Despite its placeholder on the calendar, Equal Pay Day is not the kind of holiday celebrated with a ticker-tape parade and a margarita pitcher (though, if a man’s buying, no reason not to accept). It’s more a holiday intended to raise an eyebrow about the persistent gender pay gap: In 2017, on this Equal Pay Day, white women in America still receive 79 cents to a man’s dollar; while black women get paid only 63 cents, and Latinas only get 54 cents. And progress continues to stall.
One thing that contributes to the pay gap is the fact that many women don’t know they are being paid unfairly, or if they do, are too afraid to talk, let alone take legal action against their employers. Daniela Nanau, a labor lawyer who practices in the state of New York and who describes her career as that of a “modern-day Robin Hood,” spoke with the Cut by phone to give guidance on what to do if you suspect you may be getting unequal pay for equal work at your job, what it’s like to fight pay-discrimination cases, and why we need a broader definition of what “equal work” even looks like.
Be prepared to fight.
“Pay cases are difficult because the federal standard for what is considered ‘equal work’ is hard to quantify. It requires you to demonstrate that someone out of your protected group (so if you’re a woman, a man) was paid more than you for doing equal work. Women and people of color, who have the same title and are supposed to have the same duties, are actually [often] assigned more duties. That’s the discrimination. It goes beyond the fact that they’re not paid the same.
Complaining about harassment on the job can lead to retaliatory treatment that [can] kick people out of the workplace. This can be hugely costly [for the individual] whereas large companies and multinational corporations have limitless budgets. They want to litigate because they believe they have more money than the employee, which is true, and they can basically wait out the process. Just the process of discovery in a case, even without attorney costs, can be around $20,000. You need to hire court reporters, an expert to extract electronic discovery from devices or phones or a laptop. Corporations would much rather push it to litigation and see if they can make someone go away because they have the advantage. That is a tension in the American legal system. We afford corporations way more power than they should have.”
Many labor-rights lawyers will consult with you for no cost, pre-litigation.
“Most of my work is on a contingency basis. I do a lot of work up front, which is pre-retainer and cost-free. I sit down with a person, look over any documents they have, any electronically sorted information like texts, emails, whatever is on social media. I try to talk to witnesses. I try to get statements from people. I really try to build a rock-solid case before I have a retainer. If I am confident that I can win the case with the evidence I have in hand before the plaintiff has signed the retainer, then we begin the litigation of the case.
The process begins with a demand letter, which is before you file a complaint in court. You are providing the employer with notice of the claims, along with notice of their obligation to preserve all evidence including electronically stored information. Many employers try to destroy this evidence almost immediately after someone has left, even though they’re obliged to keep employment records for six years under federal law. I try to begin a dialogue with the employer’s attorney about the case. Sometimes we resolve it pre-litigation, but most of the time, we have to file a complaint. I like to practice in federal court as opposed to New York state court. Article 3 judges are supervised by Congress, so they move cases along much faster than New York state judges, who are elected. I’ve had cases take seven years in state court, as opposed to two years in federal court.”
There can be strength in numbers.
“If the problem is prolific, that’s how class and collective actions happen. If all the paralegals in a law firm are not being paid overtime, if one of them goes to an attorney to say, ‘Hey, I don’t think this is right,’ and then if they find an attorney to take on their case, often folks will join in. My more successful cases are multi-plaintiff cases. Folks corroborate one another and that’s powerful. Juries don’t really believe that folks who band together to bring a lawsuit are just making it up. It’s a very powerful thing.
At some workplaces, no one is going to talk. At others, people are more courageous. Even though these cases are difficult to bring, people are amazing. If people see a colleague being wronged or if they are being wronged themselves, a lot of people are going to be courageous and say, ‘I’m going to sign a statement.’ That’s true of people who have positions of privilege, maybe folks who are more highly compensated, but it is also true for folks who are not. I have litigated many cases on behalf of low-income employees, who all stuck together and corroborated the claims of my client. If you work in an environment that is polluted by discrimination, by hatred of women or people of color, that’s going to affect everyone.”
