Can Employers Lawfully Fire Employees for Discussing Their Pay?
September 16, 2015
The Department of Labor has published a rule implementing the President’s Executive Order prohibiting federal contractors from firing or taking other adverse actions against employees for disclosing or discussing their pay.
For obvious reasons, private sector employers would prefer that employees keep the matter of their pay a secret and have been known to discharge employees for failing to do so. Outside of the federal contractor context, there is no express prohibition under federal law against terminating or disciplining employees for discussing pay and benefits. Some states, not including Florida, have enacted “pay secrecy” laws against such adverse personnel actions. Absent applicable state law, what protections, if any, are there for private sector employees to be free from retaliation for violating pay secrecy policies?
A certain level of protection can be found under the National Labor Relations Act (NLRA) as enforced by the National Labor Relations Board (NLRB). In part, the NLRA affords private sector employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The NLRA does not expressly prohibit retaliation for discussing pay, but the NLRB has interpreted the right to engage in concerted activity to include the right to openly discuss terms and conditions of employment including wages. For those who have been unlawfully terminated for violating employer pay secrecy policies, the NLRB may award back pay and other remedies. It should be noted that personnel legitimately categorized as “supervisors” do not fall within the NLRA’s definition of employee and therefore are not protected under the Act for engaging in concerted activity such as discussing pay.
Note that the NLRA does not cover public sector employers. Protections for state and local public employees would only be found under applicable state law. However, issues over discussing pay in the public sector typically do not arise as such information is usually a matter of public record.