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Loose lips sink shifts?

privacyA recent online article reported that two seventeen-year-old employees were fired from a Kansas City pizza joint for talking about their pay rates. Both were new employees with the same experience, and the female employee discovered she was earning $0.25/hour less than her male co-worker. When she contacted her employer for an explanation, she was fired for discussing wages with a co-worker, as was the male co-worker. The employer advised that discussing pay was against employer policy, even though both employees stated that such policy was never disclosed to them.

Even though this event occurred states-side, where an employee’s right to discuss compensation is protected by the U. S. National Labour Relations Act as part of the right to communicate about collective bargaining issues, it raises important considerations for employers.

Employers, of course, have limited obligations to keep personal information about employees private and not disclose such information except as required. Even where not covered by PIPEDA or other privacy statutes, most employers will have policy and procedure to protect such information. But do employees have any obligations not to disclose their own information to each other?

The short answer is no.

It may best suit employers to not have employees talk about their compensation packages amongst themselves (in order to reduce the chances of misunderstanding and feelings of resentment between employees and the employer), and indeed, many employees will not wish to discuss their compensation packages (as old values die hard and one doesn’t speak of politics, religion or salaries in polite company). But it is inevitable that employees, especially novice workers, will talk amongst themselves about workplace terms and conditions. As new employees, this is often how employees learn about the employer’s legal obligations and workplace policies, and so the employer who has transparent, well-communicated pay policies and who applies them fairly and accurately, will have little to be concerned about when employees compare notes.

A policy prohibiting employees from discussing compensation amongst themselves could be considered an unfair labour practice in contravention of employees’ rights to communicate with respect to working conditions and organizing under provincial and federal labour relations laws. Another concern is that any discipline meted out to an employee who talks about his or her pay, especially in cases where discrimination is found, may be found to be an illegal repercussion against an employee investigating and asserting his or her legal rights.

Employers in all provinces have legal obligations to not discriminate in pay policies and practices on the basis of sex or other protected grounds under human rights legislation, and in some provinces, employment standards legislation or pay equity legislation. Equal pay laws provide exceptions for experience, seniority, merit, productivity etc. Paying women less than men for the same job should, of course, never be done and pay differences amongst employees, regardless of sex, should also always be justifiable on the basis of fair and legal pay policies. Employers should never play favourites or reward employees outside of the policy on the assumption that no one will find out – someone always find out.

So even if such prohibition of employee talk is not determined to be illegal, it is still unadvisable. Such a policy may be interpreted by employees as the employer having secretive, unfair pay policies in which favouritism plays a role, and indeed, creates an environment in which discriminatory gender-based pay gaps can breed.

Rather than trying to limit communication between employees, employers are best advised to increase transparency and communication of fair pay policies and to respond to queries of unfairness or discrimination by investigating and correcting the problem, if one exists.

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HR PolicyPro

For more information on the topic and a sample policy, see Human Resources PolicyPro (“HRPP”) chapter C3.01 — “Pay Principles”.

Michele Glassford

President and Managing Editor at DRH and Lawyer at MacKinnon Law Associates
Michele Glassford, is a lawyer, researcher and policy analyst with a background in employment and labour law.In addition to a part-time law practice in Stoney Creek, Ontario, Michele has worked in the field of labour adjustment for the Health Sector Training and Adjustment Program and has been a Researcher for the Canadian Broadcasting Corporation. Michele also holds the position of President and Managing Editor at D.R. Hancocks & Associates Inc., author of the Human Resources PolicyPros. Read more
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