Q&A: Don’t share wage data with competitors
Wage and Hour
Question: Our maintenance people keep getting picked off by other local companies. I can’t decide whether to write them a nastygram to stop poaching our employees, or try to find out what they’re paying so we can set our wages higher. Any thoughts?
Answer: As frustrating as this is, both of those approaches could result in antitrust liability for your organization. You can tackle this problem in other ways. One strategy is to conduct exit interviews to try to get employees’ candid reasons for why they’re leaving. Ask open-ended questions. Their reasons might be related to pay, but could also be tied to other issues: an abrasive supervisor, unfriendly coworkers, long hours, an undesirable shift schedule, a desire for a shorter commute, or something else entirely? By the time they share this information, it may be too late to change their mind, but it can help you address problems before they drive off other employees. It can also offer an avenue to leave the door open for their return, if their next job doesn’t work out.
Another strategy for getting to the bottom of this issue is to gauge the competitiveness of your pay ranges, but be careful. You should never directly ask company representatives for this information, nor view non-public reports that show what individual companies are paying. Nearly three years ago, we reported on a class action complaint alleging that executives in the poultry industry had conspired to keep workers’ wages low by discussing wages at in-person meetings, participating in detailed monthly wage surveys, and discussing plans for future pay changes. The case is still being litigated, with the latest development being a proposed consent decree that would result in three companies paying restitution amounts ranging from $15 million to $38.3 million.
There are much safer (and compliant) ways to obtain wage data. U.S. Department of Justice (DOJ) guidelines say that survey data should be at least three months old before it is reported. Also, a third party should conduct the survey and keep individual response confidential. The DOJ has specific standards for not reporting data if there are so few participants that it would be easy to map responses to specific companies. Vigilant conducts a confidential blind wage survey each year that complies with the DOJ’s guidelines. The survey results are free to participants and available for $300 to non-participating Vigilant member companies. Another useful (and free) resource is the Vigilant member website’s Compensation Data web page, which contains links to government wage data. Publicly available information, such as job postings that list starting pay, are also fair game.
Employers with job openings in Washington state will soon have even more information at their fingertips. As we previously reported, employers with 15 or more employees will have to include the wage scale or salary range in each Washington job posting, along with a general description of all benefits and other compensation for the job, effective January 1, 2023. For help with implementing any of these strategies, contact your Vigilant Law Group employment attorney.