By: Nicholas J. Ferraro | July 7, 2022 | Wage and Hour
The short answer is yes, you can, under most circumstances. An employer in San Diego, California, generally cannot prevent you or your colleagues from discussing your pay. Keep reading to learn more and to learn about an important exception.
Employers Cannot Prohibit Employees From Talking About Pay
Under the National Labor Relations Act (NLRA), workers have the right to discuss their pay with anyone they want, including colleagues. The NLRA considers wages a vital condition of employment that’s protected speech.
The California Equal Pay Act goes further. It states that an employer cannot prohibit any employee from discussing or disclosing their wages. It also states that you are free to discuss other employee’s wages and are free to ask anyone what they make.
But there are some exceptions. If you’re an employee with access to company wage and payroll information, you cannot share employee pay information with anyone else. If you are in that position and another employee tells you how much they make, then you can share that employee’s information because they’ve told you directly and you’re not revealing confidential payroll data.
Pay Secrecy Policies Are Illegal
Pay secrecy policies attempt to stop employees from discussing wages. Employers argue this is important to keep morale high and ensure no one feels underpaid. In reality, employers use pay secrecy policies to hide wage gaps.
If you’re discussing wages at work when you’re supposed to be working, your employer may have the right to redirect your attention back to your work. They cannot, however, outright forbid you from discussing your wages. Pay secrecy policies are illegal under California’s Equal Pay Act.
If you’re discussing wages at work, or your employer learns that you were discussing pay outside of work, they cannot take any adverse action against you. You cannot be fired. You cannot be reprimanded. They cannot retaliate against you or make any threat against you for discussing wages.
Can I Sue for Being Underpaid?
Part of the California Equal Pay Act provides protections for employees to receive equal pay for equal work. If you learn that a person working in a similar position is making substantially more than you, yes, you may be able to sue your employer for underpayment.
Be aware, however, there are some exceptions. If an employer can make a legitimate business argument for any of the following reasons, they might be able to justify unequal pay:
- Seniority
- Merit
- Quantity or quality of work product
- Bona fide non-race-based factor, like education, training, or experience
If your employer cannot justify unequal pay, you could be entitled to compensation. This may include the amount of unpaid wages, plus overtime, plus penalties. Many underpaid employees receive double the wage gap amount as compensation for their employer underpaying them.
You can also attempt to recover legal fees. If you’re unable to discuss the wage gap with your employer, or they refuse to make up the difference, you may need to sue them. This will require the use of an attorney. If your claim is successful, you may be able to recover any court costs and attorneys’ fees spent trying to get your employer to close your wage gap.
Speak with a San Diego Employment Lawyer to Protect Your Rights
You have many rights as an employee in San Diego, California. If you’ve been retaliated against or work for a company with a pay secrecy policy, you have legal rights. Enforce them by speaking with Ferraro Vega today.
To learn more, call our San Diego law firm at (619) 693-7727 or contact us online.
