How to Break an NDA, See If Your Pay Is Fair, Confront a Colleague, and More
If you’ve been the object of bad workplace behavior, knowing your options can be the first step to getting justice. Let this guide be your road map for navigating some all-too-common scenarios.
How to Get Paid What You Deserve
You suspect your colleagues may be making more than you, but you can’t know for sure without asking them—which you’d really rather not do.
① Ease in
Truth is, the best information comes from inside your company. If you have friends in similar roles, go to them first. “Think of it as a research project. I think a lot of people feel more comfortable with a research project than they do negotiating compensation,” says Joan Williams, founding director of the Center for WorkLife Law at the University of California Hastings College of the Law in San Francisco. Your best-case scenario is getting to ask someone who’s leaving the company and therefore no longer has any skin in the game.
② Share back
Be prepared to give your number in return. That goes for the internet as well: Sites such as Glassdoor, GetRaised, and PayScale offer anonymized salary data for thousands of jobs at companies all over the world, but only if you sign up and report your salary first.
At larger companies, human resources can generally give you a salary range for different job levels. If you’re in a union, your rep may also have that information. Government workers can find pay grades published with the U.S. Office of Personnel Management. Nonprofit employees can check GuideStar USA Inc., a free database of Form 990s, the disclosures that nonprofits file with the IRS, which include salaries for top positions. If all else fails, consider calling your alma mater; many universities conduct alumni surveys that include salary reports. They won’t be able to tell you any individual’s annual income, but they might be able to help you figure out the range for a particular industry or company.
Remember: Some companies try to prevent employees from sharing salary information among themselves, says Donna Ballman, an employee advocacy lawyer in Fort Lauderdale and author of Stand Up for Yourself Without Getting Fired. But unless you’re a supervisor, you’re protected against retaliation for discussing working conditions, including pay, by the National Labor Relations Act.
How to Break an NDA
You won a harassment settlement from your employer on the condition that you sign a nondisclosure agreement. But the problem has persisted, and now you want to go public.
① Read the fine print
Take a look at the agreement you signed—what’s covered and the consequences of breaking it can vary widely. In practice, many companies are reluctant to commit the time and resources to going after NDA violators, because doing so risks bringing even more attention to an unseemly workplace issue. “It’s kind of a game of chicken,” says Robert Ottinger, an employment attorney in New York. “You’re saying to a company, ‘Do you really want to sue this victim of harassment?’ ” In the hundreds of workplace misconduct cases Ottinger has handled in the past 20 years, not one has involved an employer suing someone for breaking an NDA to talk about harassment, he says.
② Prove a pattern
It’s worth finding out if others could potentially come forward and prove there’s a broader pattern of abuse, particularly if you’re not in a high-profile industry such as finance or entertainment, says Jodi Short, a law professor at the University of California Hastings College of Law. Knowing that others will have your back can make it easier to go public. Support from an organization such as the Time’s Up Legal Defense Fund, which is backed by the National Women’s Law Center, can also offer protection if the company decides to take action against you.
③ Lawyer up
Even if you haven’t signed an NDA as the result of a settlement, you may want to consult a lawyer before you take your story to the press. If you’re bound by an agreement not to disclose trade secrets, there’s a chance the language could be construed to cover any public statements about goings-on in the workplace, though it’s not yet clear whether that argument would hold up in court.
Remember: At least three states—California, New York, and Pennsylvania—are considering legislation that would exempt sexual harassment claims from NDAs. “Sexual harassment was seen as an individual harm to that person,” Short says. What she calls the “toxic public harm” of workplace harassment is now, finally, being acknowledged.
How to Confront a Colleague Who’s Offended You
Maybe they were joking, or maybe they didn’t even realize what they said could be offensive. But it was, and you want them to know it.
① Cool down
Take a minute to consider your history together, says Mary Gentile, a professor at the University of Virginia Darden School of Business. The goal is to put the offending moment in context. Is this an isolated incident that you can let go? Or is it part of a pattern? Deemphasizing your emotional response will help you focus on what actually happened: Did the comment just bother you, or was it actually offensive?
