affirmative duty on employers to disclose pay ranges for positions when requested by employees or prospective applicants. Generally, these laws require employer disclosure of salary ranges for a position at the time of hiring, or when an employee changes positions with a new organization, or upon request. Colorado and New York City, actually, require the disclosure of pay ranges to be included in all job postings. Connecticut's new law requiring pay transparency also prohibits employers from inquiring about a prospective employee's compensation history, either directly from the employee or indirectly from prior employers. This is interesting because

in an inquiry into a prospective employee's work history, traditionally included the quote title and dates of employment and salary history. The Connecticut law further provides a private right of action to both prospective employees and current employees. A lawsuit for violations of the law may be brought within two years of a violation by an employer. Employers who violate the law may be liable for compensatory and punitive damages and attorney's fees. Perhaps most importantly, the Connecticut law also expands the protections against gender-based pay discrimination by requiring employers to provide equal pay for, quote, comparable, end quote, as opposed to equal work. In the never-ending conflict between employers and their employees, knowledge is the ultimate power. Knowing when and how an employee may discuss important issues of compensation with coworkers, it's important to understanding employee rights. By defeating the false narratives around formal and informal pay

secrecy policies, employees can protect themselves and each other from the effects of wage discrimination and other illegal compensation practice still widely implemented by employers looking to keep payroll costs low. In addition, having information about your co-worker's pay also helps you with the negotiation of your own pay when dealing with salary increases or even asking for the salary at the date of your interview. So if you have questions about this, obviously you can always call us, Carey & Associates, but I'm going to encourage you to do something. I want you to do something every day when you encounter it. Say your pay. We know this is happening in the 13 and under age group. It's happening quite often and it's forcing employers to change their behavior. I have to tell you that if you don't say your pay,

you allow employers not only the benefit and the leverage to pay you unequally, especially if you're a female, but it also applies to males. But you also prevent, when you say your pay, the employer's wage theft. And if you don't know it, most states have criminal statutes that make it a crime to steal people's wages. But people, but employers, do this all the time. So now you have all the information you need to know about equal pay, pay equally, of course, but also now you have the power to do something, the tool. And it's not a secret any longer. the power to do something, the tool. And it's not a secret any longer. So get on your social media and just flip it off and say, hashtag, say your pay. And you'll come across a little link to our

site that says simply, there are no laws in the United States that ban you from discussing your pay. That's it. Simple. Now you know. Hope you enjoyed the podcast episode. If you like us, it. Simple. Now you know. Hope you enjoyed the podcast episode. If you like us, like the episode, always do. Please do a review anywhere you can and spread the word. Hashtag, say your pay. Take care.