Published in the Union Leader (6/18/2018)
Q: I recently found out that one of my employees has been sharing his salary with other employees and posting it on his Facebook page. A few employees who make less than him have complained about their wages. The worst part is the morale in his department is suffering. Can I punish the employee for discussing his salary? Can I issue a written policy prohibiting employees from discussing their compensation with other employees and on social media websites?
A: The answer to both of your questions is no. While you may wish to keep the salaries and other details of your employees’ compensation confidential, both federal and state law protect an employee’s right to discuss compensation both inside and outside of the office, including on social media websites.
Under the National Labor Relations Act, which applies to most private sector employers like you, employees have the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Discussing compensation is included in such concerted activities. The National Labor Relations Board has long considered employers who have pay secrecy policies or who retaliate against employees for disclosing their wages to be in violation of the Act.
New Hampshire law also protects employees who wish to discuss compensation by prohibiting employers from requiring that they refrain from disclosing their salaries as a condition of employment or requiring that they sign a document stating that they will not disclose their wages. New Hampshire law also prohibits employers from retaliating against an employee for inquiring about, discussing or disclosing the employee’s wages or the wages of another employee by, for example, demoting or terminating the employee.
As with most laws, there is an exception to the rule that employees may freely share information about compensation. An employee who has access to the wage information of other employees as part of his or her essential job functions, such as a human resource manager or a payroll coordinator, may not disclose the wages of employees to anyone who does not otherwise have access to that information unless required to do so by law.
The rationale for prohibiting pay secrecy policies like the one you wish to implement is that they foster discrimination and contribute to the gender wage gap. Like New Hampshire, other states have enacted specific laws that prohibit pay secrecy practices or have included such prohibitions as part of their equal pay law.
If you are concerned about morale based on this employee’s disclosure of his salary, you should review the pay rates of your employees and your system for determining compensation to ensure it is fair and equitable. This will not only allow you to explain to employees why they have been assigned a certain pay rate, but also will help to prevent future claims against your company for discrimination based on pay.
Ali Geiger can be reached at alexandra.geiger@mclane.com.
Know the Law is a bi-weekly column sponsored by McLane Middleton, Professional Association. We invite your questions of business law. Questions and ideas for future columns should be addressed to: McLane Middleton, 900 Elm St., Manchester, NH 03101 or emailed to knowthelaw@mclane.com. Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your situation.