By Bert Black and Toni Halleen
Federal and state laws require “equal pay for equal work.” This protection doesn’t do much good, however, if an employee can’t find out what co-workers are making, and that often can become a barrier to bringing a claim in court.
IGNORANCE IS NOT BLISS WHEN IT COMES TO EQUAL PAY
This problem was starkly revealed in the case of Lily Ledbetter. She was the only female supervisor at a Goodyear Tire & Rubber plant in Alabama. For years she was paid far less than male co-workers who held the same position. Even though she had more seniority than many of the men, she earned only about $3,700 a month compared to almost $4,300 for the next lowest paid supervisor. She found out about the pay discrimination only after she retired. The U.S. Supreme Court held that she had no claim because years before, when the pay disparity first occurred, she had not filed a complaint within 180 days. She could not even recover for the recent short paychecks she’d received just before retiring. The Court acknowledged there was no way she could have known earlier, but that, unfortunately, was just tough luck.
INQUIRING MINDS ARE PROTECTED BY LAW
So what is an employee to do if company policies prohibit discussions about compensation? Fortunately, the Ledbetter case was partially reversed when Congress passed a law in 2009 that allows people like Ms. Ledbetter to at least recover for the last two years of short pay. However, the larger issue remains: how does an employee find out about it if she or he can’t discuss compensation with co-workers? The answer is a bit surprising. Fact is that for the last 80 years it’s actually been illegal to forbid such discussions. The National Labor Relations Act, passed in 1935, gives most employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
BE INFORMED TO ENSURE EQUAL PAY FOR EQUAL WORK
Why, then, do many employers continue to impose pay non-disclosure and secrecy policies? Probably because the law is not well understood, and because the penalties aren’t very severe. To address the issue, President Obama last year signed an Executive Order making it illegal for federal contractors to retaliate against employees who share information about their salaries or other compensation. Under the Order, penalties may be more severe, including perhaps loss of the contract. That’s all well and good if you’re working for a government contractor but for the rest of the workforce, little has changed. That’s why it’s extremely important to consult with knowledgeable legal counsel if you learn about or suspect gender or racially motivated unfair pay practices in your workplace.
About Bert Black
Bert Black, author of a new novel and Schaefer Halleen attorney, has been practicing law for over thirty years. His current cases are mostly in the areas of condominium development, employment, and consumer protection litigation. Before attending law school at Yale he worked for several years as an engineer, and over the course of his career many of his cases have involved complex scientific, technical, statistical, and financial issues. He has represented both plaintiffs and defendants in matters involving environmental pollution, pharmaceutical products liability, construction defects, real estate transactions, securities fraud, and bankruptcy. Read Bert’s Full Biography
About Toni Halleen
Engaging others is what inspires Toni Halleen. With over 25 years of employment law experience, Toni segued her impressive corporate career into the management and administration of the highly regarded law firm of Schaefer Halleen. Prior to becoming an owner of Schaefer Halleen, Toni spent 11 years at The General Counsel, Ltd. (The “GCL”). Before that, Toni spent five years as an in-house employment lawyer for a leading telecommunications firm, and an additional eight years practicing employment law at one of the Twin Cities’ top law firms. Read Toni’s Full Biography
