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Compensation Information is Not Confidential

Some employers mistakenly believe that wage and salary information can be kept confidential.  In my law practice, I occasionally see policies stating that employees may not discuss compensation with their co-workers.  Such policies are illegal.

The National Labor Relations Board (NLRB) takes the position that discussing compensation and benefits is “protected concerted activity” under the National Labor Relations Act.  An employer who tells employees not to discuss such matters is risking an unfair labor practice charge and sanctions by the NLRB.

Depending on the content, social media posts may be “protected concerted activity.”  Check with your employment lawyer before firing anyone for social media activity.  That Facebook post complaining about low wages, long hours or a bad boss may be legally protected.

There is a new development for federal contractors.  Earlier this year President Obama signed an Executive Order prohibiting federal contractors from taking adverse action against employees or applicants for discussing compensation.  The Office of Federal Contract Compliance Programs (OFCCP) just issued proposed regulations and we are in the comment period: visit their website to read the proposed rule and add your comments.

The Executive Order is in effect and federal contractors are prohibited from punishing an employee or applicant for discussing compensation or benefits.  The regulations contain other requirements that are not yet final.

If adopted in their current form, the regulations would require federal contractors to add a compensation transparency policy to their policy manuals.  The policy would inform employees about their right to discuss compensation.  Posters or handouts would be required in order to inform applicants of their rights.

Stay tuned for an update – final regulations should be issued around the end of the year.


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