② Call ahead
If you do decide to say something, ask for a meeting, says life coach Celestine Chua—otherwise, you risk catching the person in a distracted moment. Start by giving the benefit of the doubt; use “I” statements (“I felt embarrassed when you made that comment about my mom”) to avoid accusing your colleague of offending you on purpose; and attempt to clear up anything that either side might have misunderstood. As hard as it may be, try not to assume anything. It’s almost impossible to tell whether an offhand comment reflects deeply held beliefs and jumping to conclusions can turn a civil conversation into a hostile one.
③ Talk to HR
If you can’t reach a resolution and the comments relate to race, age, sex, national origin, religion, disability, or other areas protected by law, consult your company’s harassment policy. You may decide to report the comment to human resources. If you do, put it in writing: You want to be able to prove, beyond any doubt, that things happened the way you say they did, and a paper trail helps.
Remember: Be prepared for pushback. Perceived competence drops 35 percent for women when they’re seen to be outspoken, notes a study by leadership training group VitalSmarts. More than half of Latinas report facing backlash for speaking up, says Tools for Change, which promotes women in technical fields. You don’t have to let a significant offense slide, but expect fallout.
How to File a Complaint With the EEOC
There are serious issues with your workplace, and HR has been useless. It’s time to look outside for help.
The U.S. Equal Employment Opportunity Commission was created in 1965 as part of the Civil Rights Act of 1964 to protect workers from discrimination based on race, color, national origin, or gender. How your particular case should be handled depends on what’s happening. If it hasn’t affected your wallet—via demotion, termination, pay cut, suspension without pay, etc.—then the U.S. Supreme Court says you first have to report it to your employer; the EEOC gets involved only if the company fails to act or if there’s retaliation. If the discrimination had financial implications, your case goes directly to the commission.
② Act quickly
The EEOC’s website has a calendar showing the time limits for filing various types of charges—typically 180 calendar days from the time the violation took place, but state or local laws may extend the deadline to as long as 300 days. The official filing, called a charge of discrimination, requires an intake interview, which has to be done in person at one of 53 field offices across the country. They’re often backlogged, so try to start the process immediately.
③ Get backup
Gather any and all paperwork—that could mean emails, onboarding documents, performance reviews, letters of termination, or some of each. Be prepared to detail what happened, including dates and whether there were witnesses. The EEOC will contact both you and your employer within 10 days after you file to say it has opened an investigation. How long that investigation takes varies based on any number of factors, but if the EEOC determines the company has violated discrimination laws, it will pursue a settlement for you.
Remember: Some states have more robust employment protections than the federal system, so you might want to file your complaint with a state-level agency instead—particularly if you work at a startup, because federal law governs only companies with 15 or more employees. In certain cases, a state claim automatically opens a federal claim.
How to Retain an Employment Attorney
You’ve been wronged by your company and want to do something about it, but you’ve seen enough procedurals on TV to know that you need a good lawyer in your corner.
① Shop around
The National Employment Lawyers Association has a Find a Lawyer tool on its website, organized not only by geography, but also by specialty: complaints based on gender, race, or sexual orientation, whistleblower claims, and so on. State bar associations also keep databases of their members and may be able to recommend someone within your community; the same goes for any professional groups you belong to. Legal aid organizations may also be able to provide references, especially for attorneys who might be less expensive.
② Come prepared
When meeting with employment lawyers—many do initial consultations for free—bring any paperwork you have related to your complaint, including official documents, emails, screenshots of text messages, or anything else you think might be relevant. If your case involves discrimination, it may be helpful to make a list of ways you were treated differently. Also list others who might’ve been treated similarly to you; include their ages, races, genders, and sexual orientations, since those are protected under federal antidiscrimination law and the information may help you build your case.
③ Get the facts
Ask your prospective lawyer whether the firm has represented cases similar to yours, and if so, what was the outcome? How much of the work is handled by lawyers and how much by paralegals or associates? Considering that employment law is constantly changing, how does he or she stay on top of recent changes? Very important: Ask what the fee arrangement is going to be upfront. Some may charge a single fee for a consultation, plus an hourly rate. Others work on contingency, meaning that their fee comes out of whatever damages you’re awarded.
Remember: Be sure to find an employee-side lawyer, as opposed to one who’s more accustomed to representing companies. While getting a verdict in court seems really satisfying, a trial can be long and costly. That said, a settlement doesn’t set a precedent, so make sure you go into things with a clear idea of what you want.