Passage of the Paycheck Fairness Act Could Legalize Employees’ Discussion and Disclosure of Their Wages with Co-Workers

In Section 3 of the proposed Paycheck Fairness Act (H.R. 12, S. 182), the bill in Section 3(b) proposes to radically amend Section 215 of the FLSA (29 U.S.C. § 215(a)), including language that would appear to generally legalize discussions and disclosures amongst employees of their wages. The language proposes to add to Section 215(a)(3) language so that it would read, in part, as follows: “it shall be unlawful for any person-- . . . (3) to discharge or in any manner discriminate against any employee because such employee has inquired about, discussed or disclosed the wages of the employee or another employee.”

As the proposed amendment contains no language that relates the inquiry about wages or the discussion of wages or a disclosure of wages to gender discrimination issues, it would appear to be a general prohibition, making employer action predicated upon such inquiry, disclosure, or discussion a wrongful discharge. And, the proposed Paycheck Fairness Act would substantially enhance the damages available to a wrongfully discharged employee—such damages could now include compensatory and punitive damages, as well as “make whole” damages and attorneys’ fees.

The NLRB and the federal courts, applying the NLRA, have consistently held that company rules prohibiting employees from discussing their pay with others are unlawful. See Rafael Gely & Leonard Bierman, Pay Secrecy/Confidentiality Rules and the National Labor Relations Act, 6 U. Pa. J. Lab. & Emp. L. 121 (2003), available here.

For more on the Paycheck Fairness Act, see my paper here.

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