Women’s National Soccer Team Collective Action Against USSF: Settlement, in Part

A lawsuit brought by female professional soccer players against the United States Soccer Federation (USSF) may be settled, partly.

In 2019, female professional soccer players on the United States Senior Women’s National Team, including well-known players like Megan Rapinoe, filed a collective action in federal court in California alleging the USSF violated the players’ rights under the Equal Pay Act (EPA) and Title VII of the Civil Rights Act.

Please find the rest of this article on our Collegiate & Professional Sports Law Blog.

New Illinois Legislation Targets Equal Pay; Requires Detailed Pay Report and New Enforcement Methods

An amendment to the Illinois Equal Pay Act of 2003 requires that, beginning March 23, 2024, employers with more than 100 employees in Illinois must certify compliance with the Equal Pay Act by obtaining an Equal Pay registration certificate from the state Department of Labor.

Under the amendment signed by Governor J.B. Pritzker on March 23, 2021, businesses must pay a $150 filing fee and submit a statement of compliance with equal pay to the Department of Labor for certification. To obtain the certificate, businesses required to file a federal EEO-1 report (generally companies with more than 100 employees) also must include a copy of their most recent EEO-1 report, and additionally submit a list of all employees in the past calendar year, categorized by gender and race/ethnicity with corresponding wages paid to each employee over that period. Figures are to be calculated to the nearest hundred dollars.

Please find the rest of this article on the Jackson Lewis Publications Page.

Patchwork of Pay Transparency Laws Continues to Evolve

State legislatures continue to pass laws designed to enhance pay equity and transparency, with the laws of California and Colorado effective in 2021. The California law requires employee pay data reporting by race and gender, and the Colorado law requires robust pay and promotional transparency.

California

Under California’s pay data reporting law (SB 973), most employers with employees in California must file a report of employee pay data by March 31, 2021.

Please find the rest of this article on the Jackson Lewis publications page.

OFCCP Tagged for Pay Data Collection Role in Newly Proposed Paycheck Fairness Act

As yet another confirmation that pay equity will be a priority for the Biden-Harris administration, the proposed Paycheck Fairness Act has been reintroduced in the U.S. House of Representatives as H.R. 7.  The proposed legislation has a long history but has never been given a vote in the Senate – it last passed in the House of Representatives in 2019.

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

California Publishes User Guide and Templates for Pay Data Reporting

California SB 973 requires employers that (1) file EEO-1 reports and (2) employ more than 100 employees to submit data to the California Department of Fair Employment and Housing (DFEH) annually that shows pay by race and gender for their California employees. It was signed into law on September 30, 2020, and DFEH has been busy providing guidance to employers and preparing the pay data reporting portal.

Additional — perhaps final — guidance was released on February 1. DFEH posted FAQs addressing Professional Employer Organizations and Acquisitions, Mergers, and Spinoffs.

It also released a 68-page User Guide that discuss the mechanics of data submission and provided templates (both in Excel and CSV format) to assist employers in submitting their required pay data.

Key takeaways from the new guidance include:

  • The pay data report will be finalized as a line-by-line report using the provided templates (either in Excel or CSV) or manual entry, depending on the employer’s preference.
  • Each employer will upload only one file.
  • Section One of the file will include overall company information, such as the snapshot period’s begin and end dates, total U.S. and California employees, total U.S. and California establishments.
  • Section Two will include information about each establishment and the employee detail within each establishment.
  • For each establishment, the employer will enter a separate line indicating the number of employees falling into each of the possible 2,520 combinations of job category, pay band, and race/ethnicity/sex.
  • DFEH reiterated that employers’ pay data reporting information will not be made public.

The Data Submission Portal will open on February 15, 2021, and submission is required by March 31.

If you have questions about the requirements under SB 973, would like to discuss how to prepare for this annual pay data report, or would like insight into the possible ways that DFEH may analyze this data submission, please contact a Jackson Lewis attorney.

Jackson Lewis attorneys will continue to monitor California’s pay data reporting and other pay equity issues.

California Announces Pay Data Reporting Portal Will Open by February 15, 2021

California’s Department of Fair Employment and Housing (DFEH) continues to advance toward the March 31, 2021 pay data collection deadline.  When SB 973 was passed in September, DFEH had six months to develop and implement a data collection system that could accomplish the task.  It is delivering.  DFEH issued its first guidance on November 2 and released more FAQs on November 23.  And now, DFEH has again released new FAQs and updated its pay data reporting website.

