By Jack Tuckner, Esq.
Pay disparity, unequal pay that’s prohibited, is not just based on sex anymore in New York. It’s based on anyprotected status, such as race, color, creed, age, gender, gender identity, disability, marital status, sexual orientation, etc., all of the protected statuses under the New York Human Rights laws are covered by the unequal pay law. So, if you are performing substantially similar work (compared with) someone who’s not in your protected category, and you’re doing this work viewed as a composite of the skill, effort and responsibility required (and performed under similar working conditions), it is illegal, and it occurs. And assuming that you’re still working for the company when you realize that you are being paid less than comparator employees, performing substantially similar work under similar working conditions, you must complain to your company to give them a chance to rectify this illegal pay disparity.
Now, if there are certain legitimate factors that a company can use to say, whoa, whoa, whoa, it (the pay disparity) had nothing to do with her gender, or his race, or age, etc. It has to do with seniority, experience, some measurement of quality and quantity of production in the workplace, something objective. It could also be based on education, experience and so forth, merit. So, if the company has a legitimate, non-discriminatory reason (for the pay gap), such as the person you’re comparing yourself to has been here 20 years, and you’ve been here two, for example, then it’s going to be difficult to prove your point because they have a non-discriminatory reason to say that’s why you’re paid less. But if none of those non-discriminatory reasons are true, and you know, or suspect, that you’re earning less than a similarly situated employee who’s not in your protected category, then you must complain to your employer.
And by the way, your employer in New York is no longer entitled to ask any questions of a current employee or an applicant about their salary history, yet (employees) are entitled to talk about salaries in the workplace. So, you may well find out by asking a question of your colleague, how much are they earning? And what’s the job they’re doing. And if you realize again, or suspect, that due to your sex or pregnancy, or for any protected reason that you are earning less than you should be compared with others who are not female, (not) of color, (not) over 40, etc, put your concerns in writing to your company so that they can investigate this complaint, as they must, and then resolve it when they realize, hey, we have no excuse for this, we didn’t realize. And now they raise your salary. That’s the best way of dealing with this initially.
And if your company doesn’t respond or simply says, sorry, (just) deal with it, before you run off and file a complaint with the US EEOC, or the NY State Division of Human Rights ,or file in court, you should consult with an employee rights lawyer to determine the best course of action before you commit to it. And one of those law firms is our own. I’m Jack Tuckner. The firm is Tuckner, Sipser, Weinstock and Sipser. We’re based in New York, and will offer and provide a no charge, fully confidential consultation to see how we may empower and assist you in getting the salary raise that you’re entitled to, and that you deserve. Take care.