The pay equity movement made big headlines in 2019 thanks to several high profile pay discrimination cases, EEO-1 Component 2 pay data collection, and significant activity at the state level to enact pay equity legislation. However, gender pay gap surveys reported that in 2019 women are still earning 79 cents for every dollar that men make. To see the gender pay gap and pay equity law in your state(s), excellent interactive resources are made available by The American Association of University Women (AAUW). AAUW is a nonpartisan, nonprofit organization with a mission “to advance gender equity for women and girls through research, education, and advocacy” with a vision for “equity for all.”
The House of Representatives recently passed a Defense spending bill that includes a provision allowing all Federal employees to take 12 weeks of paid leave after the birth, adoption, or placement of a foster child. This is a radical change for the government, which currently has no parental leave policy in place. Also included in the proposed spending package is a 3.1% pay increase for service members.
A final rule implementing Executive Order (EO) 13838 was issued this week by the Wage and Hour Division of the Department of Labor. EO 13838 provides exemptions for some federal contracts that were established under EO 13658 “Establishing a Minimum Wage for Contractors.”
Today, OFCCP announced three different directives geared towards maximizing the success of compliance assistance outreach for federal contractors. The directives include new procedures for reviewing compensation practices, a program to verify that contractors are in full compliance with federal AAP requirements, as well as an initiative that will establish a program that recognizes contractors with high-quality and high-performing compliance initiatives.
At the end of April, we reported that U.S. District Judge Mitchell Goldberg issued a preliminary injunction regarding a City of Philadelphia ordinance, which prevents employers from asking about a job applicant’s salary history and using those salary histories to set wages. Judge Goldberg struck down the provision that employers are not able to ask about a job applicant’s prior salary. He indicated there is insufficient evidence that a worker disclosing a salary that may be the result of past discrimination would mean the prospective employer would offer a lower wage. The City did not sufficiently address if lower wages could be the result of non-discriminatory factors such as qualifications or experience, and thus, he ruled it is acceptable for employers to request salary history.
On September 15, in Philadelphia, PA, a group known as The Women’s Law Project, along with a host of other groups, urged a Pennsylvania Federal court not to block a recent law which bars employers from asking applicants about their pay history. The coalition, with the belief the ordinance would address the gender wage gap without hurting any businesses, filed an amicus brief supporting the city’s opposition to a bid from the Chamber of Commerce for Greater Philadelphia for a preliminary injunction to bar the law from taking place.
It’s too expensive to prove there is no gender pay gap. This is Google’s argument following their refusal to turn over compensation data to the U.S. Department of Labor, highlighted on social media and various publications following a recent hearing before a DOL administrative law judge (ALJ). However, there’s another argument not receiving nearly as much buzz—Google has a constitutional right to raise a lawful defense against a request that, in its opinion, is unreasonable and goes beyond the scope of the DOL’s investigation.
The use of a previous salary as a factor in setting starting pay has been a frequently debated topic. Many groups have argued that using pay history in setting starting pay has the risk of perpetuating pay discrimination that may have occurred in previous jobs. Some states are considering legislation that would ban employers from asking about previous pay and, in 2016, Massachusetts became the first state to ban asking about pay history. The issue is under current scrutiny in the case of Rizo v. Yovino. The United States Court of Appeals for the Ninth Circuit recently held that prior pay could be used as a defense for a pay disparity in certain circumstances because it is a factor “based on any other factor other than sex” under the Equal Pay Act (EPA). In the newest twist, the Equal Employment Opportunity Commission and employee advocacy groups recently asked the Ninth Circuit to revisit its decision, arguing that reliance on prior salary “perpetuates” what the EPA sought to correct.
Circuit courts throughout the country have not come to a consensus when it comes to interpreting a critical portion of the federal Equal Pay Act, and whether it permits employers to base an employee’s salary on prior pay history alone. An April 2017 decision in the Ninth Circuit has added to the growing debate around this issue.