Category: Wrongful Termination

Work culture in the United States puts a heavy emphasis on working hard for good pay, but part of that culture discourages workers from discussing pay. It’s considered rude in most conversations, but the truth is, it can let some employees know they are not being paid the same as others for the same work. Employers prefer that this information not get shared among staff members, but is it illegal to discuss pay in the workplace?

The short answer is no. While companies may couch it in terms of “harassing” fellow employees or as against company policy, the law says being terminated for discussing salary in the workplace is illegal. This includes social media interactions, such as on Reddit, where a user named Erick posted a photo of a sign telling employees they would be fired for talking about their salaries or even listening to those conversations.

Discussing Pay in the Workplace

Originally passed in 1935 to spell out the rights of workers to organize and form unions, the National Labor Relations Act (NLRA or the Act) protects employees who discuss what they are paid with one another at their workplace. Because talking about salary can be one of the first steps for organizing, many non-unionized businesses discourage it. However, nearly all companies fall under the Act’s jurisdiction since it has low thresholds to ensure the largest number of employees are covered.

Retailers with a gross annual income of $500,000 or more (or $100,000+ for shopping centers and office buildings) must abide by the Act. Non-retailers with sales over $50,000 a year are also covered. Only employees of governments (federal, state, and local), agricultural harvest and preparation companies, or those subject to the Railway Labor Act do not fall under the NLRA jurisdiction. However, these individuals have protection under state public employee labor boards.

The Act covers face-to-face discussions, written communication, and social media, although many companies have policies about using their equipment for these talks. Conversations about pay are allowed to happen when employees are not at work, on a break, or at work if workers can have other discussions unrelated to work. Whether a union is present or not, everyone can talk about pay in the workplace.

Fired by an Employer – What to Do Next

While the gym where Erick worked is small, it is qualified for protection under the NLRA. Employees can discuss how much they make, ask the owner about pay, ask for help from an outside union, and contact the National Labor Relations Board (NLRB) for guidance. If the gym owner wrongfully terminates anyone for having these conversations, Erick and the other employees have options for what to do next.

Contact the NLRB

The National Labor Relations Board protects employees and enforces the law set forth by the NLRA. In the event of a termination for discussing salary, the employee can file a charge against the company by contacting a regional Information Office within six months of the firing. 

File for Unemployment

Being terminated means the employee is eligible for unemployment insurance. Filing for this coverage can pay bills while the worker seeks help from the NLRB and an employment attorney to pursue a claim against their former company. While the US Department of Labor oversees it, unemployment insurance is administered by state governments.

Hire an Employment Attorney

Understanding the complexities of a possibly illegal termination requires the help of an experienced employment lawyer. While the NLRB can assist in investigating the employer, discussing the specific circumstances with someone who knows how the laws apply is critical. This may not be the first time the company has fired someone, and previous cases can provide support for other claims.

Considering the company is likely to employ lawyers of their own to fight a wrongful termination claim, having a trusted legal advisor can ensure the employee’s rights are protected.

When Not to Discuss Salary at Work

Despite protections, there are times when talking about wages and benefits at work is ill-advised. An employer could have good cause for termination if an employee obtained and discussed details by accessing files they weren’t authorized to view. The same is true if the worker had the authority to access a coworker’s files but shared them with anyone other than the coworker or their supervisors as needed. 

As mentioned earlier, government employees do not have coverage under the NLRA. If they have access to protected information, discussing any details about the workplace can present a security risk. However, many states have public employee relations boards or acts, such as the one in California, that protect government workers. The acts work just like the NLRA to cover the unionization efforts of individuals such as school teachers, public works employees, and rail workers.

Unless everyone in the conversation has the full context, discussing salary could result in an employee misunderstanding why their pay is different. Years of work experience, education, length of time at the company, and other factors could influence why one person is paid more than another. Feelings can be hurt, and work relationships strained if someone takes it personally that they earn less without knowing the full story.

Employer Retaliation

Although it is illegal, some companies or supervisors may retaliate against workers who discuss salary. In July 2022, Lexi Larson posted a video about a new job to her TikTok account, celebrating her salary of $90,000. She continued to share videos about her pay, leading her employer to fire her. Their claim was that “she may share something private” on her account. 

In addition to firing a worker, companies may engage in more subtle negative actions, such as demotions, increased disciplinary discussions, or reductions in salary. A worker may find they are inexplicably moved to a less desirable shift or one that conflicts with their non-work needs. This could occur even if the employer previously agreed to the hours. 

Other retaliatory acts could include a supervisor reassigning high-profile projects to others or moving the employee to an objectionable work location. Reducing hours and associated pay can result in a “quiet firing” environment, making work so difficult that the employee quits independently. In any of these situations, workers can benefit from a discussion with an experienced employment lawyer in their area. 

