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Total Articles: 58

Beyond Base-Pay: EEOC Settlement Targets Sales Representative Commissions

For some workers, the bulk of their income is commissions or other incentive-based pay, not their salary or base wage. For years, the Equal Employment Opportunity Commission, sales employees, and class action plaintiff attorneys have been interested in fair pay for sales workers and, in particular, pay discrimination involving female sales workers. A recent EEOC settlement demonstrates the need for employers to separately analyze all components of incentive-based workers’ pay.

It’s the Most Wonderful Time . . . For a Pay Equity Update

‘Tis the season . . . for state legislatures to close for the year. While we’re seeing legislative activity at the state level slow down, the past few months brought a flurry of activity in the area of pay equity and bans on salary history inquiries. Here is a recap of recent activity and noteworthy developments.

WPI State of the States: Lawmakers Keep Their Focus on Equal Pay Measures

As the holiday season approaches, legislative activity at the state level is starting to slow down. The California General Assembly closed out its term, for example, giving employers a breather until January. Illinois’ regular session has also concluded, although its ongoing veto override session may yet bring about new labor and employment regulations. Municipal legislators are keeping employers on their toes, no matter the season.

Understanding the EEOC’s Shifting Stance on Pay Bias and Data Collection

Recently, the Equal Employment Opportunity Commission (“EEOC”) has sent mixed signals to employers regarding its efforts to collect salary and pay data to combat pay inequity based on gender and race. Many employers are left wondering what, if anything, they may be required to do after the most recent developments.

Equal Pay Class Action Lawsuit Against Google

Google, Inc. (“Google”) is the latest high profile employer in an onslaught of class actions by female employees alleging systemic discrimination in pay against women. Coupled with the Office of Federal Contract Compliance Program’s (“OFCCP”) investigation into Google’s pay practices and the recent media firestorm over a memo by a disgruntled male (now former) employee, this class action lawsuit has brought Google’s compensation practices into the spotlight.

EEOC Challenges Physician Pay Practices of Texas County Health Department

On August 31, 2017, the U.S. Equal Employment Opportunity Commission (EEOC) in Dallas filed a federal lawsuit in the Eastern District of Texas, Sherman Division, against Denton County, Texas, alleging violations of the Equal Pay Act with regard to Denton’s compensation of two physicians in the county health department. The suit claims the county discriminated against Dr. Martha C. Storrie, a primary care clinician with the health department since October 2008, by “paying lesser wages to [Dr. Storrie] than it paid to a male physician performing the same job.” The EEOC alleges that in August 2015, Denton County hired a male physician to occupy the position of primary care clinician—the same position held by Dr. Storrie—and that the male physician earned at least $34,000 more per year than Dr. Storrie did.

Company’s Reaction to Claim of Unequal Pay Provides Lessons for Employers

Complaints of unequal pay should not be taken lightly, and certainly should not be met with an immediate adverse employment action. The U.S. Court of Appeals for the Eighth Circuit recently reinstated a female office worker’s equal pay retaliation claim that had been dismissed by a federal district court, and is allowing that case to move forward to a jury. Donathan v. Oakley Grain, Inc., No. 15-3508 (June 28, 2017).

Company’s reaction to claim of unequal pay is a “don’t do” check-list for employers.

Complaints of unequal pay should not be taken lightly, and certainly should not be met with an immediate adverse employment action. The 8th U.S. Circuit Court of Appeals recently reinstated a female office worker’s equal pay retaliation claim that had been dismissed by a federal district court, and is allowing that case to move forward to a jury. Donathan v. Oakley Grain, Inc., 8th Circ., No. 15-3508, June 28, 2017.

Mid-Year Roundup: Equal Pay and Related Bills Command Attention in 2017

Consistent with a major theme of the 2016 election cycle, equal pay and similar wage proposals dominated the attention of state legislatures in the first half of 2017.1 More than 100 such bills were introduced in the recent legislative sessions in more than 40 jurisdictions, including Washington, D.C. and Puerto Rico.2 While most of these bills have languished or were vetoed—most recently, a Maine proposal to expand its equal pay law reached the desk of Governor Paul LePage, only to be vetoed as the legislative term closed on June 30—the trend is apparent.

Unhidden Figures: U.K. Requires Public Gender Pay Gap Reporting

The U.K. Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 went into effect in April. The new law requires private employers with 250 or more U.K.-based employees to publish, for 2017 and every year thereafter, information showing differences in pay between male and female employees.

An Old-School Approach To Equal Pay At 9th Circ.

The Ninth Circuit issued a decision in late April holding that an employer does not violate the federal Equal Pay Act by paying men and women differently for the same work where their starting pay was determined by their salaries in their previous jobs. The court applied a decades-old precedent in reaching its decision, one that is likely to have little impact on private sector employers in California but that might be helpful to employers elsewhere in the circuit.

