Remuneration confidentiality clause - who does it apply to?
Many employers, referring to the principles of personal data protection, include in the employment contract the confidentiality clause of employees' remuneration. As a result, it is believed that an employee cannot talk to his colleagues about the amount of his earnings. The secrecy of remuneration is indeed an instrument of personal data protection, but it applies to employers and in the event of failure to observe it, they may be held liable under civil and even criminal liability. So what exactly does a salary clause mean?
The employer cannot disclose the amount of the employee's earnings
Pursuant to the provisions of the Labor Code, the employer has an absolute order to respect the dignity and other personal rights of the employee. In the event of disclosure of information on the amount of remuneration of an employed person, he or she commits a violation of personal rights, and may therefore be held liable for damages under the provisions of the Civil Code.
In addition, in accordance with the understanding of the Act on the Protection of Personal Data, the employer is the administrator of personal data. In connection with the above, disclosing the employee's personal data (including information on the amount of earnings), is exposed to criminal liability. Whoever, by administering a collection of personal data, makes them available, shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to two years.
Of course, in certain cases, the employer is even obliged to disclose personal data and the amount of remuneration of his employees. This is the case, for example, when paying contributions to the Social Insurance Institution for an employee.
The employee has the right to know ...
Pursuant to the Labor Code (hereinafter: the Labor Code), employees have equal rights due to the equal performance of the same duties, and the primary duty of the employer is to counteract discrimination. It is undisputed that it would be discriminatory in employment to award different remuneration to employees despite fulfilling the same duties.
In connection with the above, the employee has the right to inform his colleagues about the amount of his earnings. Persons employed in a given workplace may also ask the employer about remuneration for similar positions in the company, but they cannot ask about the salary of a specific person. Such a position was confirmed by the Supreme Court in a resolution adopted on July 16, 1993 (I PZP 28/93, OSNC 1994/1/2), in which it held that disclosure by the employer of the amount of his remuneration for work without the consent of the employee may constitute a violation of personal interests, for which are threatened by the above-mentioned consequences. Start a free 30-day trial period with no strings attached!
The exchange of information between employees, including those related to salaries, makes it possible to determine whether the employer applies the principle of equal treatment of employees.It is a mechanism that prevents any discrimination, including wage discrimination.
Moreover, the employer cannot prohibit the employee from sharing his earnings data with his colleagues, e.g. by introducing a salary confidentiality clause. Nor can it in any way reprimand or punish him in such a situation. According to the Code of all provisions of employment contracts less favorable than the provisions of the code are invalid. Due to the fact that in the aforementioned Act we do not find a provision prohibiting employees from disclosing the amount of their remuneration, and such a rule would limit them in their personal rights, contractual provisions establishing the secrecy of remuneration in relation to them are invalid.
… But knowledge cannot be passed on to competitors
On the other hand, the employer has the right to punish the employee if he provides data about his earnings to a person outside the workplace. A boss who does such an act may face a variety of consequences, including dismissal. One of the employee obligations contained in the Labor Code there is concern for the good of the company, and the disclosure of data on remuneration in a given workplace to competitors is certainly an act to its disadvantage.
Employee unequal to employee - remuneration confidentiality clause
Employers explain that the confidentiality clause of remuneration is introduced because the effectiveness of work of people employed in similar positions may vary - one employee may demonstrate broad competences and perform their tasks perfectly, while another - fail to meet deadlines and require constant reminders and corrections. Why should each of them be paid the same?
The employers' intentions are understandable, but in this case one should first of all bear in mind the provisions of the Labor Code. and the welfare of employees. Information on the earnings of other people employed in a given workplace is the starting point for negotiating the amount of remuneration.
The employer can also benefit from the disclosure of earnings in the company - above all, it avoids accusations of favoritism, and clear bonus rules will certainly encourage employees to work more efficiently.