Equal Pay for Equal Work

Men and women doing the same work are entitled to earn the same pay.

A federal law, the Equal Pay Act (EPA, 29 U.S.C. §206), requires employers to pay all employees equally for equal work, regardless of their gender. It was passed in 1963 as an amendment to the Fair Labor Standards Act.

Although the Act protects both women and men from gender discrimination in pay rates, it was passed to help rectify the wage disparity experienced by women workers because of sex discrimination in employment. And in practice, this law has almost always been applied to situations where women are paid less than men for doing similar jobs.

To successfully raise a claim under the Equal Pay Act, you must show that two employees, one male and one female:

• are working in the same place
• are doing equal work, and
• are receiving unequal pay.

However, if the employer can show that the wage disparity has a legitimate basis -- for example, that the higher earner has more seniority or more experience -- the claim will be defeated.

Who Is Covered

Virtually all workers are covered by the Equal Pay Act, which regulates the conduct of the state, local and federal governments and most private employers.

Determining Equal Work

Jobs do not have to be identical for the courts to consider them equal. If two employees are actually doing the same work, it doesn't matter if their titles or job descriptions differ. What counts is the duties they actually perform. In general, the courts have ruled that two jobs are equal for the purposes of the Equal Pay Act when both require equal levels of skill, effort and responsibility and are performed under similar conditions.

There is a lot of room for interpretation here, of course. But the general rule is that if there are only small differences in the skill, effort or responsibility required, two jobs should still be regarded as equal. The biggest problems arise where two jobs are basically the same, but one includes a few extra duties. It is perfectly legal to award higher pay for the extra duties, but some courts have looked askance at workplaces in which the higher-paying jobs with extra duties are consistently reserved for workers of one gender.

The EPA requires more than equal wages. If employees do equal work, they are also entitled to equal fringe benefits, such as insurance coverage, pensions and the use of company equipment. And the EPA applies to forms of compensation other than wages, including vacation time, profit sharing and bonuses.

The EPA and Title VII

The Equal Pay Act was passed one year before Title VII of the Civil Rights Act. Both laws prohibit wage discrimination based on gender, but Title VII goes beyond ensuring equal pay for equal work, as it bars discrimination in all aspects of employment, including hiring, firing and promotions. In addition, Title VII broadly prohibits other forms of discrimination, including that based on race, color, religion and national origin.

In cases where both Title VII and the Equal Pay Act apply, the Equal Pay Act offers two potential advantages:

• You can file a lawsuit under the Equal Pay Act without first filing a complaint with the Equal Employment Opporunity Commission (EEOC).
• Unlike Title VII, the Equal Pay Act does not require proof that the employer acted intentionally when discriminating. That can make an Equal Pay Act case easier to win in court.

However, Title VII boasts one major advantage: You can win more money in a lawsuit under Title VII. Under Title VII, you can ask the judge or jury not only for the wages you lost, but also for compensation for your pain and suffering (compensatory damages). The Equal Pay Act does not provide these remedies -- although in some cases you can ask for double the amount of wages you lost.

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Electronic Monitoring

Privacy laws pertaining to telephones, voicemail, email and Internet use.

Advances in technology now make it possible for employers to keep track of virtually all workplace communications by any employee -- on the phone and in cyberspace. And many employers take advantage of these tracking devices: A recent survey of more than 700 companies by the Society for Human Resource Management (SHRM) found that almost three quarters of those companies monitor their workers' use of the Internet and check employee email. According to a study by the American Management Association, businesses offering financial services -- such as banks, brokerage houses, insurance firms and real estate companies -- are most likely to monitor their workers' communications.

Whether all this monitoring is legal depends on what type of communication the employer is trying to eavesdrop on, how reasonable it is for the employee to expect the communication to be private and the employer's reason for listening in.
Phone Calls

Employers may monitor business phone calls -- that is, employee conversations with clients or customers -- for quality control. Some states have laws that require employers to inform the parties to the call, either by announcement or by signal (such as a beeping noise during the call), that someone is listening in. Federal law, however, allows employers to monitor these business calls unannounced.

