Salary Secrecy Policies are Common – and Illegal

“How much do you get paid?” This is a question that many employers tell employees never to ask or answer, and some employers go as far as telling employees it’s a fireable offense. But is this legal? What if you’re trying to find out how your salary compares to other employees across genders or races? Or talking to other employees about unionizing? The answer is that federal and some state laws protect your right to inquire about and disclose salary information to other workers.

Under the federal National Labor Relations Act of 1935 (NLRA), workers in every state—whether part of a union or not—are guaranteed the right to undertake “concerted activities” to organize for collective bargaining, which includes the right to discuss pay rates, and differences in pay rates between workers. 29 U.S.C. § 157. Under the NLRA, an employer commits an “unfair employment practice” if it “interfere[s] with, restrain[s], or coerce[s] employees in the exercise of” these rights. 29 U.S.C. § 158(a)(1). Simply put, according to NYU law professor Cynthia Eastlund, the NLRA “means that you and your co-workers get to talk together about things that matter to you at work,” one of which is pay. The NLRA does not, however, protect supervisors or independent contractors, and generally doesn’t allow a worker to bring a private lawsuit. The National Labor Relations Board (“NLRB”) must enforce the law, and the remedy is generally an injunction rather than money damages.

Several states also have laws that specifically protect the rights of workers to discuss their wages. In New Jersey, the Law Against Discrimination was updated in 2013 to protect this right. The law states that it is unlawful for any employer to retaliate against an employee for discussing “the job title, occupational category, and rate of compensation, including benefits . . . or the gender, race, ethnicity, military status, or national origin of any employee or former employee of the employer,” so long as the purpose of the discussion is to investigate possible pay discrimination. N.J. Stat. §10:5-12(r).

If you think you have been discriminated or retaliated against at work, contact us at 732-325-0318.

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