KNOW YOUR RIGHTS
Pay Transparency
OFCCP Makes it Safe for People to Ask
About, Discuss, and Disclose Their Pay
. 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 firing 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.
. 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.
. Are contractors prohibited from having
formal and informal pay secrecy policies?
Yes. Contractors are generally prohibited from
having polices that prohibit or tend to restrict
employees or job applicants from discussing
or disclosing their pay or the pay of others. For
example, a contractor’s policy that prohibits
employees from talking to each other about end-
of-the-year bonuses would be considered a
violation, as it prohibits employees from discussing
their compensation.
. What is considered pay?
Pay generally refers to any payments
made to an employee, or on behalf of an
employee, or oered to an applicant.
This includes but is not limited to salary,
wages, overtime pay, shift dierentials,
bonuses, commissions, vacation and
holiday pay, allowances, insurance and
other benefits, stock options and awards,
profit sharing, and retirement.
. Does the protection include
employer defenses or exceptions?
Yes. The Executive Order provides
contractors with two ways to justify or
defend actions taken that might otherwise
be seen as discriminatory and prohibited:
the “essential job functions” defense, and
the general, or “workplace rule” defense.
. What are “essential job functions”
under the Executive Order?
The term “essential job functions”
means the fundamental job duties of
the employment position an individual
holds. A job function may be considered
essential if:
200 CONSTITUTION AVENUE NW | WASHINGTON, DC 20210 | tel: 1-800-397-6251 | TTY: 1-877-889-5627 | www.dol.gov/ofccp
• The access to the amount of pay provided to
employees or oered to applicants, salary
structures and market studies related pay and
policies related to setting or changing employee
pay are necessary in order to perform that
function or another routinely assigned business
task; or
•
The function or duties of the position include
protecting and maintaining the privacy of
employee personnel records, including amounts
and types of pa
y provided to employees, salary
structures, market studies related to pay, and
policies related to setting or changing an
employees pay.
200 CONSTITUTION AVENUE NW | WASHINGTON, DC 20210 | tel: 1-800-397-6251 | TTY: 1-877-889-5627 | www.dol.gov/ofccp
Revised September 2016
. 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.
For example, they can:
• Discuss or disclose the pay of applicants or
employees in response to a formal complaint or
charge; as a part of an investigation, proceeding,
hearing, or action, including an investigation
conducted by the employer; or in accordance
with the contractor’s legal duty to furnish
information.
• Discuss their own pay with other employees.
• Discuss possible pay disparities involving other
employees with a contractor’s management
ocial or while using the contractor’s internal
complaint process.
• Discuss or disclose amount or types of pay
of other applicants or employees based on
information received through means other
than access granted through their essential job
functions.
. What is the “workplace rule” defense?
Under the “workplace rule” defense, a contractor
can defend against a claim of discrimination
by showing that it took adverse action against
an employee for violating a consistently and
uniformly applied company rule. The rule must
not prohibit, or tend to prohibit, employees or
applicants from discussing or disclosing their
compensation or that of a co-worker or job
applicant. Examples of “workplace rules” may
include rules on the use of leave and the length
of breaks.
. Does my employer have to tell me what
other employees are being paid?
No. Executive Order 11246 does not require
employers to provide employees or job applicants
with information on the pay of other employees or
applicants.
. Who does OFCCP protect?
OFCCP protects the rights of employees and job
applicants of companies doing business with the
Federal Government. This includes employees
at banks, information technology firms, meat
packing plants, retail stores, manufacturing plants,
accounting firms, and construction companies,
among others.
Filing a Complaint
. What can I do if I believe my employer
discriminated against me because I asked
about, discussed, or disclosed my pay or
the pay of another employee or applicant?
You can file a complaint with OFCCP. You do not
need to know with certainty that your employer
is a federal contractor or subcontractor to file a
complaint.
. How do I file a complaint with OFCCP?
You may file a discrimination complaint by:
• Completing and submitting a form online through
OFCCP’s Web site;
• Completing a form in person at an OFCCP oce; or
• Mailing, e-mailing or faxing a completed form to
the OFCCP regional oce that covers the location
where the alleged discrimination occurred.
The form is available online at http://www.dol.gov/
ofccp/regs/compliance/pdf/pdfstart.htm and in
paper format at all OFCCP oces. To find the oce
nearest you, visit the online listing of OFCCP oces at
http:// www.dol.gov/ofccp/contacts/ofnation2.htm.
You must remember to sign your completed
complaint form. If you fail to do so, OFCCP will
still take your complaint but an OFCCP investigator
will ask you to sign the form during a follow-up
interview. Complaints alleging discrimination
for discussing, disclosing, or inquiring about pay
must be filed within 180 days from the date of the
alleged discrimination, unless the time for filing
is extended for good cause. The same 180-day time
frame applies to complaints alleging discrimination
based on race, color, religion, sex, sexual
orientation, gender identity, or national origin.
. Can my employer fire, demote, or treat
me less favorably because I filed a
complaint?
No. It is illegal for your employer to retaliate
against you for filing a complaint or participating
in an investigation. OFCCP’s regulations protect
you from harassment, intimidation, threats,
coercion, or retaliation for asserting your rights.
. Can I file a complaint with OFCCP and
the Equal Employment Opportunity
Commission (EEOC)?
Yes, if you file with both OFCCP and EEOC, your
complaint will be investigated by the appropriate
agency. In some instances, OFCCP and EEOC
may decide to work together to investigate your
complaint.
OFCCP generally keeps complaints filed against
federal contractors that allege discrimination
based on discussing, disclosing, or inquiring
about pay. OFCCP also generally keeps
complaints filed against federal contractors
where there appears to be a pattern of
discrimination that aects a group of
employees or applicants, and those that allege
discrimination based on a person’s sexual
orientation or gender identity, disability, or
protected veteran status.
. What will happen if there is a finding that I
was a victim of employment discrimination?
You may be entitled to a remedy that places you in the
position you would have been in if the discrimination
had never happened. You may be entitled to be
hired, promoted, reinstated, or reassigned. You may
also be entitled to receive back pay, front pay, a pay
raise, or some combination of these remedies. In
addition, if OFCCP finds that the federal contractor
or subcontractor discriminated, OFCCP could seek
to have the company debarred or removed from
consideration for future federal contracts or have the
company’s current contracts or contract modifications
cancelled.
For more information:
..
Oce of Federal Contract Compliance Programs
200 Constitution Avenue, NW
Washington, D.C. 20210
1-800-397-6251
TTY: 1-877-889-5627
www.dol.gov/ofccp
Please note that this fact sheet provides general information. It is not
intended to substitute for the actual law and regulations regarding the program
described herein.