An exception is made for personal calls. Under federal law, once an employer knows that a call is personal, the employer must immediately stop monitoring the call.
Voicemail Messages

The law hasn't given a firm answer to whether employers may listen to employee voicemail. Most likely, employers have the right to listen to employee voicemail messages -- especially if the employer has a work-related reason.

If your employer has ever led you to believe that voicemails are private, however, then you might have a legitimate complaint if the employer listens to your voicemail.
Email Messages

Employers are generally free to rummage through employees' email messages -- as long as they have a valid business purpose for doing so. If the company takes steps to protect the privacy of email (by providing a system that allows messages to be designated "confidential" or creating private passwords known only to the employee, for example) -- or if a company states in its policies that email is private -- a worker might have a stronger expectation of privacy in the messages covered by these rules and therefore stronger legal protection if the employer reads private emails. But most courts to consider the issue have decided in favor of employers, particularly if the company has a policy that restricts computer use to official business only.

Legality aside, the truth is that many employers now routinely monitor email their employees send and receive. Some email systems copy all messages that pass through them; others create backup copies of new messages as they arrive. Workers who logically assume their messages are gone for good when they delete them are very often wrong. Treat your email system at work as you should your business phone. Strictly limit your communications with family and friends. And do not send a message if you would be uncomfortable having a co-worker or your employer read it.
Internet Use

Employers are within their legal rights to keep track of the Internet sites visited by their workers. Some employers install devices that block access to certain sites (for example, those with pornographic images) or limit the time workers may spend on sites that are not specified as work related.



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Don't Embellish or Lie During the Application Process

It may help you get the job, but you may pay for it later.

Many applicants try to increase their chances of landing a job by embellishing -- or downright lying about -- their experience or credentials. Although this may help them get the job, it is a risky strategy for a number of reasons.

Most obviously, if the employer ever finds out about the falsehoods, the employer can fire the offending individual immediately. And that person might have a more difficult time landing the next job with the black mark of a termination on his or her record.

And there is an additional, more sinister consequence: If the employer ever treats the individual unlawfully -- for example, terminates the individual's employment because the individual is a woman or is Latino -- the employer can escape liability by pointing to the lies and embellishments and saying the individual never should have been hired in the first place. Courts agree, reasoning that employees who lied to get a job cannot later come to court and claim the employer did them wrong.

The employer tactic is called the After-Acquired Evidence Theory. Conduct that has been held sufficiently serious to be admitted as after-acquired evidence has included:

* falsifying company records
* failing to list a previous employer on a resumé
* failing to admit being terminated for cheating on timecards
* failing to reveal a prior conviction for a felony
* lying about education and experience on a job application
* fabricating a college degree during an interview, and
* removing and copying the company's confidential financial statements.

If you did lie on your job application or resumé, however, you may not be completely out of luck. Your employer can use the misinformation as a defense only if it was truly related to your job duties or performance. The employer must be able to show that you would have been fired -- or not hired in the first place -- if he or she had known the truth. Proving this type of second-guessing may not be easy.



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Discrimination Based on Sexual Orientation

Measures are emerging to protect gay and lesbian workers from discrimination in the workplace.

Although women, minorities, people older than 40 and people with disabilities now enjoy an umbrella of state and federal protections from discrimination in the workplace, gays and lesbians have, for the most part, been left out in the rain, at least at the national level. There is no federal law that specifically outlaws workplace discrimination on the basis of sexual orientation in the private sector -- although federal government workers are currently protected from such discrimination.

