Know Your Rights
by Doug Bonney

THE MYTH OF PAY PRIVACY

I want to try to dispel some myths regarding employment law. In this piece, I specifically want to talk about the commonly held belief that workers cannot tell their coworkers or other people how much money they make. In fact, all workers enjoy the right to talk about their wages or salary among themselves and with others, most importantly with union organizers.

But I have talked to many people who think they cannot tell coworkers or other people how much they make. There are at least two sources for this myth. First, there is the cultural trait in the United States that hold the amount of money we make to be private matter. Second, many employers have "confidentiality" rules. Sometimes these rules are in writing, and sometimes they are just oral. Sometimes these rules expressly tell employees that they may not discuss wages, salaries, or other terms of employment with anyone. But, more often, these rules are broadly worded as prohibiting employees from using or disclosing "confidential information." It's hard to know which came first: the cultural belief that pay is private or the employer rules. It doesn't really matter which came first, and it doesn't matter whether the rules are written or oral or broad or specific.

The important point is that workers have the right to discuss their pay and all other terms and conditions of employment with their coworkers and with union organizers. These undeniably significant workplace subjects are never confidential. And all of those employer rules prohibiting such discussions are illegal.

Section 7 of the National Labor Relations Act gives the vast majority of private sector employees the right to engage in concerted activities for mutual aid and protection. In order to exercise those Section 7 rights effectively, employees must be able to discuss workplace issues and information with their coworkers and with union organizers. The National Labor Relations Board has repeatedly recognized that the discussion of wages and other terms and conditions of employment is protected by Section 7. And the Labor Board has repeatedly held, over many decades, that employer rules that can be reasonably interpreted as restricting employees from discussing wages, rates of pay, salaries, breaks, discipline, work rules, and other terms and conditions of employment violate federal labor law.

The main exception to this broad rule protecting the right of employees to discuss wages and other workplace issues is that the Labor Board has permitted employers to prohibit such discussions during working time and in work areas. In retail and entertainment settings, furthermore, the Labor Board has also held that employers can prohibit such discussions in customer areas such as the sales floor in a retail store or in gambling areas in a casino. But these exceptions are narrow. Employers cannot restrict such discussions in other so-called "public areas" on the employers' property, such as rest rooms, sidewalks, parking lots, restaurants, and bars. Even though customers might be in those areas and might overhear employee discussions of wages and other topics, the right of employees to discuss critical workplace issues normally outweighs the right of employers to protect their customers' sensitive ears.

The bottom line is that employees are guaranteed a voice at work. But, in order to exercise that voice and to organize into unions and engage in collective bargaining, employees need to know that they have the right to discuss critically important workplace issues such as wages, discipline, breaks, and a host of other matters. Silence simply plays into the hands of employers because a silent, uniformed, and underpaid worker is easier to control and cheaper than a talkative, knowledgeable worker. Knowledge is power. But to have that knowledge, workers need to talk to their coworkers and union organizers. So, exercise your right to discuss your terms and conditions of employment. Start by discussing your wages. You may learn something that can make you more powerful!