Why is the salary a secret

Labor law column: Is it forbidden to talk about salary?

Can I talk to my colleagues about my salary or can my employer forbid me to do so? Asks Thomas Hell.

Dear Mr. Hell,

As an employee, you are initially subject to a general duty of confidentiality and confidentiality, which can also be extended in your employment contract. This means that you are not allowed to pass on any trade or business secrets to third parties. If you do not adhere to this, your employer can insist on an omission and, in the event of specific damage, also claim damages. You must also expect personal consequences such as a warning or even termination without notice.

Wage and salary information can also be affected by this general duty of confidentiality - but only if the salary data is relevant to competition. This is the case when competitors gain a competitive advantage from this information. This is how the judges of the Federal Labor Court ruled in principle (Az .: 6 ABR 46/84).

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Specifically, this case was about the fact that the employer wanted to prohibit its works council and individual works council members from publishing wage and salary data. As an employee representative, the works council has access to wage and salary data. And in this specific case, this data was also part of the business calculation of sales and profit opportunities. Thus, the payrolls were also regarded as trade secrets that competitors in the industry should of course not learn.

As a rule, normal employees are allowed to compare their salaries with colleagues

However, this by no means means that every employee must keep quiet about his or her salary. Whether you are obliged to maintain confidentiality vis-à-vis your colleagues depends on the one hand on whether this affects your competitiveness. Your employer would then have to prove that. On the other hand, it would have to be checked whether an extension of the general confidentiality by a so-called confidentiality clause was effectively agreed. Such a clause can also extend to information regarding the individual employment relationship between employer and employee and sometimes extend to the agreed salary.

However, both prerequisites only occur extremely rarely and especially among employees in high management positions. Because it is very difficult for the employer to effectively enforce such clauses. Because if employment contracts contain such a confidentiality clause, they are very often ineffective. Finally, employees must not be unreasonably disadvantaged on the basis of Section 307 (1) BGB. However, this is usually the case when employees are forced to maintain such secrecy. Because if they are forbidden to talk to colleagues about their salary, they cannot find out whether the company complies with the principle of equal treatment under labor law or not.

At the same time, such a duty of confidentiality also violates the Basic Law - namely Article 9 (3) of the Basic Law. At least that's how the judges of the Mecklenburg-Western Pomerania Regional Labor Court see it (Az .: 2 Sa 237/09). They considered a clause to be ineffective, according to which the employee was obliged to treat the amount of the remuneration confidentially and to maintain silence about it towards other company employees. However, the employee had compared his salary with a colleague - and promptly received a warning from the boss. Wrongly so, so the state labor judges. The warning had to be removed from the personnel file because the entire contractual clause was ineffective.

Yours Ulf Weigelt