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Employers that pay new hires more than employees with the same or similar experience should be prepared to prove why they needed to sweeten the pot.

Otherwise, they risk an Equal Pay Act (EPA) lawsuit if it just so happens the hire is of the opposite sex as an incumbent.

Under the EPA, employers can win a case if they show they made the pay decision based on any other reason than sex. That can be easy—but it must be documented.

Recent case: Stephanie Sandor worked for Safe Horizon as an HR manager. She had 10 years of HR experience, plus a master’s degree in human resource management. She received stellar performance reviews.

When her supervisor was looking for a temporary replacement for another HR manager going out on maternity leave, he picked a previously unemployed man with 10 years of HR experience, but only a high school education. His starting pay was the same for a four-day week as Sandor received for full-time work.

Sandor quit and found another job when the man was promoted and became her supervisor. Then she sued, alleging EPA violations.

The court said her case could go forward because the employer hadn’t come up with a solid reason other than sex for paying the man more for the same work. It wasn’t his education. Nor was it the urgency of finding a temporary replacement, since the employer presumably knew the other HR manager was pregnant and would be on maternity leave. It also didn’t need to pay more to lure the man from another employer, given his unemployed status. (Sandor v. Safe Horizon, No. 08-CV-4636, ED NY, 2011)

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