EEOC Must Keep Pay Data Reporting Portal Open

Despite its request to close the pay data reporting portal, Judge Chutkan has ordered EEOC to continue to keep the EEO-1 Component 2 Pay Data Reporting Portal open to allow more filers to submit their pay data.  The Order states, despite the acknowledged expense, that EEOC “must continue to take all steps necessary to complete the EEO-1 Component 2 data collection for calendar years 2017 and 2018 by January 31, 2020.”

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

Survey Says Employers are ‘Taking Action on Pay Equity Management’

A majority of employers (60%) are not only conducting analyses to identify and address pay equity issues, but are conducting analyses with the objective of “resolving the root causes” of identified pay inequities, according to “Pay Equity Practices – Survey of C-Suite and Reward Leaders” from WorldatWork and Korn Ferry.

Recent media reports on government agency pay discrimination settlements, ranging into the millions of dollars, show that they typically date to pay practices at least several years in the past. But, if the survey findings hold up, such pay equity settlements may decline in the future.

The WorldatWork and Korn Ferry report says employers are taking action for a number of reasons:

  • “Build/maintain a culture of organization trust”
  • “Remove bias from programs and practices”
  • “Because it makes business sense to do so”

Survey results reveal pay analyses initiatives typically are driven by the C-Suite or Human Resources. The report notes, “The legal function, while not owning the process are often an integral part of the team, esp., in larger organizations.” The bottom line is pay equity analyses can be protected by the attorney-client privilege only if the analyses are conducted at the direction of counsel for the purpose of providing legal advice and are kept confidential.

On confidentiality and disclosure of analyses results, the report states, “Most organizations broadly communicate the intent and general findings of the pay equity analysis to senior leaders, followed by people managers.” It also notes that only a “minority of organizations provide broad-based communications to employees.” Decisions about whether and to what extent to communicate analyses results are fraught because employers cannot publicize results while maintaining the attorney-client privilege.

The report makes many recommendations, including:

  • Doing nothing is becoming less of an option
  • Consider external resourcing to ensure organization capability gaps are covered:− External statisticians for robust analytics
    • External legal counsel to protect privileged communications and legal expertise
    • External compensation consultants for strategic / complete project management
  • One and done is not sufficient: “Conduct annual reviews to identify potential pay disparities across protected class groups”

Please contact a Jackson Lewis attorney or a member of the Pay Equity Resource group for assistance with proactive pay analyses.

EEOC Seeks Court Permission to Deem Pay Data Reporting Complete

In the next chapter of the pay data reporting saga, the EEOC has filed a Motion with the court seeking an order “determining that the EEO-1 Component 2 data collection is deemed complete.”  The EEOC is reporting that, “as October 8, 2019, 75.9% of eligible filers had submitted Component 2 data.”

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

Illinois Equal Pay Act Mandates to Take Effect September 29

Amendments to Illinois’ Equal Pay Act (EPA) go into effect on September 29, 2019, leaving employers little time to adjust their hiring practices. 

No Inquiries into Salary History. Under the amended EPA, employers and employment agencies may not: 

  • Screen applicants based on their current or prior wage or salary history, including benefits or other compensation;
  • Request or require an applicant’s salary history as a condition of being considered for  employment; or
  • Request or require that an applicant disclose his or her salary history as a condition of employment. 

Employers also are prohibited from seeking an applicant’s salary history from an applicant’s current or former employer.

Employers are not prohibited however, from (i) providing information about the compensation or benefits of a position, or (ii) discussing an applicant’s expectations about compensation or benefits. An employer also would not violate the EPA if a job applicant voluntarily discloses his or her current or prior compensation, provided the employer does not consider the voluntary disclosure in deciding whether to offer the applicant employment or in setting compensation.

An employer found to have violated the law may be subject to: 

  1. Damages;
  2. Special damages not to exceed $10,000;
  3. Injunctive relief;
  4. Costs and reasonable attorney’s fees; and
  5. Civil penalty not to exceed $5,000 for each violation for each employee affected.

In order to avoid fines and lawsuits, companies recruiting in Illinois should remove any questions about an applicant’s previous pay or benefits from their job applications and any related documents, both on-line or in hard copy.

No Restrictions on an Employee’s Own Disclosure. The new law prohibits employers from requiring employees to sign contracts or waivers preventing them from disclosing information regarding their own wages, salary, benefits, or other compensation. Employers, however, may prohibit Human Resources personnel from disclosing other employees’ wage information without first obtaining written consent. 

Broader Definition for “Comparators.” The new law expands the definition of applicable comparators. Previously, the Act prohibited pay discrimination where employees were performing substantially similar work on jobs that required “equal skill, effort and responsibility.” The amended Act refers to employees who are performing substantially similar work on jobs requiring “substantially similar skill, effort, and responsibility.” 

Limited Exceptions to Equal Pay Treatment. Under the previous law, exceptions for pay differentials mirrored the federal Equal Pay Act and could be based on: i) seniority; ii) merit; iii) measures of earning based on quantity or quality of production; or iv) a factor other than sex, race, or unlawful discrimination. Under the amended law, any factor other than sex, race, or a factor that would constitute unlawful discrimination must also: (i) not be derived from a differential in compensation based  on sex, race, or another protected characteristic; (ii) relate to the job or business needs; and (iii) actually account for the differential. 

