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How Much Do You Make? – New OFCCP Regulations Protect Employee And Job Applicant Discussions on Compensation

Happy New Year from your friends at the OFCCP.  This week brings the enforcement of requirements stated under Executive Order 13665, which prohibits federal contractors from discriminating or otherwise conducting adverse personnel actions against employees or job applicants for compensation inquiries, discussions or disclosures.  The protections of the new regulations extend to discussions held by an employee regarding their own or another employee’s compensation.  Therefore, covered employers with policies that prohibit or limit employees or applicants from communications about their compensation will need to amend such policies immediately.

The scope of compensation protected under the regulations is far and wide.  It includes salary, bonuses, commissions, vacation and holiday pay, insurance and other benefits, stock options and awards and retirement terms.  There are limited defenses provided to covered employers with respect to employees who obtained compensation information by virtue of it relating to their essential job duties or if the adverse action taken by the employer relates to a wholly separate and uniformly applied workplace rule.  However, these defenses should be discussed with counsel to determine if appropriate on a facts and circumstances basis.

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