At the state level, however, there is more cause for hope. Thirteen states have laws prohibiting sexual orientation discrimination in both private and public jobs: California, Connecticut, Hawaii, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New York, Rhode Island, Vermont and Wisconsin. The District of Columbia also prohibits sexual orientation discrimination in both the public and private sectors. In addition, eight states have laws prohibiting sexual orientation discrimination in public workplaces only: Colorado, Delaware, Illinois, Indiana, Montana, New Mexico, Pennsylvania and Washington.

If you are gay or lesbian and your state does not have a law that protects you from workplace discrimination, you may still be protected by city and county ordinances. There are at least 124 cities and counties that prohibit discrimination in the workplace on the basis of sexual orientation -- from Albany, NY, to Ypsilanti, MI. In addition, some enlightened companies have adopted their own policies prohibiting such discrimination.

If there are no specific laws protecting you from sexual orientation discrimination, you may still have other causes of action. Depending on the exact nature of the discrimination, you may be able to sue your employer -- or your co-workers -- on a number of legal theories that apply to everyone, including gay men and lesbians:

* intentional or negligent infliction of emotional distress
* harassment
* assault
* battery
* invasion of privacy
* defamation
* interference with an employment contract, and
* wrongful termination.



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Asserting Your Rights in the Workplace

Learn how to handle a conflict with your employer to protect your rights and get results.

Depending on the size of your employer, the state in which you live and your profession, you may be entitled to certain legal protections in the workplace, including:

* the right not to be discriminated against on the basis of your race, national origin, skin color, gender, pregnancy, religious beliefs, disability or age (and in some places, marital status or sexual orientation)
* the right to a workplace free of harassment
* the right to be paid at least the minimum wage, and an overtime premium for any hours worked over forty in one week (or, in some places, over eight hours in one day)
* the right to a safe workplace
* the right to take leave to care for your own or a family member's serious illness, or following the birth or adoption of a child, and
* the right to some privacy in personal matters.

1. Talk to Your Employer
The first thing to do is talk to your employer. An intelligent discussion can resolve most wrongs, or at least get your differences out on the table. Most companies want to stay within the law and avoid legal tangles. Unless you work for a truly uncaring and antagonistic employer, chances are that your problem is the result of an oversight, a misunderstanding or a lack of legal knowledge.

Here are a few tips on how to present your concerns to your employer:

* Know your rights. The more you know about your legal rights in the workplace, the more confident you will be in presenting your problem.
* Stick to the facts. Before meeting with your employer, write a brief summary of what has gone wrong and your recommendation for resolving the problem. It might help to have someone more objective, such as a friend or family member, review the facts and brainstorm with you about possible resolutions. Make sure not to leave any important facts out.
* Don't be overly emotional. Dealing with a workplace problem can be stressful, but unfounded accusations and emotional outbursts won't help you get your point across. Practice your presentation ahead of time to make sure you can remain professional and calm.
* Decide the next steps. Before finishing your discussion with your employer, come to some agreement with your boss as to what will happen next. Will the company investigate the problem? Will your boss talk to your co-workers or supervisor? Will evaluations, job responsibilities or reporting relationships be changed?

2. Follow Up With Your Employer
Once you have spoken to your employer, make sure to follow up on the meeting. If your employer promised to investigate the matter or talk to other employees, check back to find out the status of those actions. After a few weeks have passed, schedule another meeting with your employer to discuss what progress has been made in resolving your problem.
3. Document the Problem
If talking things over with your employer does not resolve the dispute, or if your employment situation seems to be headed downhill, protect yourself by gathering documentation. Take notes of key conversations and events, including the time, date and names of others who were present. Gather documents that might support your side of the story, such as company policies, offer letters, performance reviews, memoranda, correspondence or employee handbooks.

Be careful, however, to collect only those documents you have legitimate access to. Taking or copying confidential documents -- even if they are related to your dispute -- could get you fired and could compromise your legal claims.

