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Litigation | MONDAY, JULY 17, 2017 | S3
Pay Equity Litigation Trends
broader comparisons among employees. For example, under the federal Equal Pay Act, an employee pursuing a claim of gender- based unequal pay must demonstrate she performs work that is equal in skill, respon- sibility, and effort to the work performed under similar working conditions by one or more male comparators. Under the newly enacted California and Massachusetts laws, however, the employee must show only that her job duties are “substantially similar” to those of a male comparator. The recently enacted Oregon Equal Pay Act of 2017 like- wise requires the employee to show her job duties are “substantially similar” to those of a male comparator. Although the New York Labor Law was amended, effective in 2016, to create stricter pay equity requirements, its terms continue to use the “equal work” lan- guage used in the federal Equal Pay Act, not adopting the new, broader standards of the California and Massachusetts equal pay laws.
Moreover, this year, Gov. Andrew Cuomo issued Executive Orders 161 and 162 to regu- late further the actions of state contractors on employee pay equity. Executive Order 161 prohibits state contractors from asking job applicants about prior salary history; Executive Order 162 requires state contrac- tors to make detailed disclosures regarding employee demographic data, job titles, and salaries.
Litigation Trend: Legal Standard For Comparability of Work
The adoption of the “substantially similar” language in some states has created uncer- tainty about how similar the job duties must be to give rise to a valid claim. In other words, does this distinction—“equal work” under the federal Equal Pay Act versus “substan- tially similar work” under several states’ new laws—really matter?
Basic principles of statutory construc- tion suggest that a difference in statutory language would indicate a difference in the laws’ requirements: the plain meaning of “equal work” implies identical duties, or duties that are exactly equivalent, whereas “substantially similar” suggests the duties of the plaintiff and one or more » Page S14
VICTORIA WOODIN CHAVEY and ANA C. SHIELDS are principals at Jackson Lewis P.C.
BY VICTORIA WOODIN CHAVEY AND ANA C. SHIELDS
New requirements and prohibitions on compensation practices around the country are making pay equity a hot topic. These obligations seek to address the “gender pay gap,” which the latest reports estimate is at a little over 20 percent, with women across all occupations having median earnings around 78 percent of the median earnings of men across all occupations. Although some dispute whether there is in fact a gender pay gap, its existence is so
widely accepted that many jurisdictions are taking steps to promote pay equity.
This article gives an overview of trends in pay equity litigation.
Background
In 2016 alone, states, including California, Maryland, Massachusetts, and New York, implemented new pay equity legislation that impose stricter standards on employ- ers. These come with severe consequences for noncompliance. For example, the New York legislature amended the state Labor Law, effective 2016, to bar employers from
prohibiting employees from discussing, dis- closing, or asking about their compensation. This pay transparency provision (designed to facilitate employees’ sharing of pay data and to enhance the likelihood pay dispari- ties are discovered in the regular course of employee interactions and cannot be kept hidden by the employer) is comparable to newly added features of the fair pay laws in many other states. The New York Labor Law amendments also significantly increase avail- able liquidated damages, to three times the amount of wages due.
A significant feature of the much of the new pay equity legislation is the creation of
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