How Do I Prove I'm Paid Less Than My Male Co-Workers?
A recent article in Newsweek discussed the continuing pay gap between men and women, and suggested some reasons why women still make less than their male colleagues. Another recent story discussed how female doctors are paid less than male doctors. I'm not going to argue here whether or not the pay gap is real. Instead, I want to discuss that, at least in some workplaces, women are paid less than men for the same work. The Newsweek article contained a disturbing statement: "In many workplaces, discussing pay is frowned upon; in some, it's a dismissible offense. So, like Ledbetter, women often don't know when they're getting paid less than men." Lilly Ledbetter, the pay discrimination victim who lost her case and inspired a law, found out about how much less she made than her male colleagues when she got an anonymous note.
If you aren't lucky enough to get a note from someone brave enough to tell you that you're a victim of discrimination, how do you go about proving pay discrimination? Here are eight ways that you can find out if your male colleagues make more than you for the same work:
The reason the statement in the Newsweek article disturbed me is that non-supervisory employees in private workplaces have the absolute right to discuss working conditions, including pay. That right is in the National Labor Relations Act, which applies to most non-government workplaces. If you're a supervisor, you may be out of luck on this. The NLRA doesn't apply to supervisors. If the company has an illegal policy saying that you aren't allowed to discuss pay with co-workers, you can report them to the NLRB. The better your relationships at work, the more likely someone will simply tell you what you want to know.
2. Ask your senator to support the paycheck fairness act.
An important bill that would have assisted women in proving pay disparity just failed in the Senate. Among other things, the Paycheck Fairness Act would have prohibited employers from retaliating against even supervisory employees who discuss or disclose wages of co-workers. It also would have made it easier for employees to prove pay disparity.
3. Ask former colleagues.
If your colleagues can't or won't discuss their wages, maybe a former colleague will. If you have a good relationship with a male former co-worker, ask them how much they made. If they made more than you for the same work, it might be another way to prove pay discrimination.
4. Look at public records.
If the company has to file documents with the SEC or other government agencies, those records may include employment agreements or other pay records.
5. Look at unemployment filings.
If your state law says that a company's unemployment tax returns are public record, ask to see your company's records. These records will list every single employee and what they were paid. Ask your boss or HR: Sometimes they'll actually tell you what your colleagues make. If you think they'll retaliate, don't take this step. I'd only recommend this if you have a good relationship with someone in management or HR.
6. Look at severance agreements.
Severance agreements are usually based on a certain number of weeks or months of pay. Some of them become public record in SEC filings. Sometimes former colleagues are willing to show them to you. Depending on your job, they might even come across your desk. Occasionally, the agreements pop up online. If you Google "severance agreement" and your company name, you might be surprised what pops up.
7. Look at employee lawsuits.
If a former or current colleague sued the company, their employment or severance agreement might be in court records. Many courts have their records online in a searchable form. Some may still require you to go to the courthouse. Your co-worker's salary might be disclosed in answers to interrogatories or other documents in the court file. If you're really lucky, the court records might also disclose salaries of other employees.
8. File with the EEOC.
If you're being subjected to other types of sex discrimination and just aren't sure about the pay, file with the EEOC on the other discrimination and say you suspect that you're also being paid differently. The EEOC will likely ask the company for those pay records as part of its investigation. Unfortunately, you won't get access to your file until the end of the investigation, but at least you'll eventually know the truth.
While it's tough to find out what colleagues are making, it's not impossible if you're persistent and patient.
Once I think I have proof that I'm being paid unfairly, what can I do?
1. File a formal complaint of sex discrimination with HR.
Put your complaint in writing and tell them that you believe you are being paid less than similarly-situated male colleagues. Hopefully they will investigate. If they can confirm the discrimination, they may resolve the matter for you. If you file a discrimination complaint, you are (mostly) protected from retaliation if you had a good faith belief that you were a discrimination victim.
2. File with the EEOC or your state agency.
You don't have to go to HR first in a pay disparity case, before filing with the EEOC or your state agency that handles sex discrimination claims. If you fear retaliation, filing with the EEOC is absolutely protected from retaliation.
3. Contact an employment lawyer:
When in doubt, or if you want legal representation for your claim, talk to an employee-side employment lawyer in your state to find out if you have a case.
Do you have a problem with your employer? Do you have a question about your legal rights in the workplace? Email Donna Ballman, care of AOL Jobs. Make sure to include a description of your problem, as full as you feel comfortable. Keep in mind that anything you include in your email could be reprinted and responded to publicly. It will not be confidential. Govern yourself accordingly.
Also note: Writing to Ballman at AOL does not create an attorney-client relationship. Ballman can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state.
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Donna Ballman’s book, Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards, was the Winner of the Law Category of the 2012 USA Best Books Awards and is currently available for purchase.Donna is the award-winning author of The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers, a book geared toward informing novelists and screenwriters about the ins and outs of the civil justice system. She’s been representing executives, physicians and employees in Florida, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and other employment law issues since 1986. Her blog on employee-side employment law issues, Screw You Guys, I’m Going Home, was named one of the 2011, 2012 and 2013 ABA Blawg 100 best legal blogs, Paralegal 411’s Top 25 Labor and Employment law Blogs of 2013 and the 2011 Lexis/Nexis Top 25 Labor and Employment Law Blogs.
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