Mind the (Gender & Race) Gap

When we think about the “pay gap,” often only the disparity between genders comes to mind – the disparity in pay between all males and all females. It is not the only gap employers should be mindful of. For example, Black Women’s Equal Pay Day, which this year fell on August 7, shines a spotlight on wage inequities based on race and gender.  Black Women’s Equal Pay Day marks how long a black woman has to work into 2018 to earn the same amount as a white male. On August 7, news stations published articles, #BlackWomensEqualPayDay was trending on Twitter, and celebrities spoke out about the issue. Pay equity has been a hot-button issue, especially at the state and local levels.

Pay equity by race and gender has been the subject of state fair pay laws. The laws passed in New Jersey, Oregon, and California, for example, prohibit pay discrimination not only on the basis of sex, but also on the basis of other protected characteristics, including race.

What does this mean for employers? Mind the gap. While suggested actions depend on the state(s) in which each employer operates, as each state law is different, employers can consider taking some general steps:

  • Understand how compensation is set and strive for consistency in carrying out compensation policies.
  • Document the reasons for pay decisions, as appropriate, in case they are challenged. If Amy is paid less than others with a similar job because Amy doesn’t have the same certificates, for example, be sure to note that Amy doesn’t have the preferred certificates. Be ready to defend disparities in pay with valid reasons.
  • Consider conducting a privileged, proactive pay equity analysis with qualified legal counsel to identify and resolve potential issues before they arise.

Please contact Jackson Lewis for compliance and other assistance.

Physician Pay Equity Issues Are Under the Microscope

As our Healthcare Workplace Update reported on June 21, and as is the case across many industries, issues related to physician pay equity are receiving increased attention nationwide.

Doximity’s 2018 Physician Compensation Report (its second annual report) contained key national findings on the gender wage gap that point to widespread disparities in physician compensation. Please find the rest of this article in our Healthcare Workplace Update here.

New Jersey Issues Equal Pay Data Reporting Instructions and Forms

The New Jersey Department of Labor and Workforce Development has issued two reporting forms for the new Diane B. Allen Equal Pay Act: Contracts for Qualifying Services and Contracts for Public Works. To assist contractors with filing the forms, the state also has issued Instructions.

The Equal Pay Act went into effect on July 1, 2018. Among many provisions, the Act requires pay data reporting by employers that provide services to New Jersey and its agencies or that perform construction work on New Jersey public works projects.

  • Service Contractors: Every employer (including those outside New Jersey) providing services to the state or any state agency or instrumentality must report compensation and hours worked data for those employed in in the state working in connection with the contract.
    • The data provided must include: gender, race, job title, ethnicity, occupational and job category (EEO-1 Code), and total compensation.
  • Public Works Contractors: Similarly, every employer (including those outside New Jersey) that enters into a public works contract (not including contracts for goods or products) must provide data. Bottom line: public works contractors must add employee sex, race, and ethnicity data to their weekly Prevailing Wage Act reports.

The Instructions add some clarifying information:

  • As with EEO-1 reports, contractors providing services must file reports annually by March 31 for the preceding year, using employment figures from any pay period in October through December.
  • Also consistent with EEO-1 reporting, if an employee declines to voluntarily self-identify sex, race, or ethnicity, the contractor must use employment records or observer identification to provide the identification.
  • Regarding sex (gender), the state allows a “non-binary category.”
  • For service contractors, the pay data reporting requirements revive those proposed for EEO-1 pay data reporting, which the Trump Administration subsequently rejected.
    • Contractors report for each employee annual earnings from the federal W-2 form, Box 1.
    • Contractors report employee earnings in 12 pay bands.
    • For employees that are not exempt from the Fair Labor Standards Act (FLSA), employers must report the actual number of hours worked by each employee.
    • For FLSA-exempt employees, contractors may report actual hours worked (if tracked) or proxy numbers of 40 hours and 20 hours per week for full- and part-time employees, respectfully.

The Equal Pay Act is not clear regarding how the Department or the Division of Civil Rights may proactively use reported pay data. However, the Department will make the data available, upon request, to “anyone who is or was an employee of the employer during the period of any of the contracts between the employer and any public body, or [to] any authorized representative of the employee.” Thus, regardless of how the state may proactively use the reported pay data, your employees will have access to it for their own purposes.

