QUESTION:  A co-worker and I both worked as Assistant Managers for a business. The Manager had a drinking problem, so we had to do his work on top of our own. When the manager was finally fired, my co-worker and I suggested that instead of hiring a new manager, we could split the managerial duties (for a bump in pay) – which is what we’d been doing anyway. Our proposal was accepted; we’ve been sharing responsibility for the manager’s job ever since. A few weeks ago, I happened to see my co-manager’s paycheck, and realized he’s making $4 more per hour than I am, although we do the same work, and have very similar backgrounds – except, of course, he’s a man and I’m a woman. I don’t want to get my co-worker in trouble, but I’m fuming. This is not fair.

ANSWER:     You’re right, paying two people different wages for doing the same work is not fair. When the discrepancy is based on gender, it’s also against both state and federal law. Under the Equal Pay Act (EPA), 29 U.S.C. 8, Sec. 206(d), wage disparities based on gender are violations of the Fair Labor Standards Act (FLSA). In Michigan, an employer can be criminally prosecuted for wage disparities based on gender. MCL 750.556.

The EPA states, in part, that no employer shall discriminate “between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.”

The burden on an employer in an EPA case is heavy: It “must show that the factor of sex provided no basis for the wage differential.” Bowen v Manheim Remarketing, Inc., 882 F3d 1358, 1363 (CA 11, 2018). In the Manheim case, the appeals court ruled that a woman who was paid less than her male predecessor presented sufficient evidence for the case to proceed even where the employer contended the reason for the disparity was that the predecessor had more experience, tenure, and a higher salary carried over from a prior position.

An employee who has been the victim of a violation of the EPA may be awarded back pay for the entire time the discrepancy existed. In your case, you may be eligible for back pay of $4.00 per hour (the differential) for the entire time you and your co-worker have been sharing the same job.

You may also want to discover what your co-worker was earning while the two of you served as Assistant Managers. Gender-based wage discrepancy often begins at the time of hire when, for example, an employer might set a new hire’s rate of pay based on his or her pay at a previous job. Since men tend to be paid more than women, consideration of pay at a previous position tends to perpetuate wage disparity.

In Michigan, an employer who pays different wages for the same work, based on gender, may be looking at criminal responsibility under MCL 750.556 which states that any employer ”who shall discriminate in any way in the payment of wages as between sexes who are similarly employed, shall be guilty of a misdemeanor.” Before you take action, like filing a complaint with the Department of Labor, you might wish to contact an attorney.

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By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law

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