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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 15816
Experience:  Employment/Labor Law Litigation
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Im being paid 20% less than my coworkers in the same position.

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I'm being paid 20% less than my coworkers in the same position. I was promised to review the situation after 6 months. After that time, I've been said the company has paid a consultant who determine salaries are over the national average, and then my salary can't be revised. Is this correct?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 1 year ago.
Hello, my name is XXXXX XXXXX I look forward to assisting you today. I bring nearly 20 years of experience in various legal disciplines.

Do you have an employment contract stating that your pay must be at a certain rate?

Do you have any evidence that the reason your pay is lower is your race, religion, gender, age, disability or FMLA use?
Customer: replied 1 year ago.

I was hired for a different position, and then my contract established an hourly wage (non-exempt employee).That was more than 3 years ago. 1 week after I started in the Co. they let one of my coworkers go. I was asked to perform his duties, which were of a higher responsibility.


 


After 1 month in that position, I asked my supervisor about the possibility of being paid for the tasks I was performing. I was told a 90 days period should be completed for my hourly wage to be revised, however my case had been already addressed with HR. I received the raise after the trial period.


 


A couple of months later a new Director was appointed to manage the area. He made awful changes in the structure of the area including manager's responsibilities. They let the Director go 2 years later. In the meantime I had several differences with my new manager who unfortunately has little experience in the particular activity she was appointed for. In one of those discussions she asked me why not consider to leave the Co. My problems with this manager were known by HR.


 


Having such problems with my manager I asked my first manager to be considered for a new position being open in his area. I was appointed for this new position and then left my initial area. My new coworkers earned at least 25% more than my previous hourly wage. Two months after being accepted for this position I asked my manager for the opportunity of being paid the same way my coworkers were. 2 months after my request I was told that due to my problems with the former manager my salary couldn't been revised for a period of at least 1 year.


 


I patiently waited the one year penalty period and in May 2012 I requested a meeting with the Director of HR. After explaining the situation to her she claimed that she had no previous notification of the "1 year penalty" decision", and then requested a time to review my profile. I have never received an answer from her regarding my request.


 


A few months later while still doing the same job and as part of the yearly performance review, I was asked by a new manager why I didn't addressed my pay concern with her. My answer was that she had nothing to do with the issue and that I was waiting for HR action (This happened 7-8 months after the meeting with the HR Director). In the meantime I completed my MBA and started looking for other opportunities.


 


At the beginning of this year I was finally granted the same hourly rate my coworkers had. This was a result of my performance review and the personal interest of my manager.


 


As part of my interest to advance my career, I applied for an exempt position for which I considered I had enough experience and educational background. Although I failed to reach my objective in a first try, a few weeks later I was called by the manager of the area due to a similar position was suddenly freed and he needed a person with certain urgency. When negotiating the salary, I was told I have just received an important raise, and then they could only afford a 10% increase if I accepted the new position. I already knew the former holder of the position was earning at least 8% more than the amount they were giving me. After some sessions, they finally set up the issue with a "take it or leave it" choice and the promise that after 6 months in the position they could reevaluate the case and provide a salary raise if applicable.


 


I have had outstanding results in the new position. This is the main reason why I have been called by my manager two weeks before the end of the promised term in order to explain me that his director and the Director of HR explained him that a considerable amount has just been paid to a consulting firm which revealed our Co. was paying too high salaries. As a result, I couldn't be honored with a salary review. Once again, my answer was that even thought in disagreement, the most important for me was continuing my professional development. The fact is that I currently have a heavy workload, good results recognized by internal and external customers, however being paid the lowest salary in the team, which is at least 10% below of my next coworker who was hired by the company 6-7 months ago.


 


Determining any evidence of discrimination is really hard. Although it is true I have been living in this country for no more than five years, most of the employees of the FL facility are immigrants or of immigrant's origin. Maybe you can provide me with some examples that could be denoting the existence of any kind of discrimination and therefore help me to establish the case.


 


Thanks for your help!


 


 

Expert:  Allen M., Esq. replied 1 year ago.
Ok. From the sounds of it, you are not really under any sort of employment contract. You were under and employment agreement, which isn't legally binding. It just generally states the terms of your employment, but those terms are "at will."

That means that they can legally change your job status, your wages, your benefits, any time they want.

So, the only way this pay difference is illegal is if it is based on your nationality. You would know if any overt acts of discrimination were made against you, because they would be made directly to you. So, you would have to look for more hidden acts.

If you differ from every person in your office in nationality, and they all get paid more than you, it could be argued that your nationality is the basis for your lower pay. However, if everyone differs in nationality, then it isn't going to be reasonable to argue that your nationality is the basis for your differing pay. If most of the employees that are being paid more than you also have an immigrant status, then that really detracts from any argument that you are being discriminated against based on that fact.

On these facts, unfortunately, the employer doesn't appear to be violating the law. They can choose not to raise your pay based on their belief (even if wrong) that the salaries are too in as compared to the rest of the company.
Customer: replied 1 year ago.

I have a contract with an offer which was extended to me at the time I was hired by the Co. 3 years ago. However, what is true is that I never received a new contract nor an offer for the subsequent positions I have been appointed for during this term. Does it mean I currently have an employment agreement only?

Expert:  Allen M., Esq. replied 1 year ago.
Your original contract with the offer, did it state specifically that you could only be terminated for cause or that the terms of your employment could not be altered without your consent?

Because if it didn't, then you didn't have a contract the first time either. Most people in this country (probably more than 99%) do not have a true employment contract. They have employment agreements that are "at will" meaning that they can be altered at any time.

Regardless, if you changed jobs without obtaining a new contract, assuming you had a contract in the first place, your current position is not contracted. It's "at will."
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 15816
Experience: Employment/Labor Law Litigation
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