While many employers discourage employees from discussing wage and compensation with each other, it’s important for you to know that all employees have the right to discuss their wages under both federal and Virginia law.

Protections Under Federal Law

The National Labor Relations Act (NLRA) protects employees’ rights to engage in concerted activity for mutual aid or protection. The National Labor Relations Board (NLRB) has interpreted this statutory phrase to include employees’ discussions of compensation. Therefore, policies that prohibit the discussion of wages are illegal. Employers cannot communicate to employees, whether orally or in writing, that they cannot discuss their compensation with other workers. Employers also may not retaliate against an employee who discusses wages. Examples of retaliation include firing the employee, putting the employee under surveillance, or threatening the employee.

The right to discuss compensation is guaranteed to both union and non-union workers. This right protects all types of conversations, whether in-person or on social media. Employers must ensure that any social media policies contained in their employee handbooks do not infringe on this right. This right also extends to all types of compensation including salary, overtime pay, bonuses, commissions, vacation and holiday pay, insurance, stock options, retirement, and other benefits.

The NLRA applies to most private sector employers. However, it does not apply to government employers, religious schools, agricultural employers, independent contractors, supervisors, or employers subject to the Railway Labor Act (this act governs interstate railroads and airlines).

Generally, if the NLRB finds that an employer has violated an employee’s right to discuss wages, it can impose remedies that make the employee whole, such as reinstatement and backpay for wrongfully discharged workers, or informational remedies, like rescinding an illegal policy and providing notice to employees of their rights. The NLRB cannot assess penalties against employers, so it cannot impose any fines.

Protections Under Virginia Law

In addition to the NLRA, Virginia passed a pay transparency law in 2020. This law prohibits an employer from firing an employee or otherwise retaliating if an employee (1) asks about or discusses wages with another employee or (2) files a complaint with the Department of Labor alleging a violation of the pay transparency law. Employers who violate this law are subject to a civil penalty of up to $100 per violation. The Commissioner of the Department of Labor may consider the size of the business and the severity of the violation in determining the amount of the penalty imposed. Therefore, even though the NLRB may not impose penalties, Virginia may impose a penalty on employers who violate employees’ right to discuss compensation.

This law does not protect an employee who, as part of their essential job functions, has access to the compensation information of other employees and who discloses such information to employees who do not have similar access. Of course, an employee who is required to disclose such information because of a legal duty, investigation, or in response to a formal complaint would be protected.

Davis Law Group Can Help with Your Employment Law Needs

If you are concerned about a handbook that restricts your employees’ rights to discuss wages or are facing a potential claim from an employee, make an appointment with our employment attorney today. We can assist you at any step whether that is preventing a violation or defending you against a complaint. Call Davis Law Group Today.