If your co-workers saw or heard any of the incidents that contributed to the problem (such as a verbal performance review, a harassing comment or a search of your workspace), ask them to write down what they saw and heard in signed, dated statements.
4. Don't Miss Legal Deadlines
If your employer doesn't seem to be taking your complaint seriously, or you are demoted or fired, you will have to consider whether to take legal action. The law sets deadlines (often called "statutes of limitations") for filing certain types of claims or lawsuits, ranging from several weeks to several years. If one of these deadlines applies to your case, you will have to think sooner rather than later about whether to go to court.



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Arbitration Agreements With Your Employer

Employers are increasingly asking workers to give up their rights, so watch what you sign.

In a growing trend, employees are giving up their right to sue their employers in court over issues such as wrongful termination, breach of contract and discrimination. How are they doing this? By signing documents called arbitration agreements. When employees sign these agreements, they are promising to pursue any legal claims against their employer through arbitration, rather than through a lawsuit. That might sound simple enough, but if you look closer, you’ll see that agreeing to arbitrate means giving up a lot -- it could even mean the difference between winning or losing your case.
The Disadvantages of Arbitration

You may wonder why you should care where your claims get heard as long as they are heard somewhere, be it in arbitration or a court of law. An arbitration differs from a court case in several ways, and many of these differences tend to work against employees.

Most important, an arbitration is heard by a private citizen -- often a retired judge -- who is paid by one or both sides to listen to evidence and witnesses. That means you won’t have a jury hear your story -- and juries are usually more sympathetic to employees than are arbitrators.

Also, the arbitration process limits the amount of information each side can get from the other. In employment cases, this generally hurts the employee, because the employer is usually the one in possession of all the documents and information relating to the employee’s case.

Finally, an arbitration usually cannot be appealed, making arbitration awards more final than court verdicts. This means that if the arbitrator makes a decision that you think is unfair or wrong, you won’t get a second chance before an appellate court -- a second chance that you might have gotten had you gone to a court trial.
The Advantages of Arbitration

An arbitration does have some advantages over a court trial. Arbitrations are less formal than court trials, and this informality can make the process easier for all involved, especially employees who are not used to litigation. Also, arbitrations tend to be resolved more quickly than court cases.
Read All Documents Carefully

It may seem ridiculous, but employees often sign arbitration agreements unintentionally. How can this happen? Some employers bog down new employees with tons of paperwork to fill out on their first day, and some employees, in turn, sign documents without reading them.

Although most employers are straightforward and present the arbitration agreement to employees openly in a separate contract, others bury arbitration agreements in other documents, such as an employment contract, a hiring letter or an employee handbook. When you sign a contract, letter, handbook acknowledgment form or any other document from your employer, you agree to all the terms of the document -- even the ones that you may not have read. This is a particular problem with handbooks, which might be hundreds of pages long.

How can you protect yourself from unwittingly signing away your rights? Don’t sign any document acknowledging you’ve read something unless you actually have read it and understood it completely. And don’t sign any document that says you agree to the terms unless you have read all of the terms and do in fact agree to them.
The Risks of Refusing to Sign

If your employer asks you to sign an arbitration agreement, you can refuse, but you may be putting your job in jeopardy if you do so. Except in very limited circumstances, an employer can rescind an employment offer if a prospective employee refuses to sign the arbitration agreement. And an employer can fire an at-will employee who refuses to sign one. Therefore, declining to sign the agreement could jeopardize your job.

Sometimes, however, employers will negotiate this point, especially if they are more excited about the employee than they are about arbitration. If you are a highly sought after prospect, or if you are a valued employee in your company, your employer may allow you to refuse to sign rather than give you up.

Another option is to agree to sign -- but only if you can negotiate a fairer agreement (see immediately below).
Making the Agreement Fair

If your employer won’t let you outright refuse to sign, it may allow you to negotiate certain terms of the agreement to make it more fair to you. Although an employer may not agree to your requests, it is not likely to fire you for asking. Negotiating your agreement to arbitrate is no different from discussing your salary. The employer is negotiating for its best interest, and it is your duty to negotiate for your own best interest.

