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.
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.