New York Governor Kicks Off U.S. Women’s Soccer Team’s Ticker-Tape Parade with Equal Pay Legislation

On the heels of the U.S. Women’s Soccer Team’s World Cup win, Governor Andrew Cuomo on July 10, 2019, signed into law two bills that expand New York’s existing equal pay laws.

In enacting two of the three equal pay bills passed by the New York Legislature, New York joins other states in expanding the bases for compensation discrimination claims and restricting salary history inquiries. (E.g., Colorado Enacts Comprehensive Equal Pay Law and Alabama Passes New Pay Equity Act.)

New York’s S. S5248A prohibits unequal pay on the basis of all protected characteristics, not just gender. Under New York law, this includes, age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or domestic victim status. The new law also expands the potential comparators under the law by prohibiting compensation discrimination among employees who are engaging in substantially similar work, when viewed as a composite of skill, effort, and responsibility and performed under similar working conditions.

The second bill, S. S6549, prohibits employers from relying on the wage or salary history of an applicant in determining whether to offer the applicant employment or in determining the wages or salary of such individual. It also prevents employers from orally or in writing requesting salary history of an applicant or employee in determining whether to offer employment or the amount of salary to be offered. There is also a provision prohibiting employers from retaliating against applicants or employees because they refused to provide salary history or filed a complaint with the New York Department of Labor.

Please contact a member of the Jackson Lewis Pay Equity Resource Group with any questions. We will continue to monitor and report on this and other developments in equal pay laws.

 

Data System Security Info and File Specifications Added to EEO-1 Pay Data Reporting Website

As July 15th draws closer, EEOC and NORC are ramping up for opening of the EEO-1 Component 2 Pay Data reporting portal. As part of these efforts, they are consistently providing new information on the reporting obligation.

Please find the rest of this article on our Affirmative Action & OFCCP Law Advisor blog here.

Additional Insights on the New Updated EEO-1 Component 2 Pay Data Materials

As we previously reported, on July 2, EEOC updated the its newly created website with long-awaited materials regarding the obligation of employers with 100 or more employees (or contractors with 50 or more employees) to submit pay data and hours worked data as part of the annual EEO-1 reporting obligations.

Please find the rest of this article in our Affirmative Action & OFCCP Law Advisor blog here.

EEO-1 Pay Data Alert: EEOC Adds Materials and FAQ Answers to Website

As we approach the July 15 date on which EEOC expects to open the portal to file EEO-1 Component 2 pay data reports, EEOC has at long last provided us with guidance materials:  https://eeoccomp2.norc.org/faq.html.

Please find the rest of this article in our Affirmative Action & OFCCP Law Advisor blog here.

California Pay Data Reporting Advances: EEOC May Not Be Alone for Long

The recent focus on the EEOC’s new Component 2 to its EEO-1 Report has been undeniable. It requires employers report on the race, ethnicity, sex, job type, pay, and hours worked data of its employees.

OMB approved this data collection during the Obama Administration. Then, under President Donald Trump, the OMB reversed course, staying the obligation. In response, the National Women’s Law Center sued to reinstate it. Earlier this year, the District Court overturned the stay – requiring employers, again, to disclose employee pay. While the OMB has appealed this decision, EEOC is on track to begin collecting this detailed race-, ethnicity-, and sex-based pay data soon.

With all this activity at the national level, it would be easy to miss the other mandatory EEO pay data reporting obligations advancing.

California – estimated to be the fifth largest global economy – is quietly advancing its own race- and sex-based pay data reporting requirement. Introduced in January 2019, Senate Bill 171 passed the California Senate on May 22. On June 26, it began its path through the Assembly with hearings in the Labor and Employment Subcommittee.

In its current form, SB 171 would require private employers with at least 100 employees to submit an annual report for each establishment to the California Department of Fair Employment and Housing (DFEH). The bill would require the DFEH to make the reports available, upon request, to the California Division of Labor Standards and Enforcement, the state agency tasked with enforcement of the state’s wage and hour laws.

