Can employees talk about the salary?
Can the employee talk about wages?
Curiosity or the prevention of injustices? Employees want to compare their wages with those of colleagues and know the wages of other employees in the company. It is necessary to communicate the wages. But is this even permissible? Are employees allowed to talk about wages? And can the employer forbid people to talk about wages? Such clauses are widespread in employment contracts or regulations.
Employee's duty of loyalty and confidentiality?
The employee is subject to the general duty of loyalty (Art. 321a Paragraph 1 OR - “The employee must carefully carry out the work assigned to him and safeguard the legitimate interests of the employer in good faith”). The following applies as a fiduciary duty: An employee is obliged to protect his or her interests vis-à-vis the employer. As a matter of principle, he must refrain from anything that could harm the employer. He is committed to solidarity and loyalty. In general, he has to refrain from improper and dutiful or illegal behavior towards the employer, work colleagues, superiors, customers and suppliers. The duty of loyalty is therefore primarily an obligation to cease and desist - see also the article on Loyalty Duty.
According to para. 4 of the same article of the law, the employee is then subject to a duty of confidentiality (as a special duty of loyalty): "The employee may not use facts to be kept secret, such as manufacturing and business secrets, of which he becomes aware in the employer's service, during the employment relationship or communicate to others; even after its termination, he remains obliged to secrecy, insofar as it is necessary to safeguard the legitimate interests of the employer. "
According to the Federal Supreme Court, wages are not considered business secrets, which is why the employee is allowed to talk about wages.
In certain constellations, wages can represent business secrets, namely when the wages allow conclusions to be drawn about business secrets, such as price calculations or sales. But that should be more theoretical and rarely apply in practice.
Employer's duty of care
For his part, the employer is subject to a duty of care. In the employment relationship, the employer must respect and protect the personality of the employee, take due account of his health and ensure that morality is observed. This regulation may not be deviated from in the employment contract at the expense of the employee.
A contractual regulation that prohibits talking about wages is seen as a violation of the employer's duty of care (and in some cases even as a personal injury) and is therefore irrelevant. If an employee, despite the contractual prohibition, violates the regulation that he may not disclose his wages, this does not constitute a breach of contractual obligations or the employee's duty of loyalty.
Wage claims according to the Equal Opportunities Act
The Equal Opportunities Act provides that in the event of wage discrimination, the wage difference can be claimed (subject to the statute of limitations). If bans on talking about wages were permissible, such discrimination could only very rarely be proven. If “wage discussion bans” were permissible, this would contradict the spirit and purpose of the Equal Opportunities Act. The equal pay analysis will probably provide additional remedy here.
If an employee is (properly) dismissed because he has talked to colleagues about the wages, this dismissal is likely to turn out to be improper and the employee could claim compensation.
In the event of termination without notice, this is likely to be unjustified.
For further details, see in particular the articles relating to:
Author: Nicolas Facincani
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