An October 16 2021 Facebook post by performance artist and perennial political candidate Vermin Supreme highlighted an October 11 tweet claiming that it became illegal for employers to forbid workers from discussing their pay rate 86 years earlier:
That tweet quoted another, which showed a sign stating: “Crew are not allowed to discuss their rate of pay.” Text on the image interjected:
If you see this shit, def talk about your pay cause your employer is def hiding some shady shit and you all need to stick together for it
In response to both the image and the interjection, the tweet claimed that it has been illegal for employers “to forbid workers from discussing their pay for the last 86 years (since the National Labor Relations Act of 1935,)” and if an “employer tells you this they are directly breaking labor law.”
As the tweet indicated, the National Labor Relations Act of 1935 was indeed passed 86 years before 2021:
Also known as the Wagner Act, this bill was signed into law by President Franklin Roosevelt on July 5, 1935. It established the National Labor Relations Board and addressed relations between unions and employers in the private sector.
After the National Industrial Recovery Act was declared unconstitutional by the Supreme Court, organized labor was again looking for relief from employers who had been free to spy on, interrogate, discipline, discharge, and blacklist union members. In the 1930s, workers had begun to organize militantly, and in 1933 and 1934, a great wave of strikes occurred across the nation in the form of citywide general strikes and factory takeovers. Violent confrontations occurred between workers trying to form unions and the police and private security forces defending the interests of anti-union employers.
In a Congress sympathetic to labor unions, the National Labor Relations Act (NLRA) was passed in July of 1935. The broad intention of the act, commonly known as the Wagner Act after Senator Robert R. Wagner of New York, was to guarantee employees “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 concerted activities for the purpose of collective bargaining or other mutual aid and protection.” The NLRA applied to all employers involved in interstate commerce except airlines, railroads, agriculture, and government.
One section of the NLRA (“29 U.S. Code § 157 — Right of employees as to organization, collective bargaining, etc.”) specifically made a space for labor unions and other collective efforts:
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, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title.
A Department of Labor (DOL) Office of Federal Contract Compliance Programs (OFCCP) document [PDF] (“KNOW YOUR RIGHTS Pay Transparency”) discussed the provision in the context of federal contractors:
OFCCP Makes it Safe for People to Ask About, Discuss, and Disclose Their Pay
1. What is employment discrimination based on inquiring about, discussing or disclosing my pay or that of other employees?
This type of discrimination generally exists where an employer takes an adverse employment action against employees or job applicants because they inquired about, discussed, or disclosed their own compensation or the compensation of other employees or applicants. One example is an employer fring an employee because she discussed her salary with another employee. Another example is an employer decreasing an employee’s work hours because he asked his coworkers about their rates of overtime pay.
2. What are my rights?
Under Executive Order 11246, you have the right to inquire about, discuss, or disclose your own pay or that of other employees or applicants. You cannot be disciplined, harassed, demoted, terminated, denied employment, or otherwise discriminated against because you exercised this right. However, this right is subject to certain limited exceptions.
Executive Order 11246 largely related to specific federal contracts. On the same list, the seventh question and answer addressed some “limited exceptions” (again in relation to federal contracts):
7. What is the “essential job functions” defense?
Under the “essential job functions” defense, a contractor can defend against a claim of discrimination by showing that it took adverse action against an employee because the employee (a) had access to the compensation information of other employees or applicants as part of his or her essential job duties and ( b) disclosed that compensation information to individuals who did not otherwise have access to it.
However, even employees who have access to compensation information as part of their essential job functions may discuss, disclose, or inquire about compensation in some instances.
The National Labor Relations Act is accessible at NLRB.gov, but it wasn’t easy to locate the specific claim — that employers could not legally prohibit employees from discussing their rate of pay.
In April 2014, NPR addressed the provision (and why it was hard to spot) in an article about Obama-era protections for federal contractors. In this instance (“‘Pay Secrecy’ Policies At Work: Often Illegal, And Misunderstood”), the language did not solely apply to federal contractors or employees:
What Makes ‘Pay Secrecy’ Illegal?
Under the National Labor Relations Act, enacted in 1935, private-sector employees have the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
The language is somewhat antiquated, but according to [Cynthia Estlund, a law professor at New York University], “it means that you and your co-workers get to talk together about things that matter to you at work.”
Compensation is one of those things you can talk about. The National Labor Relations Board, says Estlund, “has long held that these pay secrecy policies that many employers have in writing violate the National Labor Relations Act.”
Even if an employee signs a nondisclosure agreement with an employer, Estlund says, the employee would still be protected when talking about salary.
“You can’t just declare information about people’s pay to be confidential information that can’t be discussed,” she says.
An October 2021 tweet claimed, “it’s been illegal for employers to forbid workers from discussing their pay for the last 86 years (since the National Labor Relations Act of 1935)”; the tweet spread in cropped screenshots and was popular on Twitter, as well. Although it was a bit obscured by “antiquated” language, the NLRA does enshrine the rights of employees (including those in the private sector) to collectively bargain. Discussing rates of pay was one of the activities considered protected as part of collective bargaining.