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Pay Equity Matters: Mind the Gap

In a case that has been very closely watched by the higher education community, Spencer v. Virginia State University, the Fourth Circuit Court of Appeals recently upheld the dismissal of a wage discrimination case by a female professor who claimed she was paid less than male professors.

In a court filing yesterday, the EEOC suggested that employers have until September 30, 2019, to turn over pay data as part of their revised EEO-1 reporting obligations. It is uncertain yet as to whether the plaintiffs challenging the government’s actions will go along with this plan, and, more importantly, whether the federal court who resurrected the pay data reporting requirement will be on board with this suggested timeframe.

Cincinnati City Council has passed Ordinance No. 0083-2019 barring employers from asking applicants for their salary history.

An Oregon federal court just shot down Nike Inc.’s request to dismiss a pay equity class action claim fronted by four current and former Nike executives. In her February 26 ruling, a federal magistrate judge recommended that the case should proceed, as it adequately presented allegations that the company employed systemic practices that damaged all female employees. The ruling presents a stark reminder to all employers of the dangers of pay gaps while reinforcing the need to engage in critical compensation self-audits (with your counsel’s assistance).

The House Committee on Education and Labor just voted in favor of the Paycheck Fairness Act (H.R. 7, S.270), which, if ultimately enacted, would amend federal wage and hour law “to provide more effective remedies to victims of discrimination in the payment of wages on the basis of sex, and for other reasons.” The Paycheck Fairness Act, or PFA, notes that the Equal Pay Act (EPA) “has not worked as Congress originally intended,” and concludes that “improvements and modifications to the law are necessary to ensure that the Act provides effective protection to those subject to pay discrimination on the basis of sex.”

For all of the progressive legal advances in the area of pay equity we have seen across the country in recent years, a new report just released by an economic thinktank suggests that the wage gap is not only still present, but that is actually worsening as we head into a new year. The Economic Policy Institute's February 20 report, “State of Working America Wages 2018,” forebodingly notes that wage inequality “marches on”— and doesn't seem to be letting up. What do employers need to know about this latest information?

The first lawsuit filed under the Massachusetts Equal Pay Act (MEPA)—a claim against the Boston Symphony Orchestra (BSO)—was settled last week pursuant to the terms of a confidential agreement between the parties.

New Jersey employers can breathe a sigh of relief knowing that a federal court has just pronounced that the Diane B. Allen Equal Pay Act, which went into effect on July 1, 2018, is not retroactive. This gives you some additional time to comply with the dictates of the law—the most sweeping equal pay statute enacted in the country—without the fear that employees will succeed in federal lawsuits alleging non-compliance with the law’s equal pay mandates prior to its enactment. While there is a chance that a state court might view things differently, this decision is a positive development.

As we discussed recently, the November midterm elections have resulted in a divided Congress that is unable to pass significant employment legislation. This means we are likely to see the drive for legislative changes pursued primarily at the state or local level in 2019. And if the first few weeks of the new year are any indication, issues related to pay equity will continue to be a hot topic of discussion across the country.

More than seven years ago, female sales representatives who worked for Merck filed a class and collective action alleging discrimination in pay on the basis of their gender in violation of the Equal Pay Act (EPA) and Title VII. After years of litigation that resulted in a class and collective of 672 opt-in plaintiffs, the parties in Smith, et al. v. Merck & Co., Inc., recently reached a settlement of $6.2 million. We now wait to see if the court will approve the settlement. What do employers need to know about this proposed resolution?

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