Talking With Coworkers About Pay and Working Conditions in New York

In New York, an employer may not flatly forbid workers from talking to each other about what they are paid. Under New York State Labor Law § 194(4), no employer shall prohibit an employee from inquiring about, discussing, or disclosing the wages of that employee or another employee.⁠^[1] Federal law adds a second protection: section 7 of the National Labor Relations Act gives employees the right to engage in "concerted activities" for mutual aid or protection, a right that is not limited to union members and that reaches working conditions as well as pay.⁠^[3][6] Both rules have limits, and they cover different groups of workers.

The New York State rule on wage discussions

Subdivision 4 of Labor Law § 194 deals with pay secrecy. Its core sentence reads: "No employer shall prohibit an employee from inquiring about, discussing, or disclosing the wages of such employee or another employee."⁠^[1]

The statute covers three verbs (inquiring, discussing, disclosing) and two subjects (the employee's own wages and another employee's wages).⁠^[1] It also says that nothing in the subdivision requires an employee to disclose his or her wages, so a coworker who prefers not to answer is free to decline.⁠^[2]

What limits can an employer set?

An employer may, in a written policy provided to all employees, establish reasonable workplace and workday limitations on the time, place and manner of wage inquiries, discussions and disclosures.⁠^[2] The statute attaches three conditions and one example:

• the limits have to be in a written policy provided to all employees;⁠^[2]
• they have to be reasonable and concern time, place and manner;⁠^[2]
• they "shall be consistent with standards promulgated by the commissioner" and with all other state and federal laws; and⁠^[2]
• they may include prohibiting an employee from discussing or disclosing the wages of another employee without that employee's prior permission.⁠^[2]

If an employee does not follow reasonable limits in such a written policy, that failure is an affirmative defense for the employer, but only where the adverse employment action was for the failure to follow the limits "and not for mere inquiry, discussion or disclosure of wages" in accordance with the policy.⁠^[2]

The exception for people with access to pay data

The State prohibition does not apply where an employee who has access to the wage information of other employees as part of the employee's essential job functions discloses those wages to individuals who do not otherwise have access to the information.⁠^[1][2] Human resources and payroll staff are the obvious examples of jobs with that kind of access.

The exception has its own exception. It does not apply where the disclosure is in response to a complaint or charge, or in furtherance of an investigation, proceeding, hearing or action under the Labor Law, including an investigation conducted by the employer.⁠^[2]

What if the employer retaliates?

A separate section of the same State law deals with retaliation. Labor Law § 215 bars an employer or any other person from discharging, threatening, penalizing or otherwise retaliating against an employee who complained about conduct the employee reasonably and in good faith believes violates the Labor Law, or who "otherwise exercised rights protected under" the Labor Law.⁠^[7] An employee may bring a civil action under § 215 within two years, and the remedies include reinstatement or front pay, lost compensation, attorneys' fees and liquidated damages of not more than $20,000.⁠^[8] Section 215 does not apply to employees of the State or its municipal subdivisions.⁠^[9] The details are in retaliation for wage complaints: Labor Law § 215.

Section 194(4) also says nothing in the section limits an employee's rights under any other law or collective bargaining agreement.⁠^[2]

The federal rule: concerted activity under the National Labor Relations Act

Federal labor law approaches the subject from a different direction. Section 7 of the National Labor Relations Act says employees "shall have 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."⁠^[3] It is an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of those rights.⁠^[3]

The National Labor Relations Board (NLRB), the federal agency that enforces the Act, gives these examples of protected concerted activity:⁠^[6]

• talking with one or more coworkers about wages and benefits or other working conditions;⁠^[6]
• circulating a petition asking for better hours;⁠^[6]
• participating in a concerted refusal to work in unsafe conditions; and⁠^[6]
• joining with coworkers to talk directly to the employer, to a government agency, or to the media about problems in the workplace.⁠^[6]

According to the NLRB, an employer cannot discharge, discipline or threaten an employee for this activity, or coercively question the employee about it.⁠^[6]

Do you need a union?

No. Section 7 gives its rights to "employees," and its text is not limited to people who belong to a union.⁠^[3]

Does one person acting alone count?

