Can My Employer Prohibit Me From Discussing My Pay With My Coworkers?

It has long been illegal for employers to ban their employees from discussing pay. Yet these workplace "gag rules" continue to thrive. About 50% of American workers report that their employers prohibit or discourage discussions of wages and salaries. Gag rules can open the door to wage suppression and pay inequity, which can have a particularly damaging effect on women and people of color.

If employer policies requiring pay secrecy are unlawful, why are they still so common? One reason is that workers don't know their rights.

Here's a look at what the law says about discussing your pay with coworkers.

Your Right to Discuss Wages and Compensation

Under the National Labor Relations Act (NLRA), which was passed in 1935, almost all private sector employees have the right to communicate with coworkers about their wages. This right is broad, and encompasses many different types of communications, including:

• both face-to-face conversations and written messages, including via social media (although, depending on your employer's policies, you might not be able to use their equipment for electronic communications),
• discussions outside of work, on breaks from work, or even at work if employees are permitted to have other non-work conversations,
• conversations about how much you and your colleagues and managers make, presenting joint requests concerning pay to your employer, organizing a union to raise your wages, approaching an outside union for help in bargaining with your employer over pay, and approaching the National Labor Relations Board (NLRB) for more information on your rights under the NLRA, and
• discussions about any type of pay, including salary, wages, overtime pay, shift differentials, bonuses, commissions, vacation and holiday pay, allowances, insurance and other benefits, stock options and awards, profit sharing, retirement, and pay offered to a job applicant.

It is unlawful for your employer to have a work rule, policy, or hiring agreement that prohibits employees from discussing their wages with each other, or that requires employees to get the employer's permission to have such discussions. Even informal, unwritten policies or practices, such as when supervisors urge employees not to discuss pay, are illegal under the NLRA.

In addition, if you communicate about your pay with other employees, is unlawful for employers to punish or retaliate against you in any way, or to interrogate you, threaten you, or put you under surveillance. If your employer violates the NLRA, you may file a charge against them with the NLRB.

In 2014, President Obama signed an executive order effectively extending the NLRA rule to all businesses that are awarded federal contracts. Under this Order, federal contractors are prohibited from retaliating against employees who discuss their pay.

Workers Who Can't Discuss Pay

Although most employees have the right to discuss wages and compensation, there are a few types of workers who can't lawfully discuss their pay:

• Employees who have access to company payroll information. If your job function involves access to company wage and payroll information, you can't share employee pay information with others unless your employer or an investigative agency has directed you to do so.
• Employees of governments, religious organizations, agricultural companies, interstate railroads, and airlines. The NLRA and the 2014 Executive Order do not cover employees of federal, state, or local governments or religious organizations, nor do they cover agricultural laborers and employees of companies subject to the Railway Labor Act, such as interstate railroads and airlines. These workers are subject to the policies of their employers and may not be able to discuss their pay.

State Laws Requiring Pay Transparency

Not only is it illegal under federal law for private sector employers to prohibit employees from discussing pay, but in some states, the laws go so far as to require employers to disclose pay ranges to employees or job applicants.

This trend began in 2018 when California required employers to provide their pay scale to external job applicants upon request. Other states followed suit, and by 2021, states such as Connecticut, Nevada, and Rhode Island expanded on the California precedent by enacting laws requiring employers to provide pay information to current employees at hiring, when an employee changes roles, or upon first request (as well as providing pay scales to external candidates).

Colorado is unique in requiring that pay ranges be included in all job postings, and New York City will soon have a similar law. As of 2022, at least seven states and three cities have laws requiring pay transparency.

Contact an Employment Lawyer

If your workplace has an unlawful pay secrecy policy, or you have been retaliated against for discussing pay, an experienced employment lawyer can help you evaluate your potential remedies.