It wasn’t all that surprising to hear this from a corporate HR manager. What was surprising was the déjà vu.
Just three months earlier, some of my coworkers at the coffee shop told me that our bosses, who worked in the office on salaries, and even the owner, got a higher cut of the tips than we did. One barista told me that when she complained about it, the managers reduced her hours.
When you make minimum wage and have to fight for more than 30 hours per week, tips are pretty important, so I sat down with my managers to discuss the controversy. That’s when they told me not to talk about it with the other baristas. The owner “hates it when people talk about money,” my manager added, and “would fire people for it if he could.” I sulked back to the espresso machine, making my lattes at half speed and failing to do side work.
In both workplaces, my bosses were breaking the law.
Under the National Labor Relations Act of 1935 (NLRA), all workers have the right to engage “concerted activity for mutual aid or protection” and “organize a union to negotiate with [their] employer concerning [their] wages, hours, and other terms and conditions of employment.” In six states, including my home state of Illinois, the law even more explicitly protects the rights of workers to discuss their pay.
This is true whether the employers make their threats verbally or on paper and whether the consequences are firing or merely some sort of cold shoulder from management. My managers at the coffee shop seemed to understand that they weren’t allowed to fire me solely for talking about pay, but they may not have known that it is also illegal to discourage employees from discussing their pay with each other. As NYU law professor Cynthia Estlund explained to NPR, the law “means that you and your co-workers get to talk together about things that matter to you at work.” Even “a nudge from the boss saying ‘we don’t do that around here’ … is also unlawful under the National Labor Relations Act,” Estlund added.
And yet, gag rules thrive in workplaces across the country. In a report updated this year, the Institute for Women’s Policy Research found that about half of American employees in all sectors are either explicitly prohibited or strongly discouraged from discussing pay with their coworkers. In the private sector, the number is higher, at 61 percent.
This is why President Obama recently signed two executive actions addressing workplace transparency and accountability. One prohibits federal contractors from retaliating against employees who discuss their pay with one another. The other requires contractors to provide compensation data on their employees, including race and sex. But while these actions protect workers at federally contracted employers, they do not affect others.
The bill that would cover the rest of workers is the Paycheck Fairness Act. The law would both strengthen penalties to employers who retaliate against workers for discussing pay and require employers to provide a justification for wage differentials.
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