1
INTRODUCTION
The Equal Pay Act, passed over a half century ago,
prohibits sex-based wage discrimination (U.S. Equal
Employment Opportunity Commission 2020).
But the gender pay gap remains substantial: full-
time, year-round women workers earn 18 percent
less than their male counterparts (Hegewisch and
Mariano 2020). A lack of knowledge about who
makes what within organizations contributes to
this continuing disparity. A growing body of research
suggests that pay transparency – improving such
knowledge – reduces the gender wage gap (Baker
et al. 2019; Bennedsen et al. 2019; Gamage et al.
2020; Kim 2015).
Pay transparency advances other aspects of
workplace equity as well. Asymmetric wage
information, whereby employers know more than
workers about pay rates, undermines workers’
ability to negotiate for higher pay. Improving
pay transparency is an essential step towards
empowering workers and ensuring corporate
accountability.
In principle, the National Labor Relations Act
(NLRA) protects workers’ rights to discuss their
pay. In practice, however, the NLRA has many
loopholes limiting its effectiveness in protecting
workers against employer retaliation for violating
pay secrecy policies, such as the exclusion of
workers with supervisory responsibilities (National
Women’s Law Center 2019a). The Paycheck
POLICY BRIEF
Research Highlights
• Compared to men, women are more
likely to work under a pay secrecy policy
and to violate a formal pay secrecy
policy.
• Between 2017-2018, nearly half of
full-time workers reported they were
either discouraged or prohibited from
discussing wages and salaries.
• Over the past decade, despite increased
state legislation preventing pay secrecy,
informal pay secrecy has increased.
• Public sector and unionized workers are
less likely to be subject to pay secrecy
policies compared to their private sector
and non-union counterparts.
IWPR #C494
January 2021
ON THE BOOKS, OFF THE RECORD:
EXAMINING THE EFFECTIVENESS OF PAY SECRECY LAWS IN THE U.S.
Shengwei Sun, Institute for Women’s Policy Research
Jake Rosenfeld, Washington University in St. Louis
Patrick Denice, University of Western Ontario
2
Fairness Act would strengthen protections and remedies, but Congress has failed to adopt it
every year since its initial introduction in 2010 (National Women’s Law Center 2019b).
In 2010, IWPR conducted a national survey on pay transparency and found that policies and
practices restricting workers’ rights to discuss their pay were widespread. At that time, about
half of all workers (51 percent of women and 47 percent of men) – and 62 percent of women
and 60 percent of men in the private sector – reported that they were either discouraged or
prohibited from discussing wage and salary information (Hayes and Hartmann 2011).
Since then, more than a dozen states plus the District of Columbia have adopted legislation
banning pay secrecy rules in the workplace. How have these laws affected pay secrecy policies?
Do such policies stop discussions about pay? This brieing paper examines whether recent
legislation has enhanced pay transparency, reveals what types of workers are still subject
to pay secrecy policies, and provides the irst analyses of whether employees abide by these
workplace speech restrictions.
METHODOLOGY
In the fall of 2017, we partnered with the survey research irm GfK Knowledge Networks (now
Ipsos) to ield a national survey of U.S. workers; we then re-surveyed a subsample in late fall
2018. The survey was restricted to full-time employees aged 18 and over who were not self-
employed. We obtained 2,568 complete surveys in 2017, and 1,694 from the follow-up, for a total
sample of 4,262 valid responses.
1
We weighted the samples to produce estimates representing
the adult (18 years and over) U.S. population who are full-time employees. Analyses based on
the 2017/2018 survey update the results of the original IWPR survey.
The survey results suggest that, between 2010
and 2018, a declining share of workers reports
workplace policies that formally prohibit discussion
of pay. At the same time, however, pay secrecy rules
appear to have shifted from formal prohibition to
informal discouragement of pay transparency.
Private sector and non-unionized workers are
especially likely to work under pay secrecy policies.
Moreover, women continue to be more likely than
men to be subject to pay transparency bans, but
women are also more likely than men to discuss
pay even when prohibited. Understanding where
and how recent state-level anti-secrecy laws
fall short can help identify effective strategies
for empowering workers, especially women. This
paper concludes with a discussion of the policy
implications of our indings for closing the gender
pay gap.