Much like the EEO-1 Report’s Component 2, each proposed California report would contain employee pay data broken down by race, ethnicity, and sex within specified job categories. In fact, the two requirements are so similar that, in its current form, SB 171 would permit employers to submit their EEO-1 Report Component 2 to satisfy the contemplated state-level reporting obligation.

The Jackson Lewis Pay Equity Resource Group will continue to monitor and report on these developments, but please reach out to a Jackson Lewis attorney with any questions.

New York Adopts Laws Aimed at Combating Salary Inequality and Race Discrimination

In the final days of its 2019 Session, the New York State Legislature passed three bills that, respectively, will bar employers from inquiring about applicants’ past salary history, prohibit wage differentials based on protected class status, and ban race discrimination based on an employee’s hair or hairstyle. Governor Andrew M. Cuomo is expected to sign these bills.

Please find the rest of this Jackson Lewis legal update here.

EEO-1 Component 1 Down … Component 2 Pay Data Up Next

The May 31, 2019, deadline for filing EEO-1 Component 1 race-and-gender data has come and gone. The portal for filing Component 1 data will remain open for several more months, however, and there are no fines or penalties for filing late.

EEO-1 Component 2 pay-and-hours-worked data is due by September 30, 2019 (the same day federal contractor VETS-4212 reports are due). However, employers will find nothing on EEOC’s website regarding Component 2. For now, only the draft materials and sample forms EEOC published in 2016 are available. For a copy of those materials, please contact this blog’s author through the link above or at Christopher.Chrisbens@jacksonlewis.com.

EEOC expects to publish updated materials before the opening of the EEO-1 Component 2 filing portal in mid-July. When open, the portal will be https://eeoccomp2.norc.org/. EEOC states that it hopes to have an operational helpdesk soon. It will be at EEOCcompdata@norc.org and (877) 324-6214.

Filers should keep in mind the following points for successfully completing the required reports:

  • Two Reports – 2017 and 2018: covered employers will file two reports; one using the 2017 Component 1 workforce snapshot, and the second using the 2018 workforce snapshot used for 2018 Component 1.
  • W-2, Box 1 Pay Data: Contrary to the mistaken heading in the draft 2016 forms, do not file “Annual Salary” data. Rather, use 2017 and 2018 yearend W-2, Box 1 pay data to slot each snapshot employee into one of the 12 pay bands in each EEO category.
  • Hours Worked: For non-exempt workers, report aggregate hours worked (or on call) for the number of employees in each cell. Hours worked means just that – excluding paid time on leave, vacation, PTO, and the like and not working. For example, if there are 5 non-minority women in the second pay band in EEO category 3 Technicians, aggregate the total number of hours these women worked for the calendar year in the corresponding cell.

For exempt workers, assume that each full-time employee works 40 hours per week and multiply 40 hours per week by the number of weeks in the calendar year each worker was “employed” by the reporting company. No need to exclude non-work hours. For part-timers, assume each worked 20 hours per week and multiply by the number of weeks “employed.” For example, if there are 5 Black men in the first pay band of EEO category 2 Professionals, calculate for each employee 40/20 hours/week multiplied by the number of weeks he was employed, aggregate the figures for the 5 men, and provide that data in the appropriate cell.There will be much work involved to pull the pay, hours worked, and race/gender data from multiple systems, reconcile the data, and determine hours worked and weeks employed.We will provide updates as they are available. If you need assistance with EEO-1 reporting, or pay equity analyses, please contact your Jackson Lewis attorney.

 

Alabama Passes New Pay Equity Act

Yesterday, Alabama’s Governor, Kay Ivey, signed a new law that would prohibit employers from paying less for the same work on the basis of gender or race. After both the House and the Senate approved the bill, it was sent back with an executive amendment from Governor Ivey on May 30, 2019. Upon approval of that amendment by the Alabama House and Senate, the law just received the necessary executive signature for enactment. With the passage of this law, titled the Clarke-Figures Equal Pay Act, only Mississippi remains without any state equal pay legislation in place.

