Employees Are Harmed by Employer Pay Secrecy Policies Because They Can Lead to Pay Discrimination

Many Texas employers tell their employees not to discuss salary information with coworkers. Sometimes this is a verbal direction. Often, the prohibition is written in an employee handbook. Sometimes, the pressure is indirect. Discussing pay is seen as indiscreet, unprofessional and pushy. These are descriptions from the past when people did not share personal information as much as they do now.

There are three problems with pay secrecy. First of all, enforced pay secrecy can lay the groundwork for employment discrimination on the basis of gender, age, race or other legally prohibited grounds. Second, banning salary discussion is clearly illegal under federal law. Third, Texas employees may find it difficult to complain about this practice, since employees can generally be fired for good reason, bad reason or no reason at all, including the all-purpose and hard-to-define bad attitude, although employees cannot be fired for illegal reasons.

Pay Discrimination is Illegal

Workers need a strategy or two to end the practice of pay secrecy. Each employee’s strategy may be different, but everyone’s strategy should include some solid information about prevailing pay, tips on salary negotiation, and accurate information about Texas and federal law and legal trends. The employment lawyers at Kilgore & Kilgore know how to counsel you in your efforts to achieve a fair wage for the work you do. If you are experiencing pay discrimination at your workplace, click this link Contact Kilgore Law. We offer a free evaluation of the facts of your case.

Pay Secrecy Historically and Now

Just to set the record straight, efforts to prevent employees from sharing salary information are illegal. Since 1935, the National Labor Relations Act has prohibited pay secrecy policies in most situations. These protections extend to unionized workers and non-collectively bargained employees as well.

A variety of federal laws and provisions of the Texas labor code prohibit certain employment practices, including pay policies, which discriminate on the basis of race, color, disability, religion, sex, national origin, or age. The Texas Equal Pay Act specifically provides that women employed by the state of Texas must be paid the same as men performing the same kind, grade, and quantity of service, and that no distinctions in compensation may be made based on sex.

Still, gag rules are remarkably common. Not only are employees unaware that the request for silence about salaries is unlawful, but their employers are often unaware as well.

The Harm of Secrecy and Pay Discrimination

Many people today know little about the story of Lilly Ledbetter. The Lilly Ledbetter Equal Pay Act of 2009 allows people who have suffered from pay discrimination to seek redress under federal laws against discrimination. The part of the story that many people forget or never knew about is that the law overturned a U.S. Supreme Court ruling that denied Mrs. Ledbetter back pay for a period of almost twenty years. Mrs. Ledbetter lost her case in the U.S. Supreme Court because she did not sue in time to preserve her claim.

Mrs. Ledbetter never knew that her male coworkers made more than she did. It was a secret. She found out only as she was nearing retirement when someone slipped her an anonymous note. Furthermore, Mrs. Ledbetter never collected back pay. The damage that had rolled on over her many years of employment affected her retirement savings, her Social Security payments and her ability, now at age 82, to afford even modest things.

Perhaps for historical reasons, pay secrecy policies and discriminatory wage schemes affect women disproportionately. According to the Bureau of Labor Statistics, women earn 76 percent of what men earn. The disparity is even greater for black women and Hispanic women. However, the laws protecting workers from wage discrimination and secrecy policies are generally race, age and gender neutral. The protection afforded by law is clear and very broad.

What You Should Do if You Have Been Warned Not to Talk About Salary in the Workplace

The first step is to assess and document your situation. It is important to understand that wage secrecy policies are actionable, separate and apart from pay discrimination practices. The remedies are also different.

You and your colleagues are likely aware of pay discussions that are prohibited. If a supervisor or HR manager advises you verbally not to discuss your pay or your raise with anyone, try to make contemporaneous and complete notes about this conversation restricting your discussions. Try to record the date, names and titles of individuals involved in the discussion, and details of the conversation. Keep your notes at home, not on your work computer.

If you want to discuss this situation with coworkers, you should do so only with trusted individuals and only outside the workplace. If a statement about pay secrecy is included in an employee handbook, get a copy of the employee handbook and keep it at home. Understand that supervisors and certain management employees may be prohibited from having these conversations. Remember too, that some personnel issues, including financial or health information, are legitimately protected from public disclosure.

Pay Discrimination Attorney’s Meeting

If an attorney is able to take your case, you and your attorney may determine that the best choice is to file a charge with the National Labor Relations Board. Some disputes are resolved before they get to a hearing. On the other hand, it may be better to pursue less adversarial options, at least at first. Many employers are genuinely unaware of the requirements of state and federal laws with respect to this issue.

Pay practices that are thought to be discrimination in a legal sense may be harder to discover, particularly if your employer has been successful in enforcing a pay secrecy policy. The advice of your attorney will be invaluable in determining whether your employer is engaged in pay discrimination on prohibited grounds and, if so, which avenues you may have for further action.

Outside Sources of Information to Help Define Pay Discrimination

Knowledge is power, so make sure that you do your research. It does not have to be limited to information available from coworkers. A number of online sources of salary information publish current data. Glassdoor.com is among the best known. Some national employment agencies let you customize your research by job title, state and city. At least one offers information about salary range and midpoint.

A number of professional organizations publish the results of annual salary surveys that are specific to location. Lawyers have done this for years. Some large employers, like universities, voluntarily publish salary information in the interest of fostering a culture of honesty and trust. None of these are necessarily infallible, but taken together they may provide a useful context for salary negotiations.

Negotiating a Pay Raise

If you are uncomfortable negotiating your salary, you’re not alone. Many people feel this way. Many agencies provide useful tips about how to have awkward conversations. Among these are Ladies Get Paid, WorldatWork and the National Women’s Law Center. Any of these may, in fact, lead to other resources that are specifically relevant to your situation.

Legislative Trends Regarding Pay Discrimination

Another aspect of the pay equity environment that you should be aware of has to do with legislative developments outside of Texas. Among these are state law initiatives that would, for example, require employers to disclose not only broad salary ranges for particular positions, but the narrower salary bands within a pay grade. The latter may be a far more useful piece of information for negotiating purposes than a range or particular figure you have in mind, say $50,000, for instance.

Some jurisdictions also prohibit inquiries about existing salary at the early interview stage of interviewing for new hires. This can be especially valuable for mid-career interviewees whose negotiations may otherwise be hampered by a history of pay discrimination through underpayment.

Our Employment Lawyers Can Help Employees Who Experience Pay Discrimination and Pay Secrecy

The Texas employment lawyers at Kilgore & Kilgore can help you assess your legal situation and advise on the best strategy for tackling this tricky situation. Click here to learn more about Employment discrimination, secrecy policies and workplace retaliation. We offer a free review of the facts of your case. Use this link to reach us Contact Us.

Leave a Reply

Your email address will not be published. Required fields are marked *