1
The follow-up survey was designed to measure changes in work-
place policies and respondents’ characteristics between 2017 and
2018, an aspect of the research not discussed in this brief.
3
A DECADE OF CHANGE:
PROGRESS AND LIMITS OF PAY TRANSPARENCY LAWS SINCE 2010
IWPR’s 2010 national survey asked workers whether they were allowed to discuss their pay
or were subject to workplace rules, formal or informal, that discourage or ban workers from
discussing wages and salaries with one another (Hayes and Hartmann 2011). Courts have
consistently ruled that discussions about wages and salaries constitute “concerted activity”,
and thus are protected against employer interference under Section 7 of the NLRA (Gely and
Bierman 2003). Given this legal protection, the survey results were surprising: nearly one in
ive workers said their employer had a formal prohibition against discussing pay, and roughly
half of all workers – rising to more than 60 percent of private-sector workers – said they were
subject to a pay secrecy policy of some kind (Rosenfeld 2017).
The prevalence of pay secrecy
practices in the workplace may
partly low from the loopholes
in and weak enforcement of the
NLRA. The law permits employers
with a “legitimate and substantial
business justiication” to institute
secrecy policies. It excludes
supervisors (broadly deined),
public sector workers, domestic
workers, agricultural workers, and
workers employed by railroads
or airlines (National Women’s
Law Center 2019a). In addition,
employers who are found to
violate the law are usually subject
only to minor ines and penalties.
Following the publication of IWPR’s 2010 survey, and faced with the defeat of the Paycheck
Fairness Act in the Republican-controlled Senate, lawmakers turned to other strategies
to combat pay secrecy (National Women’s Law Center 2019a). In 2014, President Obama
issued an executive order barring irms that contracted with the federal government from
maintaining pay secrecy policies. Upon signing the order, the President declared, “Pay secrecy
fosters discrimination and we should not tolerate it” (Eilperin 2014). In just the past decade,
over a dozen states and the District of Columbia joined California (strengthening an earlier
prohibition), Illinois, Colorado, Maine, Michigan, and Vermont in passing their own legislation
banning pay secrecy rules. The scope of these anti-secrecy laws varies across states, but they
all explicitly ban retaliation against workers who discuss pay and prohibit employers from
requiring workers to waive their right to discuss pay (Harris 2018).
4
FIGURE 1. U.S. states regulating pay secrecy policies
Notes: This map shows the states with policies regulating pay secrecy in the workplace as of 2018. Six states (California,
Illinois, Colorado, Maine, Michigan, and Vermont) had policies in place prior to 2010. Eleven states (Connecticut, Delaware,
Louisiana, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, Oregon, and including the District
of Columbia) instituted policies between 2010 and 2018. We ielded our survey in the fall of 2017 and 2018. Since then,
lawmakers in Hawaii, Nebraska, Virginia, and Washington have taken action to curb pay secrecy policies in their states. We
classify these states as “no policy up to 2018” since they had not passed legislation at the time of our survey.
Source: Authors’ analysis of state legislation.
WITH TIGHTENED LEGAL RESTRICTIONS, FORMAL WORKPLACE PROHIBITIONS
DECLINED, YET PAY SECRECY POLICIES REMAIN PREVALENT
In our 2017-2018 survey, we replicated IWPR’s original pay secrecy question to ask whether
respondents’ employers publicized wage and salary information, permitted discussions of
wages and salaries, discouraged such discussions, or prohibited them outright. Nationally, in
2017/2018 about half of all workers (48.2 percent) reported that they were either banned
or discouraged from discussing their pay (Figure 2), relecting little change from 2010 (48.4
percent).
2
The share of workers reporting formal prohibitions declined from 18.1 percent in
2010 to 12.8 percent – a substantial change.
3
At the same time, however, the share of workers
whose employers discouraged pay discussion actually increased from 30.3 percent to 35.4
percent.
4
These results may relect employers switching from formal to informal pay secrecy
rules in the wake of increased national attention and state-level legislation.
2
See Figure 1 in Rosenfeld (2017).
3
As note 2 above.
4
Some of the apparent changes may be due to different samples: whereas the 2010 IWPR survey included part-time work-
ers, the 2017/2018 surveys only include full-time workers.
