Under New York Labor Law §194(4), while an employer may not prohibit employees from inquiring about, discussing, or disclosing the wages they are paid, the law does permit an employer to establish “reasonable workplace and workday limitations on the time, place and manner for inquiries about, discussion of, or the disclosure of wages.”

The New York Department of Labor (“NYDOL”) has recently adopted new regulations clarifying this right to limit employees’ discussion of wages.

First, the NYDOL’s new regulations provide that if an employer is going to place reasonable limitations on the time, place and manner of wage discussions, the employer must issue written policies “either electronically, through publicly available posting, or by paper copy.”

Second, “such limitations must be justified without reference to the content of the regulated speech, narrowly tailored to serve a significant interest, and leave open ample alternative channels for the communication of information.”

Third, employers may limit disclosure or discussion of wages by employees whose essential job functions provide them with access to information about the wages of other employees (e.g., Human Resources employees or Payroll employees).

Fourth, employers may prohibit employees from discussing or disclosing information about other employees’ wages unless that other employee consents and gives prior verbal or written permission.

Lastly, if an employer wishes to take advantage of the affirmative defense for violations of section 194(4), the employer must be able to demonstrate that a written policy limiting wage discussions was promulgated to its employees.

If your employer is attempting to prevent employees from discussing their wages with each other, we recommend contacting a New York employment attorney to help enforce your rights.

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