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Employment Law Blog

Tuesday, September 28, 2010

Push for the Paycheck Fairness Act and the Death of the “Any Other Factor” Defense

The Paycheck Fairness Act is proposed legislation that has been floating around Congress for a few years, with occasional flair-ups of interest. Just last week, Labor Secretary Hilda Solis hosted a webcast with co-host Lilly Ledbetter (as in the Ledbetter Fair Pay Act, and Supreme Court case Ledbetter v. Goodyear Tire and Rubber Co.) promoting the Paycheck Fairness Act (PFA). The PFA (Paycheck Fairness Act) significantly amends the Equal Pay Act.

One major component of the PFA is the death knell of the “any other factor other than sex” defense currently embedded in the Equal Pay Act. Instead of “any other factor,” the PFA will require employers to establish a “bona fide factor.” This will be significantly more difficult for employers to establish than the existing defense.

The statute includes “education, training, or experience” as examples of bona fide factors. In addition, the PFA would place the burden on employers to establish that the factor:

(i)  is not based upon or derived from a sex-based differential in compensation;
(ii)  is job-related with respect to the position in question; and
(iii)  is consistent with business necessity.

Even then, the employee can still prevail by demonstrating that “an alternative employment practice exists that would serve the same business purpose without producing such differential and that the employer has refused to adopt such alternative practice.”

Other Equal Pay Act provisions in the PFA would make class sizes larger in class actions, enhance penalties, and prohibit retaliation for certain salary-sharing activities. The legislation’s fate remains up in the air, but the push is on.

Philip K. Miles III, esq., McQuaide Blasko
Publisher of Lawffice Space

Posted by Philip Miles on 09/28 at 11:13 AM