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Can Discussing Salaries with Colleagues be Illegal?

Q. I have been at my company for two years and we are doing a lot of hiring. Rumor has it the new people are being offered more than we were hired at; for some people, even more than we are making now. I don't know what is true. I asked a few friends and they are afraid to talk about it because HR has told us not to discuss our financial and benefits information due to confidentiality issues and we can be fired if we do. I was told if I talk to anyone else about my pay or theirs, I will lose my job. Is that right? Is it confidential? Can they fire me for finding out we aren't paid the same?

A. You ask very interesting and timely questions. Many employers have policies that discourage employees from sharing a variety of confidential information, including wages and benefits. Violating the policy could lead to discipline or even termination of employment. That’s because many employers do not want their workers to know what others are earning, including executives who may be earning significantly more than the rank and file workers. Often these policies are found in the company’s employee handbook. You may have received an employee handbook and even signed a document in which you agreed to comply with the company’s policies.

Just because a policy is included in the handbook does not necessarily mean it is lawful. I consulted Valerie Samuels, an employment lawyer with the Boston firm Posternak Blankstein & Lund LLP. She noted that the National Labor Relations Board (NLRB) has recently examined employee confidentiality policies to see if they infringe on employees’ right to share information about wages and working conditions. Although the NLRB typically focuses on unionized workers, the scope of the federal labor laws also includes non-unionized employees.

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The NLRB decided that a company violated the law when it fired an employee for disclosing an executive’s salary at a meeting and saying that several other employees could have been hired for the amount the executive was paid. In this situation, the NLRB decided that employees could reasonably construe the confidentiality policy to prevent discussion about wages and other working conditions.

Attorney Samuels said that the company claimed the employee was fired because he accessed company computers to find out what the executive was paid. However, the NLRB did not believe this was the case and instead, decided that the real reason was because he disclosed the executive’s salary. Employees should be careful not to improperly access computer or paper documents to find out salary information because this may be a valid basis for termination.

As with all sensitive information, confidential conversations may not be. Identify the issue you really want resolved, and begin by going through formal channels with human resources and your manager.