Pub. 5 2016 Issue 3

April/May 2016 15 l e a d i n g a d v o c a t e f o r t h e b a n k i n g i n d u s t r y i n k a n s a s that he or she accessed or received as an essential part of his or her job function unless it falls into the exception below. “essential job function” is defined as a part of an employee’s or applicant’s position if: (1) the access to compensation information is necessary in order to perform that function or other routinely assigned business task; or (2) the function or duties of the position include protecting and maintaining the privacy of employee personnel records. Positions where access to compensation information is an “essential job function” generally include positions such as human resources officers, information technology staff, and possibly other jobs where access to compensation information is part of the job duties However, there is an exception in cases where the employee’s disclosure was “in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the contractor, or is consistent with the contractor’s legal duty to furnish information.” This could involve, for example, the employee discussing information relating to their own possible claim of compensation discrimination, or reporting possible disparities regarding the compensation of other employees internally to a management official for the contractor or through the contractor’s internal complaint process. For example, an employee in human resources who has access to sensitive compensation information of others within an organization may have a duty to protect this type of information from disclosure or discussion if such information was obtained through the performance of his or her job except under certain conditions highlighted above. Notice and Posters The final rule requires dissemination of the following Pay Transparency Policy Statement prescribed by OFCCP, which may not be modified. It must be: 1. included in existing employee handbooks or manuals and the contractor’s current regular means of communicating with employees and applicants; and 2. posted either electronically or conspicuously where applicants and employees can see it at work sites. PAY TRANSPARENCY POLICY STATEMENT The contractor will not discharge or in any other manner discriminate against employees or applicants because they have inquired about, discussed, or disclosed their own pay or the pay of another employee or applicant. However, employees who have access to the compensation information of other employees or applicants as a part of their essential job functions cannot disclose the pay of other employees or applicants to individuals who do not otherwise have access to compensation information, unless the disclosure is (a) in response to a formal complaint or charge, (b) in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or (c) consistent with the contractor’s legal duty to furnish information. Future Federal Labor Law posters will have this statement included. While there are no specific requirements to provide training regarding the new pay transparency requirements, supervisors and managers should be informed of changes to policy and these additional protections for employees and applicants. Revisions to the Equal Opportunity Clause Specifically, the Equal Opportunity Clause is revised to include the following language: “The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee’s essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the bank, or is consistent with the contractor’s legal duty to furnish information.” Bottom Line • Review policies, procedures, practices, and workplace rules for prohibitions against inquiries about, discussion of, or disclosure of the amount and type of compensation. • Ensure any policy prohibiting disclosure of proprietary business information or trade secrets is narrowly tailored and does not include compensation information. • Examine the bank’s methods of storing and protecting compensation information, including how the bank disposes of hard copy documents or electronic files. Employees who find unsecured compensation information, for example in the trash, may be protected from adverse action if they disclose it. • Contractors are not required to make any additional disclosures about pay including upon request by an employee. • There are no changes to the requirements for job postings, solicitations, or advertisements. • There is no requirement to modify or add training or meetings regarding these new requirements. However, a suggested best practice is to incorporate training about this Final rule and its requirements into existing training.