Be ready to explain lower pay after complaint

When employees complain about discrimination or some other employment law violation, that’s generally considered protected activity. Punishing them in a way that affects pay may be unlawful retaliation.

But there are many reasons why someone’s pay might be reduced. If an employer can offer up an explanation, it’s possible to beat a retaliation charge based on a pay cut.

Recent case: Jorge, who is Hispanic and has dark skin, is over age 40. He worked as a temp employee, doing warehousing and related tasks. He came to believe a white worker was earning more than him, so he complained internally.

Soon, Jorge was hired to work full time, with a regular pay rate of $9 per hour. However, he was still often assigned to work in the warehouse. During those shifts, workers were paid a fluctuating rate based on how much merchandise there was to move during that shift. Everyone was paid proportionally to their usual wage.

The employer set a figure for the shift based on the weight of the items in the shipment they moved, dividing the aggregate amount proportionally. Under the system, a worker whose regular rate was $20 per hour would be paid twice the amount as someone who made $10 per hour. Naturally, everyone’s weekly paycheck varied depending on the shifts they worked.

Jorge sued, alleging he had filed another discrimination complaint after being hired full-time and that he was punished by being assigned to lower-earning shifts.

The court said shift changes that result in lower pay might be retaliation, but gave the employer a chance to explain. In this case, the employer told the court that its business was seasonal and Jorge’s lower pay occurred during slow times. That convinced the court that retaliation hadn’t happened. (Magana v. Coleman World, WD PA, 2017)