5
FIGURE 2. Pay secrecy policies among U.S. workers, 2017/2018
Notes: Figure shows the percentage of U.S. workers subject to each pay secrecy policy. Percentages are weighted using survey
weights.
Source: Authors’ analysis of the 2017/2018 Pay Secrecy survey.
These national results include workers in states
with pay secrecy laws as well as workers in states
without such protections. Table 1 disaggregates
survey responses into three groups: workers in
states with no statutes against pay secrecy at
the time of the survey, workers in states that
banned pay secrecy policies before 2010, and
workers in states that enacted pay secrecy
prohibitions between 2010 and 2018. The
analysis inds that workers in states with
no pay secrecy bans are the least likely of all
groups to report that pay information is public
(23.1 percent) or that discussion is permitted
(23.2 percent). Interestingly, workers in states
with recently-adopted pay secrecy prohibitions
report relatively similar results: 26.2 and 24.7
percent respectively. Employees in states with
policies in place prior to 2010 are most likely to
work for transparent organizations.
While restrictions on discussions about pay are more prevalent in those states that have not
enacted legislative bans, even in states with pay secrecy bans, nearly one in ten workers is
formally barred from discussing pay. These results suggest that state-level action has been
only marginally effective, especially when the policy has been in place for a signiicant period.
6
TABLE 1. Workers in States with Recent Pay Transparency Laws Are Not Substantially More
Likely to Report Pay Transparency than Workers in States with No Such Laws
Pay secrecy policies among U.S. workers, by state-level legislation
Pay secrecy policy No policy up to 2018
Policy between
2010 and 2018
Policy prior
to 2010
Public 23.1 26.2 26.5
Discussion is permitted 23.2 24.7 30.6
Discussion is discouraged 35.6 37.3 32.9
Discussion is formally prohibited 15.5 9.4 8.4
Refused/Don’t know 2.5 2.4 1.6
Unweighted N 2,489 874 899
Notes: This table presents the percentage of U.S. workers working under pay secrecy policies, by whether their state has
passed legislation regulating such policies. Percentages are weighted. See Figure 1 for the states included in each group.
Source: Analysis of 2017/2018 Pay Secrecy survey.
PUBLICSECTOR WORKERS AND
UNIONIZED WORKERS ARE LESS
LIKELY TO BE SUBJECT TO PAY
SECRECY
Prior research indicates two workforce
characteristics that inluence the
likelihood of being subject to a pay
secrecy policy: labor market sector and
union membership (Rosenfeld 2017). In
2010, only 15.1 percent of government
employees said that their employer
discouraged or prohibited them from
talking about pay, and less than a third
of union members reported that they
worked under a pay secrecy policy.
5
As
Figure 3 shows, government employees
and union members continued to
experience greater pay transparency in
2017-18. As in 2010, the large majority
of public sector employees (nearly 75
percent) work in organizations that
publicize pay. By contrast, just one in ten
private sector workers report that pay
information is public at their workplace,
even lower than the 2010 level (17
percent).
6
5
See Table 2 of Rosenfeld (2017).
6
See Figure 1 of Institute for Women’s Policy Research (2017).
7
The majority of the U.S. labor force works for a
private sector, for-proit organization.
7
Altogether, 60 percent of workers in the for-
proit, private sector work under a pay secrecy
policy of some sort, just six percentage points
lower than in 2010 (66 percent).
8
The proportion
of private-sector workers who reported that
they are formally prohibited from discussing
their pay fell from 25 percent in 2010 to 16
percent in 2017-18, but at the same time, the
share of private-sector workers reporting that
they are discouraged from discussing their pay
increased from 41 percent to 44 percent.
9
While workers in non-proit organizations are more likely than workers in private, for-proit
organizations to report transparent pay policies, on the whole pay policies in the non-proit
sector are much closer to the restrictive practices used in the private sector than to the more
transparent policies in the public sector (Figure 3).
FIGURE 3. Just One in Ten Private Sector Workers but
Seven in Ten Public Sector Workers Report Full Pay Transparency
Pay secrecy policies among U.S. workers by sector, 2017/2018
Notes: Figure shows the percentage of U.S. workers subject to each pay secrecy policy, by sector
(government; private, for-proit; non-proit). Percentages are weighted. Sample excludes those who
responded “refused/don’t know” to the questions about either pay secrecy policy or sector (n=118).
