Paycheck Sharing and Equal Pay Question:
Some of our employees were comparing their paychecks, which caused us a whole bunch of tension and complaining. So, we revised our employee manual to prohibit our staff from sharing information about their pay. This morning one of our employees protested that she won’t sign the handbook because of our request to keep pay information confidential, and she also complained that we were paying her less than we pay a man doing the same job. What should we do?
Answer by Employee Rights Attorney Jack Tuckner:
First, discussing wages or salary is protected activity under the National Labor Relations Act (NLRA), so you should not take any action to prohibit employees from discussing their pay, nor should you discipline employees for sharing information or discussing their salaries.
Section 7 of the NLRA protects the rights of employees to try to improve their pay and their working conditions or to fix job-related challenges, so discussing pay and complaining about perceived inequities is certainly a protected right. The body that enforces the NLRA is the National Labor Relations Board, and it routinely rules in favor of employees on this matter.
For NY employees—the state where this employee rights firm is located—the NYS Human Rights Law now specifically prohibits employers from preventing their employees from sharing wage information with each other, so it is now much easier for an employee to determine if she is being paid less than a man performing comparable work. This amendment is part of the new Equal Pay Law which strengthens the prohibitions against unequal pay based on sex. First, you can no longer rely on the old, “any factor other than sex” loophole to justify a difference in pay between a man and a woman doing comparable work. You need a specific gender-neutral basis.
Second, the employer must show that the difference is based on a “bona fide factor other than sex, such as education, training and experience,” and because employers can no longer prohibit employees from sharing wage information with other employees, this will enable your employees to learn whether a man doing the same job as a woman is being paid more than she is, making it more difficult for an employer to get away with the common practice of unequal pay.
So, what’s my advice? Remove the language from your manual about confidential wage information, and while it may not be what you want to hear, your best defense against workplace tension, wage complaints and lawsuits is to ensure that you pay your employees what they’re worth, or at least pay them fairly, and most importantly, make sure that any differences in wages between employees performing similar jobs have legitimate justification, unrelated to sex.