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Edited on Sat Jan-10-09 05:39 PM by happyslug
The problem is when you have two people working for you and one is paid less then the other AND the reason for that is NOT business related.
In most cases a person alleging discrimination must produce a "Prima Facia" case of discrimination. i.e. some evidence, not necessary enough to prove the discrimination, that discrimination is the cause for the pay difference. At that point the burden of proof shifts to the employer, who has to show he had some reason, other then illegal discrimination, that explains the difference. if you hire two people, one for X dollars and the other for X plus Y dollars, and one is female the other is male, that is enough, in most cases, to show a Prima Facia case of discrimination (providing both are doing the same type of work). Once the first person makes the allegation, the burdens shifts to the employer to show why he is paying the two people differently. A good explanation is that the second would NOT work for the pay the first person agreed to. As an employer you needed the second worker so you paid the second worker the higher pay. Document the above and you are covered.
The problem comes up when the first employee threatens to quit unless that first employee gets the same pay as the second. If you tell the first employee go ahead a quit, and the first employee does NOT, that shows that the reason for the difference is the willingness of the first employee to work for less then the second. If, on the other hand, the first employee does quit because the first employee refuses to work for the lower wages, then the first employee may have a discrimination charge (Please note, if the employee does NOT quit the employee may still have a discrimination charge unless you can show you had a good business reason to pay the first employee less then the second employee, the burden is on you NOT the employee at that point).
Now the First Employee MUST file an action with the State Equal Employment Opportunity Commission (Or what ever your state calls its EEOC, in Pennsylvania, my home state, it is called the Human Relations Commission). The purpose of this filing is for the Commission to try to work out a resolution of the dispute and to make sure the dispute is illegal discrimination NOT do to some other business rationale. Once the EEOC does its job it will give the employee a "right to sue" letter, which gives the employee the right to take the case to court. The Employee must do so within six months.
Now if I was advising people on such an action, I would tell them to classify their employee by what jobs they are doing. That gives you an opportunity to define people differently based on what they job is. Different Jobs means different pay scales. People hired after someone else may be pay less on a seniority bases., but be careful document the hire date and any time period off work that affects seniority. i.e. someone takes a month off, when that employee comes back, do you treat the employee as a new hire, do you count the month while treating the employee as an long term employee, or do you NOT count that month? I would advise any employer to make such rules known to the employer's employees and follow those procedures to the letter.
Remember you want to be able to show WHY you made the decision to pay two different people two different pay rates. The reason can NOT be an illegal reason. The illegal reasons are Age, Sex, Race, National Origin, Familial status (does the employee have children), disability or religion (Which includes any strongly held belief). Please note the previous list is the FEDERAL list of "Protected Classes", most states use the same list, some states and cities add "Sexual Orientation" but most states and the Federal Government do NOT.
As I keep on telling people Discrimination is LEGAL unless the grounds for the Discrimination is against a person who is a member of one of the protected "Classes" (i.e. you can discriminate against someone do to the fact he is lazy and will not work, but NOT Against a person who do to being a member of a Protected Class you assume is lazy and will not work (i.e. if you know person "A" who is a member of a protected class but you know person "A" personally and know that person "A" will NOT work, the fact Person "A" is a member of a protected class does NOT mean you have to hire Person "A", you can discriminate against person "A" providing the discrimination is based on person "A" refusal to work. On the other hand if you know person "B" and know person "B" is a member of a protected class, but you assume any person of that protected class does NOT work and therefore refuse to hire person "B' that is illegal discrimination, for you are discrimination NOT because person "B" will not work, but because person "B" is a member of a protected Class.
One last comment, this bill is to reverse a decision of the US Supreme Court of a few years back. In that decision, the Court ruled that the six months statute of limitations to file a discrimination suit starts at the time of the first act of Discrimination, if not filed within six months of that act, the lawsuit is barred by the six months statute of limitations, even if a person suffered further discrimination for years afterwards based on that first act of discrimination (The case involved a woman who had received lesser promotion in the company many years ago, but did NOT challenge it for she wanted to keep her job. Several years later she was denied a further promotion based on the fact she had NOT been promoted to the higher position several years before, she sued and the court ruled she should have sued when she was denied the first promotion NOT now do to the six months statute of Limitation to bring discrimination suits).
The purpose of the proposed law is to permit such law suits when the real effect of the discrimination is not known or knowable for years, maybe even decades afterward. In the case that reached the US Supreme Court the promotion that the person should have filed a discrimination action was relatively minor at that time, but since she did NOT have the time in that position her male co-workers did, when a much better paying position opened up she was denied the position do to her lack of time in the position she was denied a promotion into many years before.
Hopefully the law will be changed, for this permits employers to make minor promotions, knowing anyone is a protected class will NOT file a Discrimination action for the relatively small change in pay and/or position, then, after the statute of limitation has expired (six months, Discrimination has one of the shortest statute of limitations on the books, only lawsuits against Police officers are shorter), use the fact the person discriminated against had NOT experienced the slight promotion position as grounds to denied that person a much better position.
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