Unfair or Unlawful? Only a Lawyer Knows

By Lindsey Novak

August 20, 2020 6 min read

Q: I notified my employer of my future plans to leave a key position, so upper management began to look for my replacement, as it will take quite some time for the person to learn everything. The new hire is younger than I am, but I was told he would be making less than I did. He has started, and we have an excellent work relationship.

I also have a great relationship with my supervisor, but I accidently found out this new hire is making a significant amount more than I was told. When I discovered the difference, I told one of my bosses what I knew, and then I remained quiet. I am upset but would not want to sue my employer. I do wonder, though, if this would fall under age and gender discrimination.

A: You have a right to feel betrayed by management for lying to you. Though you are not interested in filing a lawsuit, it may give you peace of mind to consult an attorney in such a situation, as he or she knows every question to ask to determine your options. It might also help to calm you down if you learn that your situation may not be as legally compelling as it is morally compelling.

"An important fact to accept is that we live in a capitalist society and our laws are structured for optimal business flexibility. Generally, barring some civil rights issue, employees work at the pleasure of their employer in terms of salary, benefits and the like," says Patrick J. Boyd of the Boyd Law Group PLLC, a law firm with offices in New York, Connecticut and Texas. Boyd, a named super lawyer in the field of employment law since 2014, added: "If a younger person or a poorer performer earns more than you earn, that may be considered unfair, but it is not unlawful. Anyone would object to a new and younger employee whom you must train earning more than you. But your employer lying to you about the new hire's salary makes matters feel worse. You can ask for an immediate pay increase as a result of the new information, but your employer is not required to honor or even consider your request."

Whether this could be an age and gender discrimination is a legal question requiring a thorough legal review. According to Boyd: "Such forms of discrimination are generally evaluated by the severity or the volume of evidence where discrimination is the rationale for the unfair treatment. If there were ageist or sexist comments in the workplace, then you would have a stronger claim. A discrimination claim might also be more powerful if many younger employees were being hired and older workers were being let go. Further, if your employer said they would pay the new hire less just to avoid the difficult conversation with you, you would have caught them in a lie, but you would not have a legal claim just because the company made an unethical decision."

What may seem unlawful to a person outside the legal profession can often cross the line of unethical or amoral, but that is where the issue stops. This is why it is best to consult an attorney who practices in labor and employment law to evaluate and potentially settle your concern.

This may be the perfect time for you to negotiate a favorable severance contract to cover this new period of employment and training they wish you to engage in for a smooth transition. Because the company is counting on you to fully train the new hire, this gives you the upper hand, which you may never have realized before.

Sometimes, your best revenge is to leave your job and find another employer where you are valued. The problem, of course, is that you have put many years into your position with your current employer — so this may not be the best time to start a new job. On the other hand, despite the possibility of experiencing age discrimination from an interviewing company, your expertise in a specific field may be exactly what a new company seeks.

When the final time comes to leave the company, Boyd suggests you have an honest and polite conversation with your bosses before you leave; this is also known as an exit interview. It is not legally required, but it would be a courteous and respectable response to what has taken place to show your employer you have the better set of core values and manners.

You might even consider this experience of betrayal and unfairness as a blessing — one that will make leaving the company a great deal easier for you emotionally than if they had not treated you unfairly. But paying the person more also could have been an innocent decision motivated by concern of your notice to leave a key position. Whichever it is, it is one of life's lessons that no matter how well you think you know a person, you really never know how a person will act until he or she is in that exact situation.

Email career and life coach: [email protected] with your workplace problems and issues. Ms. Novak responds to all emails. For more information, visit www.lindseynovak.com, and for past columns, see https://www.creators.com/features/at-work-lindsey-novak.

Photo credit: jessica45 at Pixabay

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