Please review the actions we suggest employers take to proactively prepare for the Act’s requirements. Jackson Lewis attorneys are available to assist employers as they navigate the Diane B. Allen Equal Pay Act, including pay data reporting.

California Clarifies Ambiguous Language of Salary History Ban

California has enacted new legislation aimed at clarifying its law banning an employer from inquiring about a job applicant’s salary history information.

Assembly Bill 168 (codified as Labor Code Section 432.3) prohibits employers from seeking salary history of applicants for employment. Designed to eradicate the wage gap, AB 168 also requires employers to provide applicants, upon reasonable request, with the pay scale for the position.

Since the salary history ban’s enactment in January 2018, employers have struggled to understand the restrictions it imposes, as it fails to define key terms, such as “applicant,” “reasonable request,” and “pay scale.” On July 18, 2018, Governor Jerry Brown signed into law Assembly Bill 2282 to clarify the intended meaning of these terms.

AB 2282 defines “applicant” or “applicant for employment” as an individual who is seeking employment with the employer and is not currently employed with that employer in any capacity or position.

It defines “pay scale” as a salary or hourly range and provides that a “reasonable request” for such pay scale is a request made after an applicant has completed an initial interview.

AB 2282 additionally seeks to address the legality of an employer’s questions related to an applicant’s expected salary. Although several local ordinances adopting salary history bans permitted employers to inquire about such information, AB 168 was silent on the issue. AB 2282 expressly provides that employers are not prohibited from asking an applicant about his or her salary expectation for the position being applied for.

Finally, AB 2282 authorizes employers to consider a current employee’s existing salary when making a compensation decision, so long as any disparity resulting from that decision is justified by a seniority system, merit system, or other bona fide factor unrelated to the employee’s sex, race, or ethnicity.

Employers should revisit and revise their hiring practices and policies to ensure compliance with the laws in the states in which they operate. Jackson Lewis attorneys will continue to monitor pay equity developments. Please contact us with any questions about the potential implications of AB 2282 or other legal developments.

What Employers Need to Know about San Francisco’s Salary History Ordinance

San Francisco’s “Parity in Pay Ordinance,” prohibiting employers from inquiring about a job applicant’s salary history, took effect on July 1, 2018. This post discussed significant provisions of the ordinance as well as key considerations for employers to ensure compliance with the new regulation.

The San Francisco measure follows several states’ and cities’ enactment of similar regulations designed to address wage disparities. See Considerations for Employers in Massachusetts, Countdown to New Jersey’s Diane B. Allen Equal Pay Act, and Connecticut Bans Inquiries into Applicants’ Wage and Salary History. Following the passage of San Francisco’s Parity in Pay Ordinance, California’s Equal Pay Act (EPA) was amended in 2017 to prohibit employers from asking job applicants about salary history.  The California salary history prohibition largely mirrors the San Francisco ordinance with some differences, as noted below.

What employers are affected?

  • Employers who conduct business in San Francisco are governed by the ordinance.

What types of inquiries are prohibited?

  • Employers may not inquire about or consider the current or prior salary history of a job applicant in determining whether to hire the applicant or the salary to offer them.

What if an applicant volunteers his or her salary history information?

  • The bar applies even if an applicant voluntarily discloses his or her prior salary history. Employers are prohibited from using the information, regardless of whether it is voluntarily disclosed, when making hiring or promotion decisions.

What if I am asked by another employer to share a former employee’s salary information?

  • Under the ordinance, employers are prohibited from disclosing a current or former employee’s salary history without authorization from the employee, unless the salary history is publicly available or the disclosure is required by law. Employers should exercise caution when responding to salary history inquiries to ensure compliance with this prohibition. Employers may conduct background checks that may disclose salary information, but are prohibited from using such information in considering the applicant for the position.

As an employer, am I required to notify employees of this change in the law?

  • Employers are required to post notice of the ordinance at the job or on the worksite.

What happens if I am accused of violating the ordinance?

  • Employers have a one-year grace period – until July 2019 – in which they will be issued a warning and notice to correct any suspected violations. Employers may also appeal Office of Labor Standards Enforcement (OLSE) determinations to a hearing officer.

Can I discuss salary expectations with potential applicants?

  • Notably, the San Francisco ordinance differs from California’s Equal Pay Act in that it specifically states that employers may engage in discussions with applicants about salary expectations, as long as all other provisions of the ordinance are followed. California’s EPA, similar to the ordinance in most other regards, is silent on this issue.

