Working for Justice

Lady Lawyer Lessons*: #LeanIn #LeanOut : The Hokey Pokey Pay Game

Posted February 26th, 2015 by in Wages and Overtime Law.

Recently, many of my clients and friends have been discussing problems and questions surrounding negotiating their pay.  One observed that, after negotiating her starting pay with her employer, her supervisor branded her as a trouble-maker – a reputation that, when she asked for a raise two years later, led to them (wrongfully) terminating her.  Along with being incensed at this treatment, she posed the reasonable question, “What’s a woman to do?”

Another mentioned the Maria Konnikova piece “Lean Out: The Dangers for Women Who Negotiate” from last summer, which was making the rounds again this last few week.  In Konnikova’s piece, she recounts the story of a female professor whose offer of employment was rescinded when she attempted to negotiate her starting salary.  Konnikova then went on to explain that researchers looking at this topic, “repeatedly found evidence that our implicit gender perceptions mean that the advice that women stand up for themselves and assert their position strongly in negotiations may not have the intended effect. It may even backfire.

This has to do with the simple fact that when women are seen as assertive, direct, and self-confident (qualities prized in men), those attributes can be viewed very negatively.

Take the experiences of Ellen Pao, current CEO of Reddit, who was criticized and penalized for allegedly being aggressive and assertive and otherwise insisting she not be sidelined in her Company.  And there can be no doubt that (unlike the epic reaction of Meryl Streep and Jennifer Lopez that will be one of my favorite gifs for time foreseeable), many brows furrowed in consternation when Patricia Arquette raised the issue of pay equality during her Oscar acceptance speech.  Leaning In and Speaking Up, while popular as abstract ideas aren’t always as popular when playing out in real life.

But experience tells us that a significant portion of the pay gap between women and men is attributable to discrimination in starting compensation.  So, what is a woman to do?  There isn’t an easy answer, but there are some firm guidelines that I use when advising clients and friends alike.

1.  Ceding This Ground Isn’t An Option.  It’s true that everyone has to pick and chose their battles.  But this isn’t one of those places.  It is important to let any employer – potential or current – know that you know your value and expect them to recognize your value as well.  It sets the right tone for your interactions moving forward and ensures that everyone is on the same page about what it is you’re contributing.  But also –  THIS.  IS.  YOUR.  PAY.  You literally can’t afford to give up on this one.

With that obvious point out of the way, let’s turn to how to negotiate this hokey pokey pay game of leaning in and leaning out while keeping everyone happy.

2.    Build a Foundation For the Pay Conversation In Advance.  If you’re negotiating your pay in the context of an existing relationship with your employer, then you can lay the groundwork throughout the year in the ways I discussed in my previous post on Selling Yourself (in the good way). If you’re negotiating your pay when just starting with an employer, please don’t wait to think about compensation until the topic actually comes up.  Just as in an existing employment relationship, where you should be periodically laying the groundwork for a pay discussion later in the year, you should be laying the groundwork for your pay conversation with a new employer from your very first interactions.

3.    Use Specific Examples To Drive the Conversation.  When you’re laying the groundwork, you need to be using specific examples.  I’ve previously explained why and how, in the context of an ongoing employment relationship, you should have frequent conversations with your employer about your successes, the challenges you’re overcoming to generate those successes, the other people you’re collaborating with to generate those successes, and your ideas for generating even bigger and better results in the future.  In the new employment context, you can still do many of those same things.  Be ready to highlight the particular successes (academic and experiential) you’ve demonstrated in the past that made you an attractive hire.  Also be ready to talk about how you’re going to fit into the existing teams or structures at your new employer in ways that highlight how you should make as much or more than the relevant colleagues at issue.  Finally, be ready to talk about timelines and benchmarks about what you anticipate accomplishing for the employer over the coming year, so that your employer understands just what it is he or she will be buying.

4.    Know Your Industry Numbers.  Before you discuss compensation, you need to know two sets of numbers: relevant industry numbers and your own subjective ones.  For the industry ones, do your internet research (or research through colleagues and friends) about what your employer is paying people.  You can also, if need be (and especially if you’re moving into a new profession or geography), reach out to a broader network through things like LinkedIn to arrange informational conversations with people at competitor organizations to learn more about their compensations benchmarks.  You may be surprised by how many people are willing to provide a stranger some perspective.  You should have a sense of what the range of compensation for your position is so that you can assess whether the number the employer offers makes sense.

5.    Know Your Subjective Numbers.  Here, you need to take some time to look at your life, your career, and your obligations – financial and otherwise.  Figure out how much you reasonably hope to get, and set this as your middle number.  Then figure out what your stretch number might be; this is the number that you feel you can make a decent argument for, even if you recognize it’s a long shot.  This is the kind of number where you might say to yourself, “it doesn’t hurt to try.”  Finally, figure out your bottom-line number.  This is the number that, below which, you won’t feel good about accepting the position.  A range of factors can drive this, including how you are setting yourself up for long-term financial growth and security, paying off debts, or maintaining a certain lifestyle for yourself or others you support.  When setting this low number, remember two things: (a) you aren’t just negotiating for yourself — you’re negotiating for your future and any family you support in the future; and (b) you have to honor that low number no matter what.  If they go lower, that isn’t ok.

6.    Create Accountability.  If you’ve read my earlier columns, you know I’m a big fan of accountability.  Here, you need to create accountability for yourself and for your employer.  For yourself, tell a trusted friend or family member your subjective numbers (low, medium, high) so that, after you come back from the conversation, you’ll have some accountability for actually using all the research and planning you’ve done.  For the employer, plan on memorializing the conversation after it happens in a letter you’ll send to them.  Pre-write the parts of the letter you know you can control.  This means that you’ll have mapped out, in writing, what you’re going to say to your employer about points 2-5 above.  What you’ll fill in afterwards is where the numbers actually ended up, what they said about your presentation, and how you feel about the conversation.  By writing it out, you’re much more likely to do it.  And, honestly, if things go south, you’re employer may reconsider upon receiving your letter and you’ll have a record of it to help defend yourself.

These are not fool-proof or guaranteed to make you millions.  After all, the world is not yet the fair place it should be.  But, they are reasonable and measured steps you can take that put you on the best possible footing for success.  As one of my girlfriends recently commented after going through this process, “it was scary, but I’m proud of myself.  AND, I’m making more than I thought I would!”  Isn’t that what this is all about?

* Lady Lawyer Lessons is a monthly column where Kate K shares tips she wishes her clients knew before they came to her (or any other lawyer) for help or advice. As always, this is not intended to constitute legal advice or to create an attorney-client relationship.  Instead, these are just some of Kate’s “rules of the employment road” that are often a good idea but may not apply in a particular situation.

Sanford Heisler Sharp, LLP

Sanford Heisler Sharp, LLP is a nationwide litigation law firm with offices in New York, Washington, DC, San Francisco, San Diego, Nashville, and Baltimore. We represent individuals against powerful interests. We act as a private attorney general in support of the private and public good. Learn More

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