Virginia’s New Pay Transparency Law

Virginia has adopted a pay transparency law that prohibits employers from discharging or taking any other retaliatory action against an employee for discussing wages or compensation with another employee. The new law was passed on April 22, 2020, and becomes effective on July 1, 2020.

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

New Jersey Division on Civil Rights Releases Enforcement Guidance on State Equal Pay Act

The New Jersey Division on Civil Rights (DCR) has released a 25-page guidance explaining its enforcement policies with respect to the state’s equal pay law. The guidance provides much-needed direction to companies navigating the pitfalls associated with compensation systems and policies.

The guidance addresses questions ranging from multistate employees to affirmative defenses to the role of employer self-evaluations in the agency process.

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

Prior Pay No Defense to Pay Difference Under Equal Pay Act, Ninth Circuit Reaffirms

Prior pay, alone or in combination with other factors, is not a job-related “factor other than sex” that can be used to justify a difference in pay under the Equal Pay Act (EPA), a majority of judges on the U.S. Court of Appeals for the Ninth Circuit has held again. Rizo v. Yovino, No. 16-15372 (Feb. 27, 2020).

The Court previously reached this conclusion in 2018. On appeal to the U.S. Supreme Court, the Supreme Court remanded the case because the authoring judge (Judge Stephen Reinhardt) passed away before publication of the opinion.

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

BREAKING NEWS: Pay Data Portal Ordered Closed

It seems the end has finally come for at least one part of the pay data reporting story.  On Monday, February 10, Judge Chutkan ordered the EEO-1 Component 2 pay data reporting portal closed.  The closing of the portal signals the end of the required collection of pay data for 2017 and 2018 from eligible employers.

The direction for the next turn in the story hinges on what EEOC decides to do about collecting pay data going forward.  Stay tuned.

EEOC Renews Request to Close Component 2 Pay Data Portal

EEOC has filed another Motion with the court seeking an Order deeming Component 2 pay data collection complete.  In its most recent filing, EEOC requests the Court to revisit its previous decision and deem the collection obligation satisfied or, in the alternative, provide clarification “regarding the response rate at which the Court will deem the EEOC’s collection to be complete.”  As a reminder, EEOC’s previous motion requesting the permission to close the portal was denied.

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

Jury Finds Against Female Physician’s Unequal Pay Claims

A federal jury in Iowa has rejected Equal Pay Act claims by a female physician alleging she was paid less than her male colleagues in the same network for performing substantially equal work under the same compensation formula. Bertroche v. Mercy Physician Assoc., Inc., No. 1:18-cv-00059 (N.D. Iowa Nov. 13, 2019).

The jury also found the physician network that employed her did not breach her employment agreement. After a six-day trial, the federal jury deliberated for less than three hours before delivering a complete defense verdict.

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


Latest Update from EEOC on Component 2 Pay Data Reporting

Following the most recent Court Order, EEOC has provided the court with a current update as to its compliance with the Court’s Order that it continue to keep the EEO-1 Component 2 pay data reporting portal open.  The Court has ordered the portal remain open until at least January 31, 2020 to allow additional filers to submit their reports.

In its report EEOC detailed the efforts made to contact companies that have not yet completed their filings as well as the updated notice now posted on the EEO-1 Component 2 filing website that the portal will remain open.

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

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.