What should I do now?

Employers should stay up to date on pay equity developments and regularly revisit and revise their hiring practices and policies to ensure compliance with the law. Consider retraining all employees involved in the hiring process on the provisions of the law. Consult with a member of Jackson Lewis’ Pay Equity Group for assistance with evaluating and revising your policies.

Hawaii on Board with Pay Transparency and Salary History Ban

Hawaii will be joining the salary history ban trend beginning in 2019. On July 5, Governor David Ige signed into law a bill seeking to address the pay disparity between men and women who perform similar work.

Effective January 1, 2019, Hawaii employers with at least one employee in the state may not ask a job applicant about his or her salary history or rely on the applicant’s salary history in determining salary, benefits, or other compensation during the hiring process or negotiation of an employment contract. Employers also may not bar employees from disclosing their wages or discussing or inquiring about the wages of other employees.

The new law expressly permits certain inquiries. An employer may discuss compensation and benefit expectations with the job applicant and inform the applicant of the proposed or anticipated salary or salary range for the position. The law also provides that “any objective measure of the applicant’s productivity, such as revenue, sales or other production reports” may be discussed with the applicant.

If an applicant “voluntarily and without prompting” discloses salary history information, the employer may consider salary history in determining the applicant’s salary and benefits and may verify the salary history. But employers using such “voluntarily” disclosed salary history information to set compensation must exercise caution because of the risk of litigation over whether the job applicant made a truly voluntary disclosure.

The administrative processes and remedies afforded individuals under Chapter 378 on unlawful discriminatory practices will apply to the salary history ban.

To ensure compliance with the law’s requirements, employers should consider the following best practices:

  1. Remove salary history questions from application forms, interview questions and hiring documents.
  2. Train managers not to ask about an applicant’s pay history during the pre-employment process – when they are screening or interviewing applicants.
  3. Don’t ask for or provide salary history information during reference checks; included in this restriction is other third parties, such as staffing agencies, acting on behalf of the employer.
  4. Remove any prohibitions about salary discussions by employees from written policies.

In addition, for employers who operate in multiple jurisdictions, consider having a uniform practice across all jurisdictions by removing salary history questions during the pre-hire process.

Finally, to help set salaries that are appropriate for the market, consider using salary bands and external resources to research the market value of the position for which you are hiring, and conduct regular audits of your pay practices to ensure internal and external pay equity.

Please contact Jackson Lewis for compliance and other assistance.

Considerations for Employers in Massachusetts

Like New Jersey’s Diane B. Allen Equal Pay Act, the Massachusetts Equal Pay Act (MEPA) amendments went into effect on July 1, 2018. Regarded as one of the first comprehensive fair pay laws to be passed at the state level, MEPA has served as not only as a catalyst, but a model, for the patchwork of fair pay laws being enacted across the nation.

Outlined below are some of the law’s main components and best practices employers can implement to comply and mitigate risk.

Comparable Work

MEPA requires equal pay for “comparable work.” Under MEPA, “comparable work” is defined as work that “requires substantially similar skill, effort, and responsibility.” This expands the pool of comparators for equal pay claims beyond those in the same job title or function.

  • Tip: Consider which jobs may be “comparable,” despite not being the same. The Attorney General Guidance notes that comparable jobs can span functional areas or business units. Think broadly!

Permissible Differences in Pay

MEPA significantly limits defenses employers can use to justify differences in pay for comparable work. Under MEPA, differences can be explained only by:

  1. A seniority system;
  2. A merit system;
  3. A system measuring earnings by quantity or quality of production;
  4. Geographic location;
  5. Education, training or experience; and
  6. Travel that is a regular and necessary part of the job.
  • Tip: Be ready to prove a valid reason for pay differences. Noticeably absent from the list above is salary history – salary history cannot be used to justify any difference in compensation. Any differences should fall within one of the six buckets above. Train your hiring managers and HR staff accordingly.

Salary History

Employers cannot seek salary history information from a prospective employee unless it is to confirm wage or salary information that has been shared voluntarily by the employee or after an offer of employment has been made.

  • Tip: Plain and simple – do not ask about salary history. Ensure that the question is removed from applications and interview question templates. Communicate this new rule to all managers involved in the hiring process.

