“That’s legal: If you find out about somebody else’s salary even if you’re doing exactly the same job, you can be retaliated against, including being fired, in most places.”
Hillary Clinton, speech in Tampa, Sept. 6, 2016

Clinton made this claim after retelling the story of two teens from Kansas who were fired after asking their boss about their pay.

The story goes like this. Jensen Walcott, 17, was hired at a pizza restaurant in Kansas. The same day, her friend Jake Reed, 17, was hired for the same job. They had the same level of experience. But Walcott found out Reed was making 25 cents per hour more than she was.

Walcott assumed it was a mistake and asked her boss about the disparity. Her boss said it was against policy to discuss her pay with Reed and fired both of them.

Jensen Walcott and Jake Reed spoke about their experience of unequal pay and dismissal from a Kansas pizza restaurant at the Democratic National Convention July 28. (The Washington Post)

Walcott shared her story on social media, and it went viral. Clinton tweeted about it: “Good for you, Jensen. Every woman deserves equal pay, no matter what her age. Keep up the hard work — and courage!” The teens were invited to the Democratic National Committee, where they spoke out for equal pay.

The restaurant later clarified that it did not have such a policy, and the teens were wrongly fired. They were offered their jobs back with equal pay, but they declined.

Clinton called on equal-pay legislation to close wage gaps and to protect workers from retaliation for asking about pay. To her credit, Clinton listed three exceptions to fair-pay gaps, in jobs where employees have set salaries and know how much others are being paid: government jobs, military jobs and jobs under union contracts. But in the vast majority of jobs, Clinton said, employees have no idea whether they are being paid fairly.

How accurate is her claim that it is “legal” to be retaliated against “if you find out about somebody else’s salary”?

The Facts

In general, employees are protected from retaliation against discussing their pay. But there are exceptions.

The National Labor Relations Act protects employees — regardless of whether they’re in a union — who discuss compensation. The law allows employees “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

This law doesn’t cover “supervisors,” broadly defined as those who have “authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action.” Courts have held that “supervisor” applies to university faculty, nurses, bus line dispatchers and seasonal workers.

Not all industries are covered, including government workers, agricultural workers, independent contractors and other specific groups of workers. (Federal contractors, however, must adhere to President Obama’s non-retaliation executive order.)

Employers can regulate pay discussions if they have a “legitimate and substantial business reason” to do so, which courts have interpreted to mean employers can prohibit employees from discussing pay during working hours, according to the National Women’s Law Center.

The remedies are limited to back pay and reinstatement for the fired employee. So if the retaliation is anything other than firing the employee, there’s no real recourse, according to the law center. Plus, employees need to file such complaints to the National Labor Relations Board, rather than taking it to court. There is no private right of action like other federal statutes that deal with workplace issues, according to the National Labor Relations Board.

The Clinton campaign pointed us to Marcia Greenberger, co-president of the National Women’s Law Center. She said Clinton is correct, because the nominee is addressing the “driving concern as a matter of public policy right now” to explicitly protect all employees from retaliation and to allow access to pay information.

Weak remedies and the lack of an explicit protection of all employees make the law a “paper tiger in many instances,” Greenberger said. Not enough employees and employers know about the protections, she said, as shown by the 62 percent of women and 60 percent of men in private-sector jobs that reported their employers discourage or prohibit them from talking about wage and salary information.

But the protection does exist, albeit not for all workers. Sixteen states plus the District of Columbia explicitly ban retaliation against employees for talking about compensation, going further than the protection under the National Labor Relations Act.

An employee talking to co-workers or managers to complain or ask about compensation “may constitute protected opposition” and make employer retaliation “actionable,” according to the Equal Employment Opportunity Commission.

PolitiFact noted that workers who aren’t protected under the National Labor Relations Act might find protection under Title VII of the Civil Rights Act, which prohibits employers from discriminating on the basis of race, gender, religion or national origin.

“Quite honestly, there is a lot of confusion about this topic,” said Angela Cornell, director of the Labor Law Clinic at Cornell Law School. “Many people don’t believe they are protected, and many employers think that they have the right to tell employees not to discuss pay amongst themselves and to take disciplinary action against those that violate those kinds of policies. It’s very, very commonplace. . . . But in fact, workers are protected when they are discussing pay.”

The Pinocchio Test

In most cases, workers are protected against retaliation for discussing their pay, even if they’re not in a union. But exceptions exclude several groups of employees from such protections.

It’s fair to question how effective this law is, or whether it’s being enforced. Several labor law experts said there’s a lot of confusion about how it’s applied, and that employers and employees believe the protection only applies to union-protected jobs. Employees may not complain about it to the National Labor Relations Board out of fear of retaliation, or because they are unaware they can. And employers may enact pay-secrecy policies, believing it is legal to do so.

As shown by the exceptions she described in her speech, Clinton clearly knows there is no blanket prohibition or protection of employees when it comes to equal pay or pay transparency. She is calling on an explicit ban on companies from enacting pay-secrecy policies. Even the existing protections are murky, as shown by the fact that the pizza restaurant manager fired the teens while citing a company policy that didn’t exist.

Clinton goes too far saying that it’s “legal” for employees to be retaliated against or fired after discussing their pay with co-workers. Had she avoided the word “legal,” this claim may qualify for One Pinocchio, since there are existing gaps in the law and inconsistent application of it that have led to the types of retaliation she describes.

Two Pinocchios

 


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