The NLRB says a single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer's attention, trying to induce group action, or seeking to prepare for group action.⁠^[6]

How protection can be lost

The NLRB states that an employee can lose protection by saying or doing something egregiously offensive or knowingly and maliciously false, or by publicly disparaging the employer's products or services without relating the complaints to any labor controversy.⁠^[6]

Who the federal Act leaves out

The Act's definition of "employee" does not include an individual employed as an agricultural laborer, in the domestic service of a family or person at his home, by a parent or spouse, as an independent contractor, or as a supervisor.⁠^[4] Its definition of "employer" does not include the United States or any State or political subdivision of a State, so State and local government workers are outside it, as are federal employees.⁠^[4]

The six-month charge deadline

The federal Act is enforced by filing an unfair labor practice charge with the NLRB. The Board cannot issue a complaint based on an unfair labor practice that occurred more than six months before the charge was filed with the Board and a copy served on the person against whom it is made.⁠^[5] The charge has to be both filed and served within that period.⁠^[5] The Act also forbids discharging or discriminating against an employee for filing charges or giving testimony under it.⁠^[3]

State and federal rules side by side

Question	New York State: Labor Law § 194(4)	Federal: National Labor Relations Act
What is protected	Inquiring about, discussing, or disclosing one's own or another employee's wages.⁠[1]	Concerted activities for collective bargaining or other mutual aid or protection, which the NLRB says include talking with coworkers about wages, benefits or other working conditions.⁠[3][6]
Does it need a group?	The text refers to "an employee" inquiring, discussing or disclosing.⁠[1]	The activity is "concerted"; a single employee is covered in the situations the NLRB lists.⁠[6]
Limits the employer may set	Reasonable written time, place and manner limits provided to all employees.⁠[2]	Protection can be lost through egregiously offensive or knowingly and maliciously false statements, or unrelated public disparagement.⁠[6]
Who is outside the rule	An employee who discloses wage data obtained through essential job functions to people without access, outside a complaint or investigation.⁠[2]	Supervisors, independent contractors, agricultural laborers, domestic workers, and employees of a State or political subdivision.⁠[4]
Where and when to act	Labor Law § 215 covers retaliation against an employee who exercised rights protected under the Labor Law; a civil action under it may be brought within two years.⁠[7][8]	A charge filed with the NLRB and served within six months.⁠[5]

The table covers State and federal law only. In New York City, the New York City Human Rights Law (NYCHRL) bars retaliation against a person who opposed a practice that law forbids, which matters when the pay conversation is about discrimination.⁠^[10]

When the conversation is about discrimination or illegality

Pay talk often leads somewhere else: a discovery that people doing similar work are paid differently, or that overtime is not being paid. Different laws then come into play.

• Pay that may be discriminatory. Opposing a practice forbidden by the New York State Human Rights Law (NYSHRL) is protected against retaliation under Executive Law § 296(7), and the City law has a parallel clause.⁠^[11][10] See protected activity: what counts.
• Unpaid wages or overtime. A complaint to the employer about a suspected Labor Law violation is protected by Labor Law § 215 and does not need to cite the law.⁠^[7][12] The federal Fair Labor Standards Act has its own retaliation clause for employees who file a complaint or testify under that Act.⁠^[13]
• Other illegal activity. New York State Labor Law § 740 protects an employee who discloses to a supervisor or public body an activity the employee reasonably believes violates a law, rule or regulation.⁠^[14] See New York whistleblower law.
• Union activity. New York State Labor Law § 201-d lists union membership and the exercise of rights under federal labor law or article 14 of the Civil Service Law among the things an employer may not punish.⁠^[15] See Labor Law § 201-d and union members: grievances and discrimination claims.

A complaint that the boss is unfair, without more, is a different matter; see unfair versus illegal treatment at work.

What people commonly get wrong

• "My handbook says pay is confidential, so I cannot discuss it." Under the State statute an employer may not prohibit the discussion; it may only set reasonable written time, place and manner limits.⁠^[1][2]
• "Only union members have rights under federal labor law." Section 7 gives its rights to "employees," and the text is not limited to union members.⁠^[3]
• "Managers are covered like everyone else." The federal Act's definition of employee does not include an individual employed as a supervisor.⁠^[4]
• "Anything I say about my employer online is protected." The NLRB describes ways protection can be lost, including knowingly and maliciously false statements.⁠^[6]
• "I can share anyone's salary I come across at work." The State rule lets a written policy bar disclosing a coworker's wages without permission, and it does not protect disclosure of pay data obtained through essential job functions.⁠^[2]

Practical points

• Ask whether your employer has a written policy on wage discussions and read what it actually limits; under the State statute, limits belong in a written policy provided to all employees.⁠^[2]
• Share your own pay freely if you choose; ask before repeating a coworker's.
• If you raise a pay concern with management, doing it in writing and, where true, on behalf of named coworkers makes the group nature of the concern clear.
• Keep the date of any warning or discipline that follows, and compare it with the time limits in retaliation deadlines compared.

The general framework for retaliation claims is in what is workplace retaliation.