Gag Rules are Against the Law— Know Your Rights!
When a new employee negotiates his/her salary, or when a worker negotiates a raise, the boss will often ask to keep the process quiet. It happens all the time, and most people won't suspect anything fishy is going on.
What it is, though, is a gag rule— an official or unofficial workplace policy that prevents employees from discussing wages or working conditions. The intent of gag rules is usually to keep workers from complaining about disparate wages and poor conditions.
By keeping workers from conferring with eachother, the bosses use social pressure to turn employees against themselves in the event anyone starts to get funny ideas about raises and workplace fairness.
It can come in the form of a nonchalant request, an exhortation not to spark jealousy and distrust among the workers. Many bosses and HR reps don't even realize what they're dong is wrong. But if your workplace has a policy that quashes discussion about wages and working conditions, then they're doing something very wrong.
Discussing salaries with coworkers is a taboo, so employers use social discomfort as leverage to pay you less. By keeping salary information tightly locked up, a company never has to justify their compensation rates— they can be as arbitrary as they want, without regard to merit, seniority, or fairness. The practice is so common that many companies have these policies written into employee handbooks.
There's evidence to suggest the practice is rampant. The Institute for Women's Policy Research, for instance, conducted a study finding that just over 60% of all private sector employees "report that the discussion of wage and salary information is either discouraged or prohibited and/or could lead to punishment." And punishing workers for engaging in protected activities counts as workplace retaliation.
Crafty employers are counting that their workers don't know their rights. So let's see what the law says. The National Labor Relations Act of 1935 outlines the right to organize:
"Sec. 7. [§ 157.] "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection" [emphasis added]
Discussing pay with coworkers would fall under "mutual aid" but many states have specific laws that further specify the right to discuss pay. For instance, California has Labor Code section 232:
"No employer may do any of the following:
(a) Require, as a condition of employment, that an employee refrain from disclosing the amount of his or her wages.
(b) Require an employee to sign a waiver or other document that purports to deny the employee the right to disclose the amount of his or her wages.
(c) Discharge, formally discipline, or otherwise discriminate against an employee who discloses the amount of his or her wages."
At the end of the day, you do unequivocally have the right to discuss wages with your coworkers, no matter what the boss says. And if the boss tries to prevent you from doing so, then he's technically violating the law. So then why are these policies, these gag rules, still so prevalent?
What happens is that, in the everyday working world, it's easy to get away with violating these rights, especially when the boss holds all the cards. Just because you have the right to discuss wages with your coworkers doesn't mean it won't get you in trouble. While it's illegal to retaliate against you for participating in such protected action, it doesn't help to be unemployed while you're making a retaliation claim.
And the implicit threat is always there, isn't it, that you'll get canned for causing trouble. So it might be best, depending on what things are like in your workplace, not to let anyone from management or HR know that you and your coworkers have been comparing pay stubs and discussing working conditions. Because the truth of the matter is that you can still be hurt for it in real terms, with a termination, demotion, and all kinds of intimidation, even if you're legally and morally vindicated.
So it's best to act with tact, and not tip your hand until you get to the negotiation table. I would suggest that you definitely take these discussions off of workplace property, and to broach the topic of wages with an excess of care. Explain to your coworkers that there's no law against it, and that there are actually laws supporting it. After all, you're not discussing income to make judgments about people, you want to make sure everyone gets fairly compensated.
Even if you're careful, your boss may still threaten you and your coworkers with adverse employment action, including termination. That's when it comes time to report them with the office of the labor commissioner, and then get a lawyer.
California has some of the strictest labor laws in the country, but the onus lies with employees to enforce them. So when it comes down to it, you have two options, and you can do them concurrently. One: make a complaint with the labor board, and wait for them to make a decision. And, two: file a separate claim in civil court to recover wages and other damages.
A recent investigation by KCRW suggests it may be difficult or impossible to collect back wages and damages even if the labor board rules in you favor. That's when it helps to have some legal muscle in your corner.
As always, thank you for reading, we hope this has been entertaining and informative. If you have a problem with wage theft, retaliation, or intimidation, contact us today to consult with one of our experienced employment lawyers.