NYSDOL Adopts Regulations Governing Employment Policies that Restrict Employee Discussion of Wages

The New York State Department of Labor (DOL) has recently adopted regulations clarifying employers’ rights and obligations under New York’s equal pay law when implementing policies that restrict the discussion of wages at work. Amended in October 2015, the equal pay law makes it unlawful for an employer to prohibit employees from inquiring about, discussing, or disclosing their wages or the wages of other employees.  N.Y. Lab. Law § 194(4). 

The DOL’s new regulations, issued February 1, 2017, provide guidance on permissible limitations and notice requirements that employers must strictly adhere to. While employers may not outright prohibit employees from discussing wages, they may establish "reasonable workplace and workday limitations on the time, place and manner for inquiries about, discussion of, or the disclosure of wages." However, employers that place reasonable limitations on the time, place and manner of wage discussions are required under the regulations to issue written policies, "either electronically, through publicly available posting, or by paper copy,” delineating the limitations. The regulations also explain that employers cannot prevent employees from discussing wages of other employees if the employees whose wages are being discussed provided express permission. Here, "permission" means an "express, advance, authorization given voluntarily by the employee," which need not be in writing and which can be withdrawn by the employee at any time. Additionally, the rule requires employers to maintain copies of its written policies limiting employee discussion of wages during the period of applicability and for six years thereafter.

Importantly, the provisions in the equal pay law and the new regulations are not to be interpreted to diminish the rights of employees pursuant to any other law, regulation or collective bargaining agreement. Accordingly, employers should narrowly tailor their policies and consider all applicable laws, including the National Labor Relations Act which gives employees the right to get together and discuss the terms and conditions of employment, before implementing any written policies restricting worker discussion of wages.