Self-Evaluation Defense

Under MEPA, employers can establish an affirmative defense against liability if they conduct a reasonable and good faith self-evaluation of their pay practices. This evaluation must be within the previous three years before an employee files an action and employers must be able to show reasonable progress toward eliminating discriminatory wage differentials.

  • Tip: Consult with counsel and consider conducting a privileged pay analysis to mitigate risk should an employee bring a claim. Also ensure that organizational leaders are on board to make pay adjustments, if determined necessary.

Please contact Jackson Lewis with any questions about MEPA.

Countdown to New Jersey’s Diane B. Allen Equal Pay Act

On July 1, 2018, only ten days from now, the Diane B. Allen Equal Pay Act (Act) goes into effect, broadening New Jersey’s Law Against Discrimination (LAD) to promote equal pay for all employees covered under the law.

The Act, considered one of the most comprehensive and pro-employee equal pay laws in the nation, significantly expands equal pay protections under the LAD and even beyond the federal Equal Pay Act. Under the Act:

  • Pay discrimination prohibitions are not limited to sex but extend to all classes protected by the LAD, i.e., race, creed, color, national origin ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, atypical hereditary cellular or blood trait, pregnancy/breastfeeding, sex, gender identity or expression, disability, or service in the armed forces;
  • Anti-retaliation (“pay transparency”) protections are extended to employees who discuss or disclose information about pay and benefits;
  • Employers may be subject to more severe monetary penalties for violations; and
  • Employees have a longer period of time in which to bring a pay discrimination claim.

For details of the Act, see our article, Double Take: New Jersey Governor Poised to Enact Equal Pay Act.

WHAT SHOULD EMPLOYERS DO BEFORE JULY 1?

Employers that have not already done so should begin to take proactive steps to ensure compliance with the Act and mitigate potential risk.

Review Handbooks/Policies and Revise as Necessary

Employers should review handbooks, policies, employment contracts, and any other personnel documents and remove any terms prohibiting employees from requesting, discussing or disclosing compensation, benefits, and other protected equal pay information, such as job title and occupational category.

Notify and Provide Training to Managers and Recruiters

Employers should ensure managers and recruiters, including third-party recruitment sources, are aware of the Act and company pay transparency policies.

Begin Reviewing Hiring and Compensation Policies

To be able to defend and explain pay and differences in pay, an employer needs to understand how compensation is set. Employers should begin to review hiring and pay policies and practices to ensure employees are receiving equal pay for substantially similar work.

Begin Reviewing Jobs and Job Descriptions

Employers also should begin to review job titles, job responsibilities, and job descriptions to identify which roles may be considered “substantially similar” for pay purposes under the Act.

Consider Conducting a Privileged Pay Equity Analysis

Employers should begin to consider whether to conduct a privileged, proactive pay equity analysis to identify and resolve potential issues before a claim arises.

Jackson Lewis attorneys are available to assist employers as they navigate the Diane B. Allen Equal Pay Act.

Constitutionality of Philadelphia’s Salary History Ban Appealed to Third Circuit

The constitutionality of the Philadelphia ordinance aimed at regulating employers’ requests for and reliance on salary histories has been appealed to the U.S. Court of Appeals for the Third Circuit.

Both the City of Philadelphia and the Chamber of Commerce for Greater Philadelphia appealed U.S. District Judge Mitchell Goldberg’s decision to grant in part and deny in part entry of a preliminary injunction, issued at the end of April. In the 54-page opinion, Judge Goldberg held that the ordinance’s provision banning an employer’s inquiry about an employee’s prior salary violated the First Amendment, but he upheld the ordinance’s prohibition against the use of that information to set rates of pay.

While Judge Goldberg applauded the intent behind the ordinance, he found the City had failed to present sufficient evidence to support its argument that discriminatory pay is perpetuated by an employee’s disclosure of his or her prior wages to a subsequent employer.

The parties each filed their notices of appeal on May 25, 2018. For details of Judge Goldberg’s Opinion and Order, see our article, Philadelphia’s Salary History Inquiry Ban Violates the First Amendment, Federal Court Rules.

This case potentially implicates the state and local salary history bans that have recently passed around the country.

Jackson Lewis attorneys will continue to monitor this case closely and are available to counsel on the potential implications of the First Amendment challenge to Philadelphia’s ordinance.

 

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