Source: Analysis of the 2017/2018 Pay Secrecy survey.
7
Authors’ calculation based on labor force statistics from the Current Population Survey, available at https://www.bls.gov/
web/empsit/cpsee_e05.htm.
8
As note 6 above.
9
As note 6 above.
8
UNIONIZATION PROVIDES GREATER PAY TRANSPARENCY
What about the effect of unionization? Figure 4 below conirms what past research has shown:
unionized workers are much less likely to report that their workplaces have a pay secrecy
policy. Over two-thirds of unionized respondents (68.7 percent) say that pay is public at their
organization; another 20 percent report they are permitted to discuss pay. The majority of
workers without union representation work under a pay secrecy policy (55.7 percent), including
14.9 percent who say that their employer formally bars talking about pay with one’s peers.
The unionization rate in the United States today has fallen to just over 10 percent; in the private
sector it is closer to 6 percent, just one-ifth of the rate in the public sector (33.9 percent; U.S.
Bureau of Labor Statistics 2019). The majority of full-time workers (63.3 percent) in our sample
were non-union workers employed by private, for-proit irms. Among this group, almost two-
thirds (63.5 percent) are subject to a pay secrecy policy (Figure 5).
FIGURE 4. Non-Union Workers Are Far More Likely than
Union Workers to be Prohibited or Discouraged from Discussing Pay
Pay secrecy policies among U.S. workers by union membership, 2017/2018
Notes: Figure shows the percentage of U.S. workers subject to each pay secrecy policy, by whether
the worker belongs to a union. Percentages are weighted. Sample excludes those who responded
“refused/don’t know” to the questions about either pay secrecy policy or union membership (n=112).
Source: Analysis of the 2017/2018 Pay Secrecy survey.
9
FIGURE 5. Pay Secrecy Policies are Most Common for Non-Union Private Sector Workers
Percentage of workers subject to pay secrecy policies,
by employment sector and union membership status, 2017/2018
Notes: Figure shows the percentage of U.S. workers subject to pay secrecy policies (either discouraged or prohibited from
discussing pay), by sector (government; private, for-proit; non-proit) and union member status. Percentages are weighted.
Sample excludes those who responded “refused/don’t know” to the questions about either pay secrecy policy, sector, or union
member status (n=146).
Source: Analysis of 2017/2018 Pay Secrecy survey.
WOMEN ARE MORE LIKELY THAN MEN TO WORK UNDER A PAY
SECRECY POLICY
The primary impetus behind lawmakers’ efforts to prohibit pay
secrecy policies is to eliminate a means by which employers can,
intentionally or not, discriminate against women in setting pay.
Information about co-workers’ pay can reveal ongoing or past
instances of unlawful wage and salary disparities. The absence of
such information means many women may never become aware
of discriminatory pay gaps. In 2010, women were not signiicantly
more likely to report working under a pay secrecy rule compared
with men (54.2 percent of women and 52.3 percent of men;
Rosenfeld 2017). This had changed by 2017/2018, when 52.2 percent
of women and 46.8 percent of men reported working under a pay
secrecy policy (Figure 6). Women were signiicantly more likely than
men to report that their employer formally barred discussing pay
(15.7 percent and 10.9 percent, respectively).
10
FIGURE 6. Women Are More Likely Than Men to be Subject to Formal Pay Secrecy Rules
Pay secrecy policies among U.S. workers by gender, 2017/2018
Notes: Figure shows the percentage of U.S. workers subject to each pay secrecy policy, by gender. Percentages are weighted.
Sample excludes those who responded “refused/don’t know” to the questions about pay secrecy policy (n=80).
Source: Analysis of the 2017/2018 Pay Secrecy survey.
DO PAY SECRECY POLICIES WORK?
Do workers take pay secrecy policies seriously and abide by their
restrictions? The 2017/2018 survey asked respondents whether
they talk about wages and salaries with their colleagues.
10
Of
particular interest is whether workers who lack access to pay
information nonetheless discuss pay. Pay information could be
empowering for these workers.
