Hinshaw's 12 Days of California Labor & Employment Series – Day 11: Pay Data Reporting – Another Headache for Employers

In the spirit of the season—and keeping some semblance of normal—we are using our annual "12 days of the holidays" blog series to address new California laws and their impact on California employers. On this ninth day of the holidays, my labor and employment attorney gave to me: eleven pipers piping and SB 973.

The Equal Pay Act has been in play for decades and has expanded over the years. In 2015, Governor Brown signed the California Fair Pay Act, which became effective January 1, 2016. The California Fair Pay Act aimed to ensure equal pay for employees performing "substantially similar work" and also to make it more difficult for employers to justify pay disparities through the "bona fide factor other than sex" defense. Existing federal law requires certain companies to file an annual employer information report which includes data regarding demographics of the employer's workforce (EEO-1) with the federal Equal Employment Opportunity Commission (EEOC). SB 973 is another attempt to minimize California's gender pay gap. A similar bill was vetoed in 2017 and then held in committee throughout 2018 and 2019. More ›

Ninth Circuit Rules That Gender-Based Pay Disparity Cannot Be Justified With the Use of Past Earnings

Nearly 60 years after the passage of the Equal Pay Act of 1963, we find that the gender pay gap is not only alive and well, but also remains a subject of controversy. This was apparent in the Ninth Circuit's ruling in Aileen Rizo v. Jim Yovino, which we've been following since the Ninth Circuit heard the case. This is the highest-profile court to address the use of salary history—and its intersection with the Equal Pay Act—in the employment setting. More ›

State of Illinois Prohibits Employers from Using Salary History in Hiring Process

On July 31, 2019, Illinois joined a growing list of state and local governments that have banned employers from using salary history in the hiring process. For those keeping count, there are now 18 state bans and 18 municipal bans nationwide. Illinois adopted its salary history ban through an amendment of the Illinois Equal Pay Act of 2003. Once the ban goes into effect, Illinois employers, employment agencies, and staff will be prohibited from seeking salary history information from a job candidate or her past employer. The main purpose of these bans is to bridge the wage gap between men and women doing the same or similar jobs. Many believe salary history information is used to perpetuate the long-running salary differences between the sexes, because employers have historically set starting salaries based on last reported wages by the applicant. The ban brings significant changes for employers, so it is likely that litigation in this area will increase. Fortunately, there are proactive steps employers can take to prepare for the ban, which goes into effect September 29, 2019. More ›

Use of Salary History Taboo? Ninth Circuit Weighs In

Use of one's last salary or salary history to determine compensation can be a proxy for sex discrimination. Once considered a legitimate "factor other than sex," some jurisdictions are banning the use of a job candidate's salary history to determine compensation as it has perpetuated pay inequities between the sexes. The Ninth Circuit Court of Appeals is the highest-profile court to address, and ban, use of salary history in the employment setting in most (but not all) cases. More ›

The 12 days of California Labor & Employment Series – Day 2 "Salary History"

It's the end of the year and while everyone is busy, employers in California should be aware of new laws and regulations that go into effect on January 1, 2018. In the spirit of the season, we are using the next "12 days of the holidays" to blog about one California law each day and the law's impact on California employers. On the Second Day of Christmas, my Labor and Employment attorney gave to me – two turtledoves and AB 168. More ›

Massachusetts Passes Radical Equal Pay Law

On August 1, 2016, Massachusetts Governor Charlie Baker signed An Act to Establish Pay Equity, which as the name aptly suggests, seeks to ensure equal pay for comparable work for all Massachusetts workers and equal opportunity to earn competitive salaries. The Act will take effect on January 1, 2018.

The new law prohibits any wage disparity between genders for "comparable work." The statute defines "comparable work" as "work that is substantially similar in that it requires substantially similar skill, effort and responsibility, and is performed under similar working conditions; provided, however, that a job title or job description alone shall not determine comparability." More ›

DOL Updates Federal Contractor Regulations Prohibiting Sex Discrimination for First Time Since 1970

On Tuesday, the U.S. Department of Labor announced a final rule to expand sex discrimination guidelines for federal contractors and subcontractors. The final rule updates—for the first time in over 40 years—the Office of Federal Contract Compliance Programs' sex discrimination regulations to align them with current interpretations of Title VII of the Civil Rights Act of 1964 and the realities of today's diverse workforce. More ›

Sixth Circuit: No Gender Bias in Wage Difference between Male and Female Counterparts

In this case, the employee began working with the auto parts manufacturer when she was a student. After she graduated, she was hired as a test engineer with the same starting salary as the other engineering graduates. More ›

Eighth Circuit: Business – Judgment Jury Instruction Is Inappropriate For Claim Under Equal Pay Act

The Eighth Circuit has issued a decision which serves as a clear reminder to employees that the federal Equal Pay Act is a strict liability statute. Basically, this means that an employer may not be able to avoid liability by simply articulating a non-discriminatory reason for its actions, as it could in a Title VII discrimination claim. Rather, when a female employee shows that she was paid less than a male employee for the same work, the employer can avoid liability under the Act only by affirmatively proving that it had a justification for the disparity in pay.  More ›

Female Manager may Proceed with pay Disparity-Gender Discrimination Claim

The concept of equal pay for equal work seems simple to understand and apply. If Jan and Joe have similar education, skills, and experience, and perform similar work, it is reasonable to assume that their pay is also the same. Unfortunately, this is not always the case, even though the Equal Pay Act has been on the books for nearly 50 years. The Seventh Circuit recently dealt with this issue in King v. Acosta Sales & Marketing, Inc.. (11-3617, Mar. 13, 2012). Plaintiff, a sales manager, performed the same duties and responsibilities as her male peers and was highly successful—in fact, more successful than many of them, yet, her salary, both when she started and when she ended her job, was substantially lower than that of her male co-workers. The numbers were shocking disproportional, with the highest paid male sales managers often earning two to three times more than she made. More ›