Timed to commemorate National Equal Pay Day on April 12, various lawmakers reintroduced the Paycheck Fairness Act (H.R. 1519, S. 797) and the Fair Pay Act (H.R. 1493, S. 788), bills that would amend the Fair Labor Standards Act (FLSA) to promote pay equity. The first measure, the Paycheck Fairness Act, would amend the FLSA to provide for potentially unlimited compensatory and punitive damages in gender-based wage discrimination cases and weaken an employer’s affirmative defense against such claims, among other things. As previously discussed in this blog, the measure would:

• Expand damages under the Equal Pay Act to include potentially unlimited compensatory and punitive awards.
• Prevent employers from relying on the “factor other than sex” affirmative defense in wage discrimination cases. Under the new legislation, an employer would be required to show that any wage discrepancy is caused by a bona fide factor other than sex, such as education, training and experience, and that this factor is job-related and consistent with business necessity. An employee could rebut this claim by showing that an alternative employment practice exists that could achieve the same business purpose.
• Incorporate anti-retaliation provisions into the FLSA that would protect employees who have made a complaint, filed a charge, testified or otherwise assisted in an investigation or proceeding related to an unfair wage complaint. The provisions would also protect employees who have inquired about or discussed theirs or their coworkers’ wages.
• Eliminate the requirement that employees work in the same establishment for wage comparison purposes. Under this bill, an employer’s establishment would include workplaces located in the same county or similar political subdivision of a state.
• Reinstate the Equal Opportunity Survey, to be administered by the Office of Federal Contract Compliance Programs (OFCCP). The EO survey, which was abolished during the Bush Administration, allowed the agency to gather certain employment information from federal contractors and subcontractors related to their Affirmative Action Programs, personnel activity and compensation. In addition to reinstating the EO survey, the Paycheck Fairness Act would provide the OFCCP with additional investigative methodologies to use in performing compensation analysis.

In November 2010, the measure fell two votes shy of the 60 votes needed to advance in the Senate. Given the current composition of Congress, the Paycheck Fairness Act is expected to stall in this Congress as well.

The Fair Pay Act will presumably share a similar fate. This measure would amend the FLSA by introducing the concept of equal pay for comparable – not equal – work. Specifically, the Fair Pay Act would make it unlawful for employers to:

discriminate, within any establishment in which such employees are employed, between employees on the basis of sex, race, or national origin by paying wages to employees in such establishment in a job that is dominated by employees of a particular sex, race, or national origin at a rate less than the rate at which the employer pays wages to employees in such establishment in another job that is dominated by employees of the opposite sex or of a different race or national origin, respectively, for work on equivalent jobs. (emphasis added)

The Act defines “equivalent jobs” as those “that may be dissimilar, but whose requirements are equivalent, when viewed as a composite of skills, effort, responsibility, and working conditions.”

The bill directs the Equal Employment Opportunity Commission (EEOC) to establish “guidelines” for employers to use in setting compensation. Employers would be prohibited from reducing other employees’ wages in order to achieve pay equity. In addition, employers would be required to maintain and disclose job categories and pay scales as needed to enforce the law. The bill would, however, allow payment of different wages under a seniority system, merit system, or system that measures earnings by quantity or quality of production. Employers would also be able to base a pay differential on a bona fide factor other than sex such as education, training and experience, but in doing so must first demonstrate that the factor is job-related, furthers a legitimate business purpose, and no less discriminatory alternatives exist that would serve the same business purpose.

The measure includes employee protections in the event a claimant is fired or discriminated against for opposing any practices made unlawful under this act; filing a claim or participating in an investigation, inquiring about coworkers’ salaries or disclosing one’s own pay to others. Employees alleging violations of this act would be entitled to compensatory and punitive damages.

Given the date of the bills’ introduction, it is likely that the move was largely symbolic.

Photo credit: DigitalZombie