S3 Ep53: Pay Transparency Is Your Right At Work! #SayYourPay

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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 invo

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.

Disclaimer: For educational use only, not intended to be legal advice.

Episode Transcript

Unknown (00:07):
Hey, it's mark here and welcome to the next edition of
the Employee Survival Guidewhere I tell you as always, what
your employer does definitelynot want you to know about and a
lot more. Today's episode we'regonna talk about pay
transparency. And it's yourright at work, say your pay.
We've all heard the aphorismwhat you don't know can hurt

(00:29):
you. That is true in certaincircumstances, and definitely
untrue and others. For example,there's generally no harm in not
knowing that your lunch wasprepared 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 toinformation about your wages,

(00:51):
and the wages of your coworkers. It is important for
employees and employers alike toknow that what you do know about
your compensation definitelycannot hurt you at work, it can
actually help you, it canactually help and pay inequality
at work. Here are somemisconceptions about wage
disclosure laws. It is notsurprising that a large number

(01:13):
of American workers route 50%.
According to some surveys,including managers incorrectly
believe that you can bedisciplined or even terminated
for discussing employee wages.
Now, throughout this episode,I'll discuss compensation and
wages and are usedinterchangeably and it can
include employee benefits aswell as monetary compensation.

(01:34):
In fact, employees have thelegal right to voluntarily
discuss their wages with eachother pursuant to the article
seven of the National LaborRelations Act, the NL Ra, the
law has protected this rightsince 1935. Section seven of the
NLRA not only prohibitsemployers from limiting
employees discussions ofcompensation, all activities

(01:55):
related to collective bargainingor other mutual aid or
protection and quote, are alsoprotected. Section seven of the
annual RA has been interpretedby the National Labor Labor
Relations Board they an NL R bethe agency charged with
enforcing the NLRA as includingcompensation discussions. Why
has the myth of the prohibitionagainst workplace wage

(02:17):
discussions persisted when theright has been protected in this
country for so long. As anemployment lawyer, I find it
astonishing that people stillbelieve that wage discussions
are impermissible the answeremployers and they try to keep
this information a secret tocontrol payroll costs. If
workers do not know how theircompensation compares to their

(02:39):
similarly employed co workers,then the employer has a better
chance of being able to pay someworkers less than others and
thereby keep payroll costs down.
Compensation discrimination andviolations of state and federal
equal pay laws can flourish whencompensation is kept secret.
But we're also going to learnlater that these discrimination

(03:02):
violations of state and federallaw can actually help the
litigation of these illegal actsof pay compensation. Employers
still try to keep wages secret.
Unfortunately, this effort toconceal the true state of law
and this is typical employerbehavior. As we have pointed out
in a number of contexts in theemployee Survival Guide podcast

(03:22):
episodes, employers often relyupon their employees lack of
information about their rightsto gain an advantage in
controlling and profiting fromtheir employees labor. Sometimes
employers actively try to quellcompensation discussions by
posting notices, or memosdiscouraging or prohibiting
discussing compensation at workto get around the NLRA.

(03:42):
Employers often allow, quote,rumors, or customs of prohibited
wage discussion to permeate theworkplace. Even if the policy or
practice is informal andunwritten. When when supervisors
discourage employees fromdiscussing compensation, it
violates the NLRA wage secrecypolicies of any kind are illegal

(04:02):
under the NLRA. Further,employers cannot retaliate
against interrogate, punish orthreaten an employee for
discussing wages. Whileemployers can reasonably limit
discussion of wages during worktime. If it would interfere with
the performance of work. Nothingcan prevent employees from
discussing their compensationwhen they are off the clock. For
example, an employer may limitemployees discussions of wages

(04:24):
in front of customers, this isreasonable and would not require
the employee to remain silent oncompensation when there are no
customers or when other non workcompetitions are occurring
between employees. Your employeris expressly prohibited from
terminating you or retaliatingagainst someone who discusses
their wages with fellowemployees. The employer may not
take any adverse action againsta worker who asks about or

(04:48):
discusses their own pay withothers. Now there are exceptions
to the NLRA protections. Thereare very few exceptions to this
rule. One important exception isthat well An employee may
discuss and disclose his or herown compensation, he or she
cannot expose the compensationof others. For example, an
employee who has access topayroll records cannot inform

(05:09):
his or her co workers of whateveryone else makes in the
company. You can discuss yourown wages, but not the wages of
other co workers unless that coworker gives the information
voluntarily. Further employeesare also protected if they do
not wish to discuss thecompensation with co workers.
The NLRA section seven is abroad law that protects most