11
Among this group, as one would
expect, workers who report that they are permitted to discuss
their pay are signiicantly more likely to do so than workers who
are discouraged or prohibited from doing so. In workplaces with
no speech prohibitions, over half of all workers (52.3 percent)
report discussing pay with their peers. In workplaces that
discourage workers from discussing pay, well over a third of
workers (36.8 percent) say they nonetheless discuss pay. And
in establishments with a formal ban on discussing pay, just
under a third of workers (30.4 percent) say they engage in such
talk (Table 2). The comparatively low proportion of workers
reporting pay discussions in organizations where pay rates are
publicly available (33.8 percent) likely stems from the lack of a
need to talk about something to which everyone has access.
10
The 2010 survey did not include such a question.
11
This part of our analysis excludes those who have access to pay information as a condition of their jobs (for example, HR
managers).
11
Table 2. Share of workers who discuss their pay with
their coworkers, by pay secrecy policy
Pay secrecy policy Percent
Public 33.8
Discussion is permitted 52.3
Discussion is discouraged 36.8
Discussion is formally prohibited 30.4
Refused/Don’t know 10.3
Overall 38.6
Unweighted N 3,455
Notes: Table shows the percentage of U.S. workers who discuss their pay, by the pay secrecy policy at their workplace. Sam-
ple restricted to those who are not granted access to pay information as part of their jobs. Percentages are weighted.
Source: Analysis of the 2017/2018 Pay Secrecy survey.
In short, not everyone who is permitted to discuss pay actually does so (though having that
permission makes it signiicantly more likely) and not everyone who is prohibited or discouraged
from discussing their pay heeds that prohibition (though such prohibitions make it much less
likely that pay is discussed). Does the willingness to violate workplace pay secrecy policies vary
by gender?
On the one hand, women
may uncover possible
gender pay disparities by
discussing their pay, and
thus may be expected to
be more likely to ignore
pay secrecy rules. On the
other hand, prior research
suggests that women
are less likely to engage
in risky behavior in the
workplace,
12
and thus
women may be less likely to
violate formal or informal
policies against discussing
pay. The 2017/2018 survey
supports the former—
that women are signiicantly more likely to break the rules: 35.3 percent of women but just
24.0 percent of men subject to a formal pay secrecy policy say they talk about pay (Figure 7).
Women are also more likely than men to discuss wages and salaries in those workplaces that
publicize pay (37.4 percent compared with 30.7 percent).
Men, on the other hand, are more likely to report discussing pay where there are no prohibitions,
and men and women are equally likely to talk (or not talk) about pay in contexts where employers
discourage such discussions (Figure 7).
12
For research on gendered patterns of rule-breaking in the workplace, see Huiras et al. (2000) and Morrison (2006).
12
FIGURE 7. Women Are Signiicantly More Likely than Men
to Discuss Pay Even When Doing So Is Formally Prohibited
Share (%) of workers who discuss their pay, by gender and pay secrecy policies, 2017/2018
Notes: Figure shows the percentage of U.S. workers who discuss their pay, by gender and pay secrecy policy. Sample is
restricted to those who are not granted access to pay as part of their jobs, and excludes those who responded “refused/don’t
know” to the question about pay secrecy policy (n=80; 38 women and 42 men). Percentages are weighted.
Source: Analysis of the 2017/2018 Pay Secrecy survey.
Altogether, among workers who are formally prohibited from discussing pay, one in three women
violate such policies, compared with one in four men. These indings point to a conundrum
faced by women in the workplace. They likely have more to gain from knowing what colleagues
earn, and yet they are more likely than men to be subject to formal pay secrecy policies. Women
workers are pushing back against pay secrecy rules, but by doing so, they may be more likely to
face adverse consequences.
13
CONCLUSIONS AND POLICY IMPLICATIONS
This brieing paper presents updated data on organizations’ pay secrecy policies across the
United States. The 2017/2018 survey indings suggest that pay secrecy policies remain common
despite recent media attention, executive action, and state-level legislation meant to curtail
them. Since 2010, there has been a clear drop in the proportion of workers who report that their
employer formally prohibits pay discussions, but there has been no corresponding increase in
the share of workers reporting that they are free to discuss their pay, or work in organizations
where pay rates are publicly available. Instead of greater transparency, the share of workers
reporting that they are discouraged from discussing their pay has increased. Overall, existing
legislative changes have not been suficient to rid workplaces of rules against discussing pay.