More information can be found in our other articles on the Illinois EPA. Members of Jackson Lewis’ Pay Equity Resource Group can also offer guidance to employers to ensure compliance with the law’s amended provisions.

Pay Equity Challenges Continue: EEOC Sues Nursing Home for Paying Female Nurse Less

Pay equity challenges continue to make the news in the healthcare setting, primarily in the context of physician pay equity gaps. This month, the journal Pediatrics published data from the American Academy of Pediatrics’ Pediatrician Life and Career Experience Study (PLACE), which included 1,000 physician responses on income and 1,300 responses on household responsibilities. The income data (from 2016) showed that female pediatricians were paid only 76 percent of their male peers’ income.

Please find the rest of this article on our Healthcare Workplace Update here.

Update: EEO-1 Component 2 Portal to Remain Open

In its most recent required status report to the court, filed September 27, 2019, the EEOC reports:

“[s]o long as the Court’s order is in effect stating that the collection will not be complete until it reaches what the Court has determined to be the target response rate, the EEOC will continue to accept Component 2 data for 2017 and 2018.

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

Like EEO-1 Component 2, California Pay Data Reporting Stalls

With the future of the EEOC’s pay data collection efforts unclear, California’s effort to legislate its own race- and sex-based pay data reporting requirements likewise has stalled, for now.

Since July, California’s Senate Bill 171 (requiring private employers with at least 100 employees to submit an annual report of employee pay data broken down by race, ethnicity, and sex within specified job categories) has stalled. After the Judiciary Subcommittee passed and referred the bill to the Appropriations Committee, it was placed on the Appropriation Committee’s “Suspense File,” where bills with annual costs above $150,000 are held until the state budget has been prepared. At the hearing on August 30, the bill failed to garner sufficient votes to pass out of committee before the legislative session adjourned on September 13.

Failing to clear the necessary hurdles before the end of the legislative session, the bill must be reintroduced when the legislature reconvenes on January 6, 2020. It is unclear whether the pay data reporting bill will be reintroduced by Senate Bill 171’s sponsor Senator Hannah-Beth Jackson, another advocate in the upcoming session, or at all.

The Jackson Lewis Pay Equity Resource Group will continue to monitor and report on these developments, including whether some version of the pay data reporting bill is reintroduced when the California state legislature reconvenes. Please reach out to a Jackson Lewis attorney with any questions.

The Future of The EEO-1: What Does EEOC’s Information Collection Really Mean?

As we previously reported , EEOC has filed notice asking for renewed approval to collect EEO-1 Component 1 race, gender and ethnicity workforce data for the next three years (2019, 2020 & 2021), but is not seeking renewed authority to collect Component 2 pay data and hours worked. To be clear, this filing does not impact the current obligation employers have to submit 2017 and 2018 pay data by September 30, 2019.

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

Breaking News: EEOC Will Not Seek Renewal of Pay Data Collection At This Time

As previously reported, EEOC is expected to publish tomorrow a Notice of Information Collection regarding EEO-1 Reporting.  An advance copy of the notice reports that “the EEOC is not seeking to renew Component 2 of the EEO-1.” Instead, the Commission has concluded it should consider information from the current Component 2 collection before deciding whether to submit a renewed pay data collection to OMB for approval.

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

The Future of Federal Pay Equity Law, According to Democratic Presidential Candidates

State pay equity laws, in large part, have been a response to a perception that the federal government is not acting effectively or quickly enough to address gender and race pay gaps. Not surprisingly, several democratic presidential candidates have staked out platforms on how they will address pay inequities at the federal level – some more specific than others.

The candidates’ platform themes include:

  • Requiring federal contractors to periodically report pay and diversity data, and withholding federal contracts from employers with poor records advancing diversity and pay equity;
  • Compelling employers to report diversity statistics regarding representation and pay of women and men in leadership positions, including a focus on promotional opportunities;
  • Requiring employers to obtain “Equal Pay Certification” by proving pay equity between men and women. According to one candidate, employers with at least 100 employees would be required to obtain Equal Pay Certification from the EEOC within three years and every two years thereafter. Employers with at least 500 employees would have two years to certify;
    • Under this plan, employers unable to prove pay equity would be fined for every one percent gap in pay, after accounting for job titles, experience, and performance;
    • Equal Pay Certification would first be required of federal contractors pursuant to an executive order;
  • Reporting of gender and race pay gaps, regardless of job title, experience, or performance.
  • Banning salary history inquiries and the use of prior salary to determine starting pay;
  • Raising the minimum wage to $15 per hour;
  • Banning forced arbitration of employer-employee legal disputes, including pay disputes;
  • Enacting family leave requirements; and
  • Working to pass the federal Paycheck Fairness Act in the U.S. Congress.

Two basic themes are apparent: compelling employers to be more transparent in their pay practices will draw attention and action to address pay equity issues; and paying attention to pay equity alone is not enough if women and minorities are not well-represented at all workforce levels.

The Democratic candidates are following existing pay equity strategies and themes of the states, as well as of countries in the European Union. Of course, while no one can predict outcomes of elections, whether at the federal or state level, efforts to address pay equity are not likely to die down anytime soon.

Please contact a Jackson Lewis attorney or a member of the Pay Equity Resource group for assistance to proactively address pay equity questions.