Gender Wage Gap Persists: What Employers and HR Can Do to Address It

There is glaring evidence that the gender wage gap persists, and that women still lag behind their male counterparts when it comes to workplace compensation.

Employer May Use Salary History to Set Pay, 9th Circuit Rules

The 9th Circuit Court of Appeals has ruled that an employer may use an applicant's salary history to determine the individual's pay in certain circumstances, even if it results in a female employee earning less than male employees for doing the same work.

Ninth Circuit Clarifies Employer Burden Under EPA to Justify Pay Differential

On April 27, 2017, a panel of the Ninth Circuit Court of Appeals vacated and remanded a district court’s ruling denying an employer’s motion for summary judgment on an Equal Pay Act (EPA) claim. In so doing, the court reaffirmed precedent and reinforced how an employer can use prior pay to account for a pay differential between male and female employees. Rizo v. Yovino, No. 16-15372 (April 27, 2017).

April 4 is “Equal Pay Day”

Tuesday, April 4, is Equal Pay Day, the day symbolizing how far into the year women must work to earn what men earned in the previous year and observed by activists and advocates as an occasion to raise awareness about the gender pay gap.

5 Ways to Commemorate Equal Pay Day 2017

April 4 is Equal Pay Day—a day originated by the National Committee on Pay Equity designating how far into the calendar year women would have to work to earn the same as men in the previous year.

U.S. Women’s Sports Intensify the Fray for Equal Pay

About a year ago, five prominent members of the U.S. Women’s Soccer team filed an EEOC charge claiming they were unfairly paid as compared to their male counterparts on the U.S. Men’s Soccer team. That charge is still pending.

Trump Signs Legislation and Issues Order Ending Obama-Era Fair Pay and Safe Workplaces Executive Order

The nearly three-year journey of Executive Order 13673: Fair Pay and Safe Workplaces, which President Barack Obama signed in July 2014, is officially over. Federal contractors will not be required to report alleged labor violations to federal agencies as part of the bid process or implement measures to foster pay transparency. They also will not be prohibited from entering into mandatory arbitration agreements concerning employee Title VII claims.

U.S. Women’s Hockey Team “Dropping the Gloves” for Pay Equity

The U.S. Women’s National Hockey Team will not play in the upcoming International Ice Hockey Federation World Championship unless “meaningful progress” is made in negotiations for increased pay and support from USA Hockey, the sport’s governing body in the United States. They join the U.S. women’s soccer team in the fight for pay equity. The U.S. Women’s National Soccer Team, in 2016, filed a pay discrimination charge with the EEOC against U.S. Soccer, alleging they unfairly are paid less than the mean’s team.

Representatives Wear “Suffragette White” to Support Equal Pay and Other Women’s Issues

During President Trump’s first joint address to Congress, a group of democratic female Representatives wore “suffragette white” to shine the spotlight on issues related to women, including #equalpay. Congresswoman Katherine Clark from Massachusetts, who participated in the unified message, posted on her twitter account, “We’re wearing suffragette white at #JointSession as a pledge to fight for women’s #reprorights, #equalpay, #paidleave & more #WomenWearWhite.”

Achieve Pay Equity Act: Are Employers Ready to Defend Their Pay Practices?

Pay equity issues are hot these days, in the boardroom and in the courtroom. Ask any employment lawyer and they will probably tell you that equal pay is likely to be one of the hottest topics in 2017 and beyond. This is doubly so for New York employers, due in no small part to the state's Achieve Pay Equity Act (APEA).

An Employer’s New Year Resolution: Pay Attention To Pay Equity In 2017

We are not yet through the first month of the New Year, but pay equity lawsuits have already dealt a one-two punch to employers: “one” being a million-dollar settlement between a legal and business research company and its employees, and “two” taking the form of a new lawsuit brought by a female automotive industry employee against automotive giant General Motors. Meanwhile, pay equity legislative activity has already cropped up in South Carolina (among other states), indicating that the pay equity legal boxing match between employees and employers is only in its first round.

Pay Equity: Law, Litigation, and the Gathering of Pay Data

Pay equity issues are hot. President Obama has made pay equity one of the hallmarks of his administration by signing the Lilly Ledbetter Fair Pay Act, establishing the National Equal Pay Task Force, and championing the fight for all employees to receive equal pay for equal work, regardless of sex. States throughout the country have followed suit, enacting sweeping pay equity legislation in the past few years.

Leveraging Data Analytics for Fair Pay

Fair pay is becoming an increasingly visible issue nationally, politically, and organizationally. Employers are paying attention to this issue and seeking out services and consultation to achieve and maintain pay equity. In this episode of Littler’s Big Data Initiative podcast, Dr. Zev Eigen discusses this burgeoning area, where it's headed, and what employers can do now to prepare.

