KNOW YOUR RIGHTS 

Pay Transparency 

OFCCP Makes it Safe for People to Ask 

About, Discuss, and Disclose Their Pay 

1. 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 fring 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. 

2. 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. 

3. 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 endof-the-year bonuses would be considered a 

violation, as it prohibits employees from discussing 

their compensation. 

4. What is considered pay? 

Pay generally refers to any payments 

made to an employee, or on behalf of an 

employee, or ofered to an applicant. 

This includes but is not limited to salary, 

wages, overtime pay, shift diferentials, 

bonuses, commissions, vacation and 

holiday pay, allowances, insurance and 

other benefts, stock options and awards, 

proft sharing, and retirement. 

5. 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. 

6. 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 ofered 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 pay 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 
 

 

7. 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 

ofcial 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. 

8. 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. 

9. 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. 

10. 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 frms, meat 

packing plants, retail stores, manufacturing plants, 

accounting frms, and construction companies, 

among others. 

Filing a Complaint 

11. 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 fle a complaint with OFCCP. You do not 

need to know with certainty that your employer 

is a federal contractor or subcontractor to fle a 

complaint. 

12. How do I fle a complaint with OFCCP? 

You may fle a discrimination complaint by: 

• Completing and submitting a form online through 

OFCCP’s Web site; 

• Completing a form in person at an OFCCP ofce; or 

• Mailing, e-mailing or faxing a completed form to 

the OFCCP regional ofce 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 ofces. To fnd the ofce 

nearest you, visit the online listing of OFCCP ofces 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 fled within 180 days from the date of the 

alleged discrimination, unless the time for fling 

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. 

13. Can my employer fre, demote, or treat 

me less favorably because I fled a 

complaint? 

No. It is illegal for your employer to retaliate 

against you for fling a complaint or participating 

in an investigation. OFCCP’s regulations protect 

you from harassment, intimidation, threats, 

coercion, or retaliation for asserting your rights. 

14. Can I fle a complaint with OFCCP and 

the Equal Employment Opportunity 

Commission (EEOC)? 

Yes, if you fle 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 fled against 

federal contractors that allege discrimination 

based on discussing, disclosing, or inquiring 

about pay. OFCCP also generally keeps 

complaints fled against federal contractors 

where there appears to be a pattern of 

discrimination that afects 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. 

15. What will happen if there is a fnding 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 fnds 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 modifcations 

cancelled. 

For more information: 

the u.s. department of labor 

Ofce 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.