With some notable exceptions, California is an at-will employment state. What this means is that your employer can fire you at any time and for any reason. Obviously, there are some very common reasons for termination of employment, including the top ten reasons listed below.

1. Poor Work Performance

Poor work performance is the most commonly cited reason for an employee’s termination, and is a catch-all term that refers to a number of issues, including failure to do the job properly or adequately even after undergoing the standard training period for new employees, failing to meet quotas, requiring constant supervision, or requiring that the work be redone.

2. Misconduct

Certain types of misconduct not only will result in being fired from your job, but can also put you at risk of facing legal consequences, as well. Behaviors that qualify as employee misconduct include physical or sexual harassment of co-workers or customers, bullying, fraud, and neglect. More than 20 percent of employees know or have worked with someone who has been fired for wasting time or disrupting other employees at the office.

3. Chronic Lateness/ Absence

If you are regularly half an hour late for work or you take a lot of time off, it places a burden on your employer and co-workers, as they are tasked with picking up the slack caused by your absence in order to prevent a loss of productivity. Around 22 percent of U.S. employers have fired an employee for providing a fake excuse when calling in sick, and 41 percent have fired an employee for showing up late.

4. Company Policy Violations

Companies do not simply create policies for their own benefit. Many times, the company’s policies are required through governmental and industry regulations and violations of those policies will leave your employer with little choice but to take verbal or written disciplinary action or to terminate your employment. Other company policies, such as the dress code, the company’s view on romantic relationships between co-workers, and the company’s view on social media use are important guidelines for you to read carefully upon accepting the job to ensure that you are able to uphold those policies.

5. Drug or Alcohol Use at Work

In spite of the legalization of marijuana for medical and recreational use in California, the drug still remains illegal at the federal level and many employers participate in the Federal Drug Free Workplace Act, which provides a number of benefits for the employer and results in mandated drug testing when an employee is hired, randomly throughout employment, and if the employee suffers an on-the-job injury. Approximately 70 percent of the 14.8 million individuals who abuse drugs are employed. The use of drugs and alcohol during work results in lost productivity, an increased risk of injury, and will generally cost you your job.

6. Personal Use of Company Property

 Usually, a company will allow an employee a single or limited use of a copier in order to copy a personal document. However, frequent personal use of copiers, office supplies, printers, and laptops for your personal use — or, worse, your “side gig” — will likely be viewed as theft and can result in the loss of your employment.

7. Theft or Property Damage

Taking anything — even pens or paper — from your company for personal use is not only a fire-able offense, but it can also result in legal troubles for you, as well. Additionally, as an employee, you are expected to treat company property with care. Being careless with your work laptop, the copy machine, and other equipment can also jeopardize your employment.

8. Falsifying Company Records

Providing false information on company records not only places your employment at risk, but could also create risk for the entire company, particularly if the records are financial in nature or pertain to industry regulations. Worse, falsifying information can — in some industries and depending on the nature of the document — place your coworkers and customers at risk of financial loss, injury, or even death.

9. Inappropriate Use of Social Media

Social media has been both extraordinarily beneficial in the workplace for its ability to connect people with the products and services they need, as well as extraordinarily harmful in terms of the legal risk that inappropriate social media use on-the-job can result in as well as the loss of productivity created by employees who are spending time scrolling when they should be working. Around one-third of U.S. employers have disciplined an employee for violating the company’s social media policy, and 17 percent have fired an employee for something they posted on social media.

10. Insubordination

While most employers look for employees who are able to think for themselves and offer ideas or insights as to how to improve the workplace, there tends to be a firm line drawn when it comes to insubordinate actions, such as repeatedly or disrespectfully arguing with the manager or other co-workers, outright refusing to obey orders from a manager, or otherwise exhibiting behaviors that obstruct the normal flow of business. There is a notable exception to insubordination, and that is when an employee refuses an order from a manager that would result in a violation of the law or of public policy. Generally, in these circumstances, federal whistleblower laws protect the employee from termination.

Were You Wrongfully Terminated?

As stated, there are exclusions from the at-will employment rule in California.  Some of those exclusions include:

• Termination of an employee who is under written or employed contract and has met the provisions of that contract.
• Employees who belong to a union and are covered by a collective bargaining agreement that lays out the standard of termination.
• Employees whose employers have said or done things that overcome the presumption of at will, such as a progressive discipline policy.

If you believe that you were wrongfully terminated or you have been falsely accused of any of the behaviors listed above, our experienced employment attorney can explain your legal options. Contact Perkins Asbill, a Professional Law Corporation, online or by calling 916-446-2000 to discuss your case.