(05:29):
private sector workers fromretaliation for discussing
compensation. However, theanalog era does not cover
federal, state or localgovernments, employers subject
to revoke the railroad LaborAct, religious organizations and
agricultural workers.
Inexplicably, employees of thesetypes of organizations may be

(05:50):
prohibited from discussing theircompensation by him by their
employer policies.
In 2014, President Obama made anexecutive order that provided
that employees of federalcontractors were also protected
from adverse action fordiscussing compensation. This
executive order plugged a majorhole in protections of the
section seven of the NLRA. Nowmost workers have the same

(06:13):
protection from adverse actionwhen discussing the wages.
Expanded pay transparency lawsare on the rise nationwide. The
legal trend in recent yearssince President Obama's 2014
executive order has been toexpand protections for workers
discussing their compensation.
State law and localjurisdictions have more recently
enacted laws that make itillegal for private sector

(06:35):
employers to discriminateagainst employees for discussing
compensation. California,Colorado, Connecticut, where I'm
at Delaware, Maryland, Nevada,Rhode Island, South Carolina and
Washington have enacted suchlaws in recent years. New York
City, which enacted a law in Mayof 2022, which he goes effect in
November, one of this year,several days from now, and

(06:58):
several other major cities havefollowed suit. All these laws
seek to expand the existingprotections against paid
discrimination under the EqualPay Act of 1963, which requires
employers to pay women an equalamount paid to men for the same
position. These state and locallaws generally impose an
affirmative duty on employers todisclose pay ranges for

(07:20):
positions when requested byemployees or prospective
applicants. Generally, theselaws require employer disclosure
of salary ranges for a positionat the time of hiring, or when
an employee changes positionswithin the organization or upon
request. Colorado and New YorkCity actually require the
disclosure of pay ranges to beincluded in all job postings.

(07:42):
Connecticut's new law requiringpay transparency also prohibits
employers from inquiring about aprospective employees
compensation history, eitherdirectly from the employee or
indirectly from prior employers.
This is interesting because inan inquiry into a prospective
employees work historytraditionally included the quote

(08:05):
titled dates of employment andsalary history. The Connecticut
law further provides a privateright of action to both
prospective employees andcurrent employees. A lawsuit for
violations of the law may bebrought within two years of a
violation by an employer.
Employers who violate the lawmay be liable for compensatory
and punitive damages andattorneys fees. Perhaps most

(08:27):
importantly, the Connecticut lawalso expands the protections
against gender base paydiscrimination by requiring
employers to provide equal payfor, quote, comparable and
quote, as opposed to equal work.
In the never ending conflictbetween employers and their
employees. Knowledge is theultimate power. Knowing when and

(08:49):
how an employee may discussimportant issues of compensation
with coworkers it's important tounderstanding employee rights.
By defeating the falsenarratives around formal and
informal pay secrecy policies,employees can protect themselves
and each other from the effectsof wages commission and other
illegal compensation practicestill widely implemented by

(09:11):
employers looking to keeppayroll costs low. In addition,
having information about yourcoworkers pay also helps you
with the negotiation of your ownpay when dealing with salary
increases, or even asking forthe salary at the date of your
at the interview. So if you havequestions about this, obviously,
you can always call us Karenassociates. But I'm gonna

(09:34):
encourage you to do something. Iwant you to do something every
day when you encounter it, sayyour pay. We know this is
happening in the 13 under agegroup. It's happening quite
often, it's forcing employers tochange their behavior. I have to
tell you that if you don't sayyour pay, you allow employers
not only the benefit and theleverage to pay you on equally,

(09:57):
especially if you're female, butalso applies to males. But you
also prevent when you say yourpay The employers wage theft, if
you don't know it, most stateshave criminal statutes that make
it a crime to steal people'swages. But people but employers
do this all the time. So now youhave all the information need to
know about equal pay, payequally, of course, but also now

(10:21):
you have the power to dosomething, the tool, and it's
not a secret any longer. So geton your social media and just
flip it off and say hashtag, sayyour pay. And you'll come across
a little link to our site thatsays simply, there are no laws
in the United States that bannedyou from discussing your pay.
That's it. Simple. Now, youknow, hope you enjoyed the

(10:43):
podcast episode if you'd likeus, like the episode, always to
please do us a review anywhereyou can. And spread the word
#sayyourpay, take care