Q. We heard that the president recently took action on whether employees are permitted to discuss compensation. Are there any new requirements on employers with regard to these kinds of conversations?
A. Not yet. In April, President Obama directed Secretary of Labor Thomas E. Perez to propose a rule requiring federal contractors to submit summary compensation data to the U.S. Department of Labor (DOL). At the same time, the White House issued an executive order prohibiting retaliation against federal contractors’ employees and applicants who discuss compensation information.
The executive order, titled “Non-Retaliation for Disclosure of Compensation Information” prohibits federal contractors and subcontractors from retaliating against any employee or applicant “for inquiring about, discussing, or disclosing the compensation of” the employee, the applicant, or any other employee or applicant.
The National Labor Relations Board already prohibits both unionized and nonunionized employers from retaliating against employees for discussing wages, hours and working conditions.
The new anti-retaliation regulations are due by Sept. 15.
The order concerning data collection is on a faster track. Obama issued a memorandum to Perez regarding “Advancing Pay Equality Through Compensation Data Collection.”
The Office of Federal Contract Compliance Programs (OFCCP) has been working on contractor compensation data issues. In August 2011, OFCCP received comments about the design and implementation of such a data collection tool.
The presidential memorandum directs the DOL to propose a rule by Aug. 6 requiring federal contractors to provide summary compensation data to the DOL.
It should be noted that current federal contractors must already provide summary and detailed pay information to OFCCP during compliance reviews, yet OFCCP has found very few instances of pay discrimination.
Clearly, the Obama administration has been frustrated by Congress’ failure to pass the Paycheck Fairness Act and implement other recommendations by the president’s task force on pay equity, the National Equal Pay Enforcement Task Force.
The issuance of another executive order on pay and a directive to the DOL to require submission of compensation data from federal contractors could be perceived as a last-ditch effort to move the pay equity discussion forward.
Details of when and how the proposed data collection tool will be implemented are uncertain for now, but we will update you as soon as more information is available.