According to the DFEH, the User Guide and Template are anticipated to be available on February 1, 2021.  In addition, the Data Submission Portal will be available on February 15, 2021.  The new FAQs also cover these, and other, important topics:

  • What pay to include in the report (the value reported in the Box 5 of the employee’s W-2, reflecting “Medicare wages and tips”);
  • What to do if the company issues a corrected W-2 (update the pay data report with the state);
  • Whether it report should include paid time off in the hours worked calculation (it should);
  • How to calculate hours worked for exempt employees (either actual hours worked or number of days worked multiplied by the average number of hours worked per day).

If you have questions about what SB 973 requires or would like to discuss how to prepare for this annual pay data reporting—or even options for assistance with report preparation, analysis, and submission—please contact a Jackson Lewis attorney to discuss.

Jackson Lewis attorneys will continue to monitor California’s pay data reporting and other pay equity issues.

Colorado Department of Labor and Employment Issues “INFO” Guidance on Promotional Opportunities and Job Postings

As anticipated, the Colorado Department of Labor and Employment (CDLE) issued an Interpretive & Formal Opinion (INFO) – “Transparency in Pay and Opportunities for Promotion and Advancement”.  While the INFO is helpful in some respects, CDLE continues to take a hardline on the definition of “promotional opportunity”.

We continue to digest the guidance but the highlights include clarifying that a “promotional opportunity” exists “when an employer has or anticipates a vacancy in an existing or new position that could be considered a promotion for one or more employee(s) in terms of compensation, benefits, status, duties, or access to further advancement.”

Further to this point, the INFO states that:

  • A vacancy in a new position exists when an employer:

(1) adds a position; or

(2) gives an existing employee a new position, including by changing their title, and/or materially changing their authority, duties, or opportunities.

  • A vacancy in a new position includes a lateral job change, or a promotion along a fixed, in-line career trajectory, for which a current employee is eligible.

Based on the following CDLE example, it is difficult to imagine an instance not covered by the Rules:

An employer automatically advances every Apprentice 1 to an Apprentice 2 when the employee passes a competency test. An Apprentice 2 has more advanced duties, higher pay, and access to future promotions unavailable to an Apprentice 1. This advancement is a promotion to a new position because the employer is creating an Apprentice 2 position each time it advances an Apprentice 1. However, if the promotion is promised in writing upon hiring in conformity with EPT Rule 4.2.5(B) , it may be exempt from the duty to provide notice of the promotional opportunity to other employees.

The INFO further confirms that while multi-state employers need not include compensation or benefits in notices to Colorado employees for positions outside of Colorado, it must notify Colorado employees of such promotional opportunities.

We will continue to digest the INFO guidance and provide updates soon.

Additional Clarification on Colorado Pay Transparency Rules Anticipated Soon

We have learned that the Colorado Department of Labor & Employment anticipates publishing next week additional guidance on the Equal Pay Transparency rules’ promotional posting requirements.  In response to a request for clarification around in-line promotions, the CDLE informed us:

We believe your questions will be addressed by a forthcoming Interpretive Notice & Formal Opinions (“INFO”), which we expect to release next week. In addition to addressing your questions, this INFO will provide other clarification on the manner and timing of promotional opportunity notices.

We are anxiously awaiting this additional guidance and hope it will clarify the ambiguities and address the concerns raised by the EPT rules.  We will be sure to let you know when the “INFO” has been published.

California Issues Additional Guidance on What Pay Data Reports will Require

The deadline for employers to comply with California’s pay data reporting requirement (Senate Bill 973) and submit pay data to the Department of Fair Employment and Housing (DFEH) is March 31, 2021.

The DFEH has launched an information page that provides needed clarity on certain obligations and has issued additional guidance on the pay data report’s contents — largely confirming certain assumptions and clarifying other requirements.

Submission will resemble EEO-1 Reports. Employers will report on its workforce by choosing a single pay period between October 1 and December 31 of each “Reporting Year,” referred to as the “Snapshot Period.” The submission will include the number of employees by race, ethnicity, and sex in each of the 10 EEO-1 Job Categories (following the EEO-1 Instruction Booklet) and within each of the “pay bands” used by the U.S. Bureau of Labor Statistics Occupational Employment Statistics classifications (even though California has a higher minimum wage):

$19,239 and under
$19,240 – $24,439
$24,440 – $30,679
$30,680 – $38,999
$39,000 – $49,919
$49,920 – $62,919
$62,920 – $80,079
$80,080 – $101,919
$101,920 – $128,959
$128,960 – $163,799
$163,800 – $207,999
$208,000 and over

The submission also will include:

  1. Total number of hours worked by each employee in each pay band;
  2. “Reporting Year,” “Snapshot Period,” “Report Type (establishment or consolidated),” and total number of reports submitted by the employer;
  3. Employer’s name, address, headquarters’ address (if different), Employer Identification Number, North American Industry Classification System (NAICS) Code, and Dun and Bradstreet Number;
  4. Number of employees inside and outside of California;
  5. Number of establishments inside and outside of California;
  6. Whether the employer is a state contractor;
  7. Name and address of the employer’s parent company or companies, if applicable;
  8. For a multiple-establishment employer’s establishment reports, the establishment’s name, address, number of employees, and major activity;
  9. For a multiple-establishment employer’s consolidated report, the names and addresses of the establishments covered by the consolidated report;
  10. Any clarifying remarks;
  11. Certification that the information is accurate; and
  12. Information on a company contact for the submission.