Employers should be aware that the new law allows for differences in pay for the same work when based on reasons such as seniority or a merit system. Further, such differences may be supported by any system that measures earnings by the quantity or quality of production or a differential that is “based on any factor other than sex or race.”

Any employee filing a claim for unequal pay against his or her employer bears the burden of pleading with particularity that (1) the employee was paid less for the same work despite possessing equal skill, effort, education, experience and responsibility, and (2) the applicable wage schedule does not correlate to any conditions permissible under the Act.

The Clarke Figures Equal Pay Act also mandates that employers may not refuse to interview, hire, promote or employ any applicant or retaliate against any applicant because that applicant does not provide a wage history.

Any violations of either the unequal pay subsection or the mandate preventing actions based on a failure to provide a wage history would require the employer to pay the employee all monies owed, plus interest. Employees will have two years from the alleged act of discrimination to file a lawsuit.

The new law also requires employers to adopt the rules for record keeping established under the Fair Labor Standards Act. The Clarke-Figures Equal Pay Act will take effect September 1, 2019.

Colorado Passes Comprehensive Equal Pay Law

Colorado Governor Jared Polis has signed what is one of the toughest enhanced state pay equity laws to date. Colorado has become the tenth state in the country to pass an equal pay law that is more demanding than federal law. The new law goes into effect on January 1, 2021.

Just before the close of the legislative session on May 22, and after months of debate and considerable amendment, two Republicans joined Colorado Senate Democrats in passing the “Equal Pay for Equal Work Act” (SB 19-085). It shares similarities with other enhanced state equal pay laws, including provisions on pay equity, pay history, and pay transparency. However, unlike other states, the Colorado law contains unique notice requirements.

Unique to Colorado

The Colorado Equal Pay for Equal Work Act includes the following two notice requirements, which are found in no other state equal pay law:

  • Employers must make reasonable efforts to announce, post, or make known all opportunities for promotion to all current employees on the same calendar day.
  • Employers must disclose in each posting for each job opening the hourly or salary compensation, or a range of the hourly or salary compensation, and a general description of all benefits and other compensation offered.

Key Provisions

The new law protects against discrimination because of sex (including gender identity) or sex in combination with another protected status. Employers may not pay an employee of one sex less than an employee of another sex for substantially similar work.

However, an employer can avoid legal liability under the new law if it demonstrates that the entire difference in compensation is based on at least one of the following:

  1. A seniority system;
  2. A merit system;
  3. A system that measures earning by quantity or quality of production;
  4. The geographic location where the work is performed;
  5. Education, training, or experience to the extent that they are reasonably related to the work in question; or
  6. Travel, if a regular and necessary condition of the work performed.

The new law creates a private right of action for employees. A successful plaintiff may recover up to three years of back pay and liquidated damages in the amount of the back pay, unless the employer can show the “act or omission giving rise” to the pay violations was made in good faith.

Mini-Safe Harbor

Similar to equal pay laws in Massachusetts and Oregon, the Colorado law provides an incentive for employers to conduct proactive self-evaluations of their compensation practices. While not a complete defense against lawsuits, employers may use evidence of a “thorough and comprehensive pay audit” with the “specific goal of identifying and remedying unlawful pay disparities” to avoid an award for liquidated damages.

Pay History

Colorado joins nine other states with statewide salary history bans applicable to both public and private employers.

Under the new Colorado law, employers may not:

  1. Seek the wage history of a prospective employee;
  2. Rely on the wage history of a prospective employee to determine a wage rate; or
  3. Discriminate or retaliate against a prospective employee for failing to disclose wage history.

Pay Transparency

Finally, the new law prohibits employers from preventing their employees from discussing compensation information with others, or requiring any employee to sign a waiver that prohibits his or her ability to do the same.

***

Employers in Colorado should consider reviewing their pay policies and practices with employment counsel and stay tuned for further compliance updates. Please contact a Jackson Lewis attorney with any questions related to this and other workplace developments.

LexBlog