January 29th, 2009
When It Comes to Pay, Don’t Ask and Don’t Tell
Today’s the day that President Barack Obama is signing the first big piece of workforce legislation to come his way: the Lilly Ledbetter Fair Pay Act, which would make it easier for workers to sue for pay inequities.
This was the simplest of the various workplace-oriented bills for Congress to push through for the new president because, unlike the contentious and deceptively named Employee Free Choice Act, there is a broader base of support for the principle of fair and equal pay in the workplace.
One thing that I was surprised to read, however, was that the Fair Pay Act might also do something else—make for more workplace cultures where pay was transparent and everyone knew what everyone else was making.
Miami Herald workplace columnist Cindy Krischer Goodman makes a bit of a case for doing this, and she quotes well-known financial analyst Suze Orman, who “believes employees could protect and empower each other by sharing salary information and confronting a boss if there are major discrepancies.”
She goes on to add this: “It is almost universally accepted that mayhem would ensue in a law firm or any workplace if people knew what their co-workers were making. Salary information traditionally is more guarded than a celebrity’s home number. Those pushing for equal pay for women think that should change.”
I’m all for trying to make the pay system better and fairer, but like all parents tell their children at one time or another, life isn’t fair. And although the push for pay equity is generally a noble and worthwhile goal, as a longtime manager I also know something else: Nobody wins when workers know what everybody else makes.
The problem is pretty basic. People are hired at different times under different conditions for different reasons. Unless you have a strict salary scale, there is no way to equalize the conditions one person is hired under versus the conditions another person might be hired under a year or two later. It’s a near impossible task to make this process “fair.”
I asked compensation expert Ann Bares about this—Ann writes the insightful Compensation Force blog that we feature here at workforce.com—and she had a similar perspective.
“I am firmly in your camp on the issue of [pay] transparency,” she said in an e-mail. “I think the philosophy, the objectives and the system should be transparent—but not the actual salaries themselves. Not only is it an invasion of privacy, but I think, at the end of the day, organizational leadership has the right to make the call on what they think a job is worth. An employee has the right to disagree. I have had many, many one-on-one discussions with employees about their pay and this experience serves to convince me that most of us simply cannot be completely objective about our compensation (and some of us have wildly improbable ideas about the value of the work we do).
“There are certainly risks to making that call wrong, for an employer,” Ann added. “If [pay is] too low, employees (the good ones, at least) will be lured away. If too high, the cost of doing business rises above business competitors. If done in a discriminatory manner … well, I think the new laws will ensure that the employer is caught and punished. I don’t necessarily think that this is a bad thing—but I am concerned about how far over the line of reasonability we may be headed. I posted about a little research on this topic awhile ago—46 percent of employees want to know what others make, but 89 percent of them are reluctant to have their own salary data shared with others. So, I think we are a little conflicted ourselves about the idea!”
My experience over many years as a manager has led me to a simple conclusion: No one is really happy when people talk about pay and wages in the workplace, and the Lilly Ledbetter Fair Pay Act is not going to change that basic dynamic. Comparing paychecks creates bad feelings, bad blood and bad karma. It’s also an HR nightmare to have your workers focused on everything other than the job at hand.
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In cases dating at least as far back as 1987 the clear holding of the National Labor Relations Board, a national agency with jurisdiction over employers in the private sector, is that it is illegal for any covered employer to have a rule, written or oral, prohibiting employees from discussing their wages or other earnings. More recently this aspect of federal law was upheld by the Sixth Circuit Court of Appeals in NLRB v. Main Street Terrace Care Center, 218 F.3d 531 (2000). Thus, while it is interesting that Suze Orman agrees with federal law, while other management consultants do not, the discussion among them is purely academic. It is simply illegal under federal law to prohibit employees from discussing their wages. Any employee who works for an employer subject to the National Labor Relations Act, and whose employer has or institutes such a rule, may file a charge against the employer at the nearest office of the National Labor Relations Board (www.nlrb.gov).
Posted by: Al Palewicz | February 3rd, 2009 at 9:03 am