Tuesday, July 20, 2010

Do you know? What is the Paycheck Fairness Act are why should employers be concerned?

Today’s USA Today reports that the Obama Administration is going to make a renewed push for the passage of the Paycheck Fairness Act:
President Obama plans to press Congress today to pass pay-equity legislation that would make it easier for women to sue employers who pay them less than their male counterparts, the White House said Monday. “Women deserve equal pay,” White House senior adviser Valerie Jarrett said in an interview, citing government statistics that show women earn 77 cents for every dollar men earn. “It’s a very fundamental right.”
It would be hard to make an argument against this bill if all it did was guarantee equal pay for equal work. The Paycheck Fairness Act, however, goes much further by limiting the ability of businesses to defend against such claims, which should make businesses very concerned that this issue has reached the top of the President’s agenda.

The Paycheck Fairness Act (the full text of which is available here) makes 5 key changes to federal wage and hour laws:
  1. Modified defense. Paycheck Fairness would impede the ability of employers to defend against sex discrimination wage payment claims. An employer can currently defend against an Equal Pay Act claim by showing that the pay difference between men and women was caused by “any factor other than sex.” Paycheck Fairness would alter this standard by requiring employers to show “a bona fide factor other than sex, such as education, training, or experience,” that is not sex-based, but is job-related to the position and consistent with business necessity. Moreover, even if an employer makes this showing, the employee could still prevail by showing that the employer refused to adopt an alternative employment practice that would serve the same business purpose without producing the same wage differential.
  2. Enhanced damages. The current Equal Pay Act’s remedies include back pay and liquidated damages that are capped at the amount of the back pay. Paycheck Fairness would steepen the remedies for sex discrimination in wage payments by allowing for uncapped punitive and compensatory damages.
  3. Non-retaliation. Paycheck Fairness would prohibit an employer from retaliating an employee who inquired about, discussed or disclosed the wages of the employee or another employee, unless discussing wages is part of an employee’s essential job function. While the National Labor Relations Act already covers this conduct, Paycheck Fairness’s enhanced remedies are much more extensive than those available under the NLRA.
  4. Class actions. Paycheck Fairness would change sex discrimination wage payment class actions from “opt in” classes to “opt out” classes, making classes in these cases larger and easier for employees to join.
  5. Reporting. Paycheck Fairness would require the EEOC to issue regulations on the collection of pay information from employers. It would also require the Office of Federal Contract Compliance Programs to use its “full range of investigatory tools” for investigation, compliance, and enforcement.
Employers should be very worried about the prospects for Paycheck Fairness. If it passes, employers will face increased risk and higher damages for sex discrimination wage claims. Perhaps the heavier burden, though, will be the significant compliance obligations from newly-empowered federal agencies.