On April 8, President Obama issued two executive orders which will impact employers who do business with the federal government. First, the President made it unlawful for contractors to retaliate against employees who discuss their pay. Second, the President ordered the Department of Labor to issue new regulations requiring contractors to provide pay data (by gender) to the federal government. Cozen O’Connor’s Labor & Employment Alert on the development can be found here.
My take on the first order is that it is irrelevant, and largely a publicity stunt. The National Labor Relations Board has long taken the position that federal law protects from retaliation those employees who discuss their pay (both union and non-union). The second order, although only affecting contractors, is more significant because it illustrates the complete disconnect between what this Administration says and the reality in the workplace. Statistics are inherently misleading because employees in the same job may be paid different wages for any number of legitimate reasons, including experience, skill, work schedule, etc. Indeed, the latest statistics on the White House, hardly a bastion of male chauvinism, show women earn significantly less than their male counterparts. These types of statistics are virtually worthless and will only provide ammunition to plaintiffs’ lawyers looking to file lawsuits.