Pay Equity FAQs: Answers to the Questions That Keep You Up at Night

As employers are learning about the many trends and changes that are bringing pay equity issues to the fore, they are asking questions regarding what they can do to protect themselves from potential liability. This article addresses some of the most frequently asked questions regarding pay equity issues.

Equal Pay Efforts Falter at the Federal Level, Gain Traction Elsewhere

Earlier this week, Senators Patty Murray (D-WA) and Deb Fischer (R-NE) attempted to force passage of two pay-related bills. The promotion of rival legislation was likely a symbolic nod to Equal Pay Day, commemorated on April 12. While both efforts predictably failed, this does not mean the push for equal pay is a dead issue. To the contrary, recent efforts by federal agencies and state legislatures indicate this issue will remain active in the months ahead.

National Equal Pay Day 2016

April 12, 2016 is National Equal Pay Day – the date which symbolizes the additional days into the current year women must work, on average, to reach the average pay of men during the previous year.

The UK Continues to Take Aim at the Gender Pay Gap

More than 35 years after the United Kingdom's Equal Pay Act was introduced, recently released statistics show a 19.2 percent gap in average full time salaries between men and women.

Celebrate Equal Pay Day: 7 Golden Rules to Avoid Pay Discrimination

Today marks Equal Pay Day and 53 years since the passage of the Equal Pay Act. Nonetheless, we still see wage discrimination and pay inequality in various industries. The issue recently gained nationwide attention when five members of the US Women’s World Cup and Olympic champion national soccer team filed a complaint with the EEOC claiming that despite their worldwide success, they are paid about 40% less than the players on the men’s national team. Similarly, female actresses and directors in Hollywood have alleged rampant gender discrimination in hiring as well as wage discrimination.

Reducing the Risks of Pay Discrimination Claims: Employer Pay Equity Audits

With a proliferation of recent legislative changes and proposed regulatory changes, pay equity is going to be an issue for which employers need to prepare and face head on. Generally speaking, employers may be at risk for pay discrimination claims if they:

Obama Administration Takes Action on Equal Pay

The Equal Employment Opportunity Commission (EEOC) has published a notice in the Federal Register regarding a proposed revision of the Employer Information Report (EEO-1), furthering the Obama Administration's plans to advance equal pay protections for all workers.

President Obama Announces New Plan to Collect Companies’ Salary Data Through New Equal Pay Rules

On January 29, 2016, President Obama announced that the Equal Employment Opportunity Commission (“EEOC”) will be proposing (in the form of a proposed new federal regulation) a revision to its longstanding Employer Information Report (“EEO-1”). The current EEO-1 reporting guidelines require certain private sector employers and federal contractors to provide workforce profiles containing data sorted by race, ethnicity, gender and job category. The proposed new rules would now expand the scope of those required disclosures in the EEO-1 form. Specifically, they would require employers with 100 or more employees to report by race, ethnicity and gender their employees’ total hours worked and W-2 earnings (including tips, taxable benefits and bonuses) for a 12-month period.

EEOC Releases Proposed Rule to Collect Pay Data from Employers

On the anniversary of President Barack Obama signing the Lilly Ledbetter Fair Pay Act, the Equal Employment Opportunity Commission has announced proposed changes to its EEO-1 report, requiring employers to submit employee W-2 earnings and hours worked. All employers with at least 100 employees would be required to comply. EEOC and the Office of Federal Contract Compliance Programs (OFCCP) would jointly have access to the pay data for enforcement purposes.

EEOC Seeks Input on Proposed Pay Data Collection Requirements and Retaliation Enforcement Guidance

The Equal Employment Opportunity Commission is soliciting public comments on two proposed policy changes that could have a significant impact on employers. The agency plans to require companies with 100 or more employees to include pay data as part of their Employer Information Report (EEO-1) form submissions, and issue enforcement guidance on unlawful retaliation.

Unequal pay causes mental illness? Let’s not jump to conclusions.

Did you know that unequal pay causes depression and anxiety?

The Push for Pay Transparency and Equity

On September 10, 2015, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) published its final rule on pay transparency, setting a trend for states to enact legislation aimed at strengthening fair pay, pay transparency, and other legal protections in the workplace. We summarized the final rule in our October 7, 2015 article, “OFCCP Publishes Final Rule to Promote Pay Transparency.”

The Uncomfortable Questions You Should Be Asking about Pay Equity

How much money do you make? Are you paid fairly compared to the other people you work alongside? Do you have any idea if you’re paid fairly? How much does the head of your organization make? Do you care? Does he or she care about whether your pay is fair?

