August 10, 2020

Volume X, Number 223

August 10, 2020

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District of Columbia Passes Legislation Allowing Employees to Discuss Wages

The District of Columbia has passed the Wage Transparency Act of 2014. The Act prohibits all private employers within the District from implementing workplace policies that forbid employees from discussing their wages with coworkers. The Act echoes President Barack Obama’s Executive Order 13665, mandating that federal contractors allow employees to discuss their wages. After a period of congressional review, D.C.’s Wage Transparency Act took effect on March 11, 2015.

The Act prohibits employers from enforcing workplace policies that “[r]equire, as a condition of employment, that an employee refrain from inquiring about, disclosing, comparing, or otherwise discussing the employee’s wages or the wages of another employee.” It also prohibits employers from retaliating against any employee that has disclosed or is believed to have disclosed wages. Finally, employees are protected from retaliation for lodging a complaint, testifying, or participating in an investigation related to a violation of the Act. 

The Wage Transparency Act not only requires that employees be allowed to discuss their own wages, it requires that employees be permitted to discuss the wages of other employees as well. There is nothing in the law that limits an employee’s right to discuss the wages of another employee, even when that information has been obtained improperly and without the permission of the employee whose wage information is being discussed. 

The Act provides an exception for certain employees, however, such as human resources professionals, who have “regular access to information regarding the wages of other employees in the course of the employee’s work.” These employees will not be allowed to disclose wages under the Act and employers may implement policies prohibiting their use of wage information.

Although this Act will not create a new private cause of action, there are civil penalties for employers who violate the Act’s provisions: a civil fine of $1,000 for the first violation; $5,000 for the second violation; and $20,000 for each subsequent violation.

The Act would broaden worker protections already provided under Section 7 of the National Labor Relations Act (“NLRA”). Generally, the NLRA authorizes private-sector, non-supervisory employees “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.” The NLRA has been interpreted consistently to prohibit workplace policies that bar employees from discussing their wages and working conditions. As a result, the freedom to discuss wages has long been a protected right for employees covered by the NLRA. However, D.C.’s Wage Transparency Act applies to all employees, regardless of supervisory status. Whether the new law is preempted in whole or in part by the NLRA will have to await judicial determination.

Jackson Lewis P.C. © 2020National Law Review, Volume V, Number 76

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About this Author

Teresa Burke Wright, Jackson Lewis, contracts litigation lawyer, administrative proceedings attorney
Principal

Teresa Wright is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She represents numerous employers in both litigation and administrative proceedings and advises clients with respect to state and federal employment laws.

Ms. Wright has handled jury trials and other litigation involving discrimination, harassment, the Americans with Disabilities Act, the Fair Labor Standards Act, the Family and Medical Leave Act and wrongful termination. She also counsels management regarding employment issues,...

703-483-8310
Daniel D. Schudroff, Jackson Lewis, Employment Litigation Lawyer
Associate

Daniel D. Schudroff is an Associate in the New York City office of Jackson Lewis P.C.  His practice is focused on traditional labor matters, employment litigation, and counseling.  Mr. Schudroff represents clients in both federal and state courts, as well as before administrative agencies including the National Labor Relations Board, New York State Public Employment Relations Board, Equal Employment Opportunity Commission, New York State Division of Human Rights, New York City Commission on Human Rights, and New York State Department of Labor. 

Mr. Schudroff also advocates on behalf of employers at arbitration hearings and during collective bargaining negotiations.  In addition, Mr. Schudroff regularly advises unionized and non-unionized clients with respect to a wide array of issues arising under the National Labor Relations Act and Labor Management Reporting and Disclosure Act. Mr. Schudroff also regularly counsels employers affected by the Fair Labor Standards Act, Railway Labor Act, Worker Adjustment and Retraining Notification Act, Uniformed Services Employment and Reemployment Rights Act, New York Labor Law, and Taylor Law. 

(212) 545-4000
Kessia Brown, Jackson Lewis, Employment Litigation Lawyer
Associate

Kesia Brown is an Associate in the Washington D.C. Region office of Jackson Lewis P.C.

Ms. Brown’s practice focuses on employment litigation and counseling and is actively involved in the firm’s Wage and Hour practice group. She has counseled and represented management in matters related to the Fair Labor Standards Act, Americans with Disabilities Act, Title VII, the Family and Medical Leave Act, whistleblower claims, ERISA and OSHA compliance.

Ms. Brown received her B.A. from Vassar College and her J.D. from the University of...

703-483-8300