It is commonly known that women make 77 cents on the dollar compared to men. A disturbing statistic, but what can you do if you learn that you, personally, are making less than your male colleagues? You should know that a private employer cannot prohibit employees from discussing their wages, and cannot retaliate against an employee for discussing wages. So, unless you are a government employee, it is perfectly legal to exchange salary information with other employees. Now that you know this, here’s a summary of your rights to equal pay under New York State Law.
New York State Equal Pay Law
If you are employed in New York State by any organization other than a government agency, you are covered by New York State Human Rights law. All people performing similar jobs at an organization do not need to be paid the same, but New York State Human Rights Law §194 requires that there be a reason for the difference that is not tied to sex. Employers can pay people doing the same or similar jobs different amounts if the difference in pay is based on a business-related reason, including: seniority, merit system, a system which measures earnings by quality or quantity of production, a bona fide job-related factor other than sex, such as education, training or experience. This law applies to all employers which are not government agencies, that employ someone in New York State.
Finding out that a co-worker doing the same job is being paid more than you can be very upsetting. Once the initial anger and hurt subsides, you may want to start planning how to address the issue with your employer. This post provides a general outline for how to evaluate your options, but all cases are extremely fact-specific and you should not consider this post legal advice for your issue.
Bringing an Equal Pay Claim at the New York State Division of Human Rights
Employees have the right to file a complaint with the New York State Division of Human Rights ("NYSDHR") for sex discrimination on the basis of unequal pay. Employees can do this on their own, with the help of the NYSDHR, or by hiring an attorney. Either side, employer or employee, can appeal a NYSDHR decision in New York State Court within 60 days. NYSDHR has the power to award employees 100% of wages found to be due, or 300% of wages found to be due, if the employer willfully pays differently based on sex.
Claims can also be brought to the Equal Employment Opportunity Commission, using the Federal Equal Pay Act. Similarly, you can bring a claim at the NYC Human Rights Commission.
Although employers are prohibited from retaliating against employees for filing a discrimination action, it is often worthwhile for an employee to communicate directly with their employer to negotiate a raise before taking any other action. This is especially true for employees who have a good relationship with their employer and want to continue working together.
Preparing to Negotiate
Employees should set up a meeting with someone in their organization who has decision making power about pay. Do not try to tack this conversation onto a separate meeting. The employee’s goal for the meeting is to get a pay raise to bring them in line with their co-worker who is currently being paid more. It is useful to be clear about the number you are seeking.
Employees can prepare for these negotiations by gathering all the relevant facts about why they are good employees worthy of more pay, and why they should not be making less than their co-worker based only on their gender.
Relevant facts about the employees’ value to the employer can include:
Employees should also think through any clear business reasons the employer may give for why they are paying you less than the other employee. For example, if the employer points to your co-workers’ degree, you could push back, saying that you don’t see the connection between the degree and your job-responsibilities. The employee may not have the burden of proof for the business relationship, but this could be a useful tool for hinting to the employer that you are informed while advocating for yourself.
If you find that you are being paid less than a colleague and can only imagine it’s due to gender, learn your rights and use them by taking direct action as described in this post, or contacting an employment lawyer to help you assert your rights to equal pay.