Multi-establishment employers file multiple reports. Multi-establishment employers must file multiple reports — a consolidated report and one for each establishment.

Employees outside California “count” toward 100-employee threshold. Both California and non-California employees count toward determining if an employer meets the 100-employee threshold. Temporary employees on payroll also “count” toward the 100-employee threshold. Moreover, an employer meets the 100-employee threshold by employing 100 or more employees during the “Snapshot Period” or by regularly employing 100 or more employees during the reporting year. Employers may not cherry-pick their snapshot period to avoid the reporting requirement.

Employers may exclude out-of-state employees from the submission. Not all employees must be included in the pay data reporting. Only “employees assigned to California establishments” must be included, but employers “may report to DFEH on its establishments and employees” outside of California. Employees teleworking from other states but “assigned to” a California establishment must be included in the report for their assigned establishment. Employees teleworking in California but assigned to establishments in other states must be reported in an establishment report covering only “those employees teleworking from California and who are assigned to a single establishment outside of California or all employees assigned to that establishment outside of California.” The DFEH provides the following example:

If an employer has one establishment in California with 50 employees (with three workers telecommuting from Nevada during the Snapshot Period) and one establishment in Nevada with 50 employees (with three workers telecommuting from California during the Snapshot Period), the employer would submit (1) an establishment report for their California establishment that covers all 50 employees, including those teleworking from Nevada; (2) an establishment report for their Nevada establishment that covers either only the employees teleworking from California or all 50 employees assigned to the Nevada establishment; and (3) a consolidated report that includes either all 53 employees in/assigned to California or all 100 employees.

According to the guidance, this flexibility is intended to permit employers to comply in the manner that is least burdensome.

DFEH anticipates option to report non-binary employees. The DFEH also contemplates reporting in a manner that permits California employers to report females, males, and non-binary employees separately.

The DFEH is expected to release additional guidance before the March submission deadline.

Jackson Lewis attorneys will continue to monitor California’s pay data reporting and other pay equity issues. If you have questions about compliance with SB 973 or related pay data reporting contact a Jackson Lewis attorney to discuss.

Final Rules Implementing Colorado Equal Pay for Equal Work Reflect Significant Changes

As anticipated, the Colorado Department of Labor and Employment has released final administrative rules implementing the new Colorado Equal Pay for Equal Work Act.  The final rules reflect comments received in writing and during a live, virtual, public hearing held on November 2, 2020.

Of primary concern to employers were the proposed rules’ job posting requirements for promotional opportunities and compensation disclosure.  The good news is the final rules are dramatically reduced in scope and address many of the concerns received in written comments and during a live, virtual, public hearing held on November 2, 2020.

Of primary concern to employers were the proposed rules job posting requirements for promotional opportunities and compensation disclosure requirement.  Both the scope and the content of the required postings were topics of discussion during the public comment period.  Positively, the final rules provide clarity around what constitutes a “promotional opportunity” and limit the requirement to include compensation information in postings to only those jobs to be performed in, or that are advertised in, Colorado.

Specifically, the final rules:

  • Explain a promotional opportunity which is required to be announced to current employees “exists when an employer has or anticipates a vacancy in an existing or new position . . .“;
  • Clarify that “reasonable efforts” to announce the promotional opportunity are satisfied by posting where employees can access either online or in hard copy and are told where to find the postings or announcements;
  • Provide exceptions to the promotional posting requirement for (1) compelling confidentiality needs, (2) automatic promotion after a specified initial “trial” hiring period, and (3) temporary, acting or interim hires;
  • Clarify that the promotion posting requirements DO NOT apply to employees outside of Colorado; and
  • Clarify that the compensation posting requirements DO NOT apply to jobs to be performed outside of Colorado or postings outside of Colorado.

These rules offer peace of mind to nationwide employers who have been struggling to develop and implement processes and procedures to comply with the requirements of the new law.  However, there are still some ambiguities in the new language that may create questions.  We will keep you updated on developments and interpretations.

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