As many of you know, the Paycheck Fairness Act has been approved by the House of Representatives and discussed in the Senate. There's a good chance it will be considered before Congress takes its August recess.
A post this week on Robert Fitzpatrick's Employment Law blog, Passage of the Paycheck Fairness Act Could Legalize Employees' Discussion and Disclosure of Their Wages with Co-Workers (via Jon Hyman), led me to consider a particular aspect of the Act that I hadn't previously given much thought to.
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.
It strikes me that this could have significant implications for HR and reward professionals. If employers can no longer prohibit employees' discussion of pay with their co-workers, to what lengths would - could - employees be allowed to go in their exchange of information? What roles would we (as HR and reward professionals) want - need - to go in tracking these efforts and complementing them with the educational framework necessary to ensure that this exchange is as well-informed and ultimately helpful as possible? What responsibility would we, should we, take for policing these activities? Who is ultimately accountable for enforcing the boundaries of employee privacy rights in this legal scenario?
Seems like this Section of the Act, if passed, could open some interesting doors for us.
Are we ready?
Image: Creative Commons Photo "U.S. Capitol" by Cliff1066
The article "Courage and the Supreme Court" in the PSI (now IAAP) magazine called The Secretary in April 1982 documented the case of a non-union executive secretary who won her job back after appealing her discharge for engaging in concerted employee communications protected under the National Labor Relations (Wagner) Act. She openly discussed her salary. It remains my understanding that discussing your personal pay with other employees still holds that protection. Revealing or discussing company-confidential information about other employees is, of course, a properly dischargable offense at present.
Mind you, most people will not go to the trouble of taking a discharge fight to the Supreme Court, so maybe this is like whistle-blower protections. Instead of having to sue to win your rights, a preemptive law will now exist to prohibit improper management actions. But this goes far beyond that, in permitting any payroll clerk to freely openly publish all pay records. Doubt that provision will survive in any final bill without substantial modification.
Nevertheless, this is just another move that certainly raises the heat under HR.
Posted by: E. James (Jim) Brennan | June 11, 2010 at 12:54 PM
Jim:
Good point, that Fitzpatrick also makes in his point, that the NLRA and the NLRB have consistently held that company rules prohibiting employees from discussing their pay are unlawful. My take, consistent with yours, is that by amending the FLSA as the the Paycheck Fairness Act Section proposes to do, the heat under HR is indeed cranked up significantly.
Posted by: Ann Bares | June 14, 2010 at 07:16 AM
I think that part of the issue also is that companies (especially those not currently unionized) don't know that they can't prevent this behavior.
In several occasions when I've mentioned this in HR circles when the topic of pay discrimination and then discussion between employees comes up, most, if not all, of the HR folks don't know anything about it.
Perhaps it would be just as useful to explain (to Congress and the American people) that there are currently safeguards in place, rather than passing another law to protect the same root problem.
Posted by: Amy S | June 15, 2010 at 10:24 AM