Restrictions on workers’ freedom to discuss their pay are concentrated in private-sector,
non-union organizations. While pay secrecy policies are not universally effective in stopping
discussions about pay—a substantial share of workers report talking about their pay with
colleagues despite restrictions—the presence of such a policy is associated with reduced pay
discussions among workers.
The survey inds substantial gender differences: Women are more likely than men both to
work under a formal pay secrecy policy and to violate that policy. This suggests a greater
dissatisfaction with the status quo by women. Women are much more likely than men to
report experiencing gender-based discrimination in pay and promotions, and to see gender
discrimination as a major problem in the workplace (Parker and Funk 2017; Saad 2015). Yet,
research also points to the perils of leaving it to individual women to seek out information
and negotiate their salaries. Several studies suggest that women and men do not fare equally
when they do negotiate for higher pay, that women tend to be penalized for attempting to
do so, and that, even when men and women request the same salary, women receive lower
offers than men (Artz et al. 2018; Exley et al. 2020; Hernandez-Arenaz and Iriberri 2018; Säve-
Söderbergh 2019).
Nevertheless, workplace transparency practices can likely help equalize opportunities at the
bargaining table. Existing research suggests that gender differences in negotiation outcomes
are less pronounced when the terms of negotiation and the bargaining range are clear, whereas
ambiguity ampliies the gender difference (Recalde and Vesterlund 2020). Thus, initiatives to
enhance workplace pay transparency would not only allow women to uncover whether they
are being illegally underpaid, they may also beneit them at the negotiation table. Moreover,
in organizations where pay is public and where there is less reliance on individual negotiation,
such as in the federal government or in unionized workplaces, gender wage gaps are smaller
(Hegewisch and Ahmed 2019; U.S. GAO 2020).
Not knowing what one’s colleagues earn, and not being able to ind out, disadvantages workers
subject to bias and provides cover for employers engaged in pay discrimination, whether
intentional or not. State-level pay transparency laws were designed to lower this barrier, by
explicitly prohibiting retaliation against workers for discussing wages and salaries. Legislation
alone, however, does not appear to be enough to shift entrenched workplace norms and
practices regarding pay secrecy. There is a need to understand better why these laws have
had limited effects on the ground and to suggest improvements.
14
Legislation alone might not be enough to shift entrenched workplace norms and practices
regarding pay secrecy. Many workers subject to a pay secrecy policy may not know that these
policies are illegal, and employers imposing illegal restrictions may not believe that there
is a realistic threat of enforcement. Legislation should be backed up by enforcement and
information. Future research should also investigate how to address employers’ informal pay
secrecy practices and how to challenge longstanding “salary taboos” among workers.
Moreover, while these laws protect workers from retaliation for discussing wages and
salaries, they do not mandate transparency practices by the employers and they leave the
responsibility for inding out about pay to individual (women) workers. Anti-secrecy laws
can be more effective when complemented by other approaches, such as limiting employers’
reliance on salary history during recruitment and selection, mandating employers to provide
job applicants with the salary range for the advertised position, strengthening measures to
increase employers’ analysis of their own pay policies, and adding pay reporting to employers’
obligation to report equal employment opportunity data (for example, see Frye 2020).
Last but not least – given that public-sector workers and unionized workers are much less
likely to be subject to pay secrecy, and also tend to beneit from lower gender wage gaps
– strengthening workers’ rights to unionize and supporting investment in public-sector jobs
would likely be particularly effective in increasing pay transparency as well as improving pay
equity.
This brieing paper was written by Shengwei Sun at the Institute for Women’s Policy Research
(IWPR), Jake Rosenfeld at Washington University in St. Louis, and Patrick Denice at the University
of Western Ontario. The authors thank Ariane Hegewisch (IWPR) for her editorial advice and
comments on multiple drafts of this paper, Andrea Johnson at the National Women’s Law
Center for reviewing this brief, participants at the Equal Pay Today (EPT!) roundtable, Jeffrey
Hayes (IWPR) for advice, and Adiam Tesfaselassie (IWPR) for editorial assistance. Financial
support for this research was provided by National Science Foundation (Award #1727350), the
Ford Foundation, Pivotal Ventures, and Robert Wood Johnson Foundation.
All photos from Getty Images.
15
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