You may have to consult with an attorney for help negotiating the fairest agreement possible. Here are some points to negotiate to create a balanced arbitration process:

* Choice of arbitrator. You should get as much say in choosing the arbitrator as the employer. Given the power of the arbitrator, and given the fact that you probably won’t get to appeal the arbitration decision, you will want to have rights equal to those of your employer in selecting who the arbitrator will be. You and the employer should have the right to reject at least one arbitrator without having to give a reason.
* Disclosure of information. Any potential arbitrator should have to disclose any information regarding business and personal interests to ensure she is not biased in favor of the employer. For example, the arbitrator should not be someone who is a stockholder in the company. You and the employer should have the right to reject any arbitrator who has a conflict of interest.
* Costs of arbitration. Because the employer is the one who wants to use arbitration -- something that must be paid for -- the employer should have to pay for the costs of the arbitration.
* Remedies available. Make sure that you can receive through arbitration all of the remedies that you would have gotten if you had filed your claim in a court of law. For example, the agreement should not prohibit you from seeking punitive damages or damages for emotional distress.
* Attorney representation. You should have the right to be represented by an attorney throughout the arbitration process.

You Can Still Ask for Help From the Government

If you sign an arbitration agreement and your employer discriminates against you, you can still complain to a government agency, such as the federal Equal Employment Opportunity Commission (EEOC) -- and the agency can decide to sue the employer in court on your behalf. This is because the arbitration agreement only applies to you; it doesn’t apply to an agency that helps you.



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Age Discrimination

State and federal laws protect workers from poor treatment based on their age.

Stereotypes about older people abound in our culture, but employers are not allowed to indulge in them when making workplace decisions. A number of state and federal laws prohibit employers from discriminating against employees and applicants on the basis of age.

The Age Discrimination in Employment Act

The federal Age Discrimination in Employment Act (ADEA -- 29 U.S.C. 621-634) is the major federal law that prohibits employers from discriminating against employees and applicants who are 40 years of age or older on the basis of their age.

The ADEA protects workers from age discrimination in every phase of the employment relationship, including help-wanted ads, interviewing, hiring, compensation, promotion, discipline, job evaluations, demotion, training, job assignments and termination. The ADEA does not cover discrimination in benefits and early retirement, which are addressed by a different law (see below).

The ADEA applies to all private employers that have 20 or more employees and to federal and local governments. It also applies to state governments, although their employees cannot sue them directly for age discrimination.

Not only does the ADEA prohibit employers from discriminating against older workers in favor of those who are younger than 40, it also prohibits employers from discriminating among older workers. For example, an employer can't hire a 43-year-old over a 53-year-old simply because of age.

State Laws

Many state laws also prohibit discrimination on the basis of age. Although some of these laws essentially mirror the federal law and only protect people older than 40, other laws are broader and protect workers of all ages.

State laws tend to apply to employers with fewer than 20 employees, so your employer might have to comply with your state law even if it isn’t covered by the federal law.

Discrimination in Benefits and Early Retirement

The federal Older Workers Benefit Protection Act (29 U.S.C. § 623 and following) makes it illegal for employers to use an employee's age as a basis for discrimination in benefits and retirement. Like the ADEA, this act only protects people who are at least 40 years old.

Under this law, an employer cannot reduce health or life insurance benefits for older employees, nor can it stop their pensions from accruing if they work past their normal retirement age. The Act also discourages businesses from targeting older workers when cutting staff.

In addition, the Act prohibits employers from forcing employees to take early retirement. An early retirement plan is legal only if it gives the employee a choice between two options: keeping things as they are or choosing to retire under a plan that makes the employee better off than he or she was previously. This choice must be a genuine one; the employee must be free to reject the offer. In addition, if either choice makes the employee worse off, the offer violates the Act.

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