Better pay, longer hours? Beware pay bias suit

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in Discrimination and Harassment,Human Resources,Overtime Labor Laws

Here’s a scary hypothetical: A female exempt employee comes into HR to complain about sex discrimination and pay bias. She tells you she works for a male supervisor; two men hold the same position she does. Her hourly rate based on a 40-hour workweek (i.e., her weekly salary divided by 40) is higher than either of the men’s. But she argues that her supervisor makes her work longer hours. She says that’s pay discrimination. What do you tell her?

If you told her that’s not discrimination, you may be wrong, according to a recent case.

Recent case: Cindy Powell worked for Time Warner Cable. Her boss—a man—also managed two male co-workers who held the same position as Powell.

After Powell was discharged in an alleged reduction in force, she sued, alleging pay discrimination.

She said that although her salary was higher than that of the two men she worked with, her hourly rate effectively was lower. That’s because she claimed she had to work 60 to 70 hours per week, while the men worked fewer hours.

The end result, she argued to the court, was that her effective hourly rate was lower in comparison.

The court said she has a case and ordered a trial. (Powell v. Time Warner Cable, No. 2:09-CV-600, SD OH, 2011)

Final note: The thought of suing never crosses the minds of most good employees—until they lose their jobs. Essentially, they have nothing to lose and everything to gain. A visit to an employment lawyer may yield possible discrimination claims the employee never even considered before.

One way to prevent such lawsuits is to consider a severance payment coupled with an agreement not to sue. That’s not a do-it-yourself project—ask your attorney to draft the agreement.

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