Employer Pay Practices Viewed as Potentially Discriminatory February 4, 2015

The Tenth Circuit Court of Appeals recently rejected an employer’s argument under the Equal Pay Act (EPA) that a pay differential was justified because a female employee and her male counterparts do not have the same jobs. Riser v. QEP Energy

Even The Doctor Is Not Immune

A federal jury recently awarded $350,000 in punitive and compensatory damages to three former employees of Endoscopic Microsurgery Associates, a Baltimore-area medical practice, who were subjected to unwanted sexual advances by Dr. Mark Noar, the Owner/CEO of the practice, and Martin Virga, the Practice Administrator.

The Evolving World of Equal Pay Laws

President Obama recently signed two executive orders changing the landscape of equal pay protections applicable to federal contractors. The first executive order prohibits federal contractors from firing, demoting or retaliating against employees who discuss their compensation. The second order directs the Secretary of Labor, Tom Perez, to establish and implement new regulations requiring federal contractors to submit compensation data that, in part, is broken down by sex and race. According to the White House, the data will be used to encourage voluntary compliance with already existing equal pay laws and assist with more targeted enforcement initiatives.

President Obama Delivers Double Dose of Wage-Related Rules to Employers

President Obama signed two important documents this week that impact many employers. First, he signed an Executive Order protecting employees who disclose their compensation to co-workers. Second, he sent a Presidential Memorandum to the Department of Labor directing DOL to issue regulations requiring federal contractors and subcontractors to submit compensation data on their workforce by the categories of sex and race.

Sex, Pay, and Retaliation: The White House Weighs In Again

Today, President Obama directed U.S. Secretary of Labor Thomas E. Perez to propose a rule requiring that federal contractors submit summary compensation data to the U.S. Department of Labor (DOL) and issued an executive order prohibiting retaliation against employees and applicants who discuss compensation information. The executive order and presidential memorandum issued today are designed to further the Obama administration’s emphasis on pay equity and wage transparency.

The Equal Pay Act of 1963, The First Tentative Step

The first 87 Congresses of the United States did not really give much thought to the relationship between an employer and its employees. When Congress had acted the focus was on regulating the power between organized labor (unions) and management. While certainly a major factor in the work world, those legislative actions only incidentally involved the basic relationship between the individual employee and their employer.

Employment Law Made Un-Scary: EPA

Everything you need to know about the Equal Pay Act (EPA).

Why Do Women Still Earn Less Than Men? Analyzing the Search for High-paying Jobs

Why do women continue to earn less money than men -- approximately 20% less, according to some estimates -- and what can be done about it?

What the Failure of the Paycheck Fairness Act Means for Employers

A bill that would have eased the ability to win gender-based pay disparity lawsuits failed in the Senate this month. As an employer, what are you permitted to do now that you would not have been able to do if the law had passed?

Men Are From Mars, Women Are From Venus, And Equal Pay Act Claims Are Everywhere

Because of recent high-profile cases claiming gender-based pay discrimination, the Equal Pay Act has taken on a new life. Newspapers continue to tout the controversial statistic that women earn only 77 cents for each dollar men earn. That statistic does not distinguish among jobs and is actually a comparison of apples to oranges, argue critics. Nevertheless, there are certainly situations where women on average are paid less than similarly-situated men. The fact that retail giant Wal-Mart is the defendant in the first major case of this kind in many years has placed all retailers in the crosshairs of the wage and hour plaintiffs' bar.

Federal Appeals Court Rules that Ledbetter Fair Pay Act Does Not Apply to Promotion Claims.

In a ruling that should provide relief to employers worried about the threat of litigation concerning decisions made years ago, a second federal court of appeals held that the Lilly Ledbetter Fair Pay Act (“the Act”) does not apply to discrimination claims arising from denial of a promotion. In Noel v. Boeing, the Third Circuit Court of Appeals, the federal appellate court for Delaware, New Jersey and Pennsylvania, joined a ruling by the D.C. Circuit earlier this year, and held that a Title VII claim is untimely if it concerns a promotion decision made more than 300 days before the plaintiff files a charge with the EEOC or other employment agency, even if the decision resulted in the plaintiff receiving lower pay within the most recent 300 days.

Third Circuit holds that Ledbetter Fair Pay Act does not apply to failure-to-promote claims under Title VII.

In 2009, Congress passed the Lilly Ledbetter Fair Pay Act (FPA), which allows employees to file unequal-pay claims outside of the otherwise applicable 300 day statute of limitations period for filing claims of discrimination. Under the FPA, the statute of limitations re-starts each time compensation is paid pursuant to a “discriminatory compensation decision or other practice,” typically when a periodic paycheck is issued. In an issue of first impression, the 3d U.S. Circuit Court of Appeals recently upheld summary judgment for an employer, and specifically held that a black Haitian mechanic could not use the FPA to support his failure-to-promote claim under Title VII. Noel v. Boeing Co., 3d Cir., No.08-3877, October 1, 2010. In that case, an employee unsuccessfully argued that the 300-day statute of limitations began each time he received a