Pedigree should have nothing to do with how you are paid.
“In bringing a [pay-discrimination case] to litigation, the question of whether both employees are equally qualified always comes up. This is how employers sow doubt in these cases. Judges will glom onto that. In some industries, where there is very specific expertise and knowledge that is needed, like in the sciences, I would say, yeah, maybe that really affects someone’s work. But most folks, you come with a skill set that results in part from your pedigree, in part from your education, and in part from your natural talent. So the measure should be performance. When employers put extra weight on a Harvard degree as opposed to work experience, that’s comparing apples and oranges.”
Consult with a lawyer the minute you suspect you might be receiving unfair pay.
“People have a tendency — because we have the internet now — to self-diagnose. I think that if you really believe that you are being treated differently at work, you need to find a lawyer who you can consult with. There are thousands of lawyers like me all around the country who would love to sit down with someone who believes they are being treated unfairly at work — for free. People should get the advice of someone who is trained in this area. If you do have a claim, then you can always determine later if you want to pursue it. That is always the right of the client.
I think people get scared that once they start talking to a lawyer, they may be pushed to do something they don’t want to do. There may be some aggressive attorneys out there — certainly we earn our reputation as aggressive folks — but I think that employment lawyers are a little different. We do this for many reasons. We’re not making bank as civil-rights lawyers. We do things that allow us to sleep well at night.”
Assess how much you’re willing to fight. And don’t quit your job yet.
“People need to consult with an expert and then decide what they want to do. They need to hear the expert’s view of the strength of their case, what they have to do to make it stronger, whether that will entail trying to talk to co-workers. This is about the stress level that this person can take on. Litigation is very stressful. Especially if you’re still at the employer, you can feel very vulnerable. Those feelings are based in reality. Your employer may start to retaliate against you because you’ve retained an attorney who sent in a demand letter. That can be scary stuff. For a lot of people, work is hard enough. You don’t want to deal with extra aggravation.
I always encourage my clients to remain at their jobs. You never want to just throw in the towel and leave. A client’s health psychically and physically are always the most important things. If it’s so toxic that you can’t go to your job anymore, then we deal with those situations. I’ve had clients who litigated to the end and settled, and were still at work. I think that creates enormous pressure on the employer. Quite frankly, even if you decided to litigate against your employer, most of us don’t have tons of money in the bank so that we can say, hey, I’m just going to leave this job. That’s just not a reality.”
NDAs are contributing to the pervasiveness of the pay-discrimination problem.
“In specific wage-theft cases that are brought under the Fair Labor Standards Act, settlement agreements are forbidden from being private. They must be on the public system and courts must review them. I think that it should be that way with all kinds of discrimination claims, all kinds of employee-related claims, but it’s not. Unfortunately, Congress does not feel like I do. That’s why I’m opposed to forced arbitration, because beyond the cost on the individual, it brings the process out of the public light. That is part of the power an employee brings to the table: the fact that the fight is public. When these cases are solved on a confidential, private basis, so that other employees who face the same kind of discrimination don’t have access to the settlement agreements, that is problematic. It makes settling cases for good money harder. Ninety-nine percent of cases settle. One percent of cases go to jury trials.
Unless it’s a wage-theft case (as opposed to pay discrimination), every other claim that is settled for my clients always has an NDA. That’s part of what the company is buying: silence. You’d be shocked by how many employers initially refuse to engage counsel because they’re so upset that someone is suing them. The power differential is so extreme on the side of the employer that I often walk into situations where the employer is so incensed, they really want to throw things at me. ‘How do you have the audacity to come here and ask me for money?’
When a public complaint is filed, though, there is always going to be a federal judge watching the process, even in arbitration. That leaves little breadcrumbs for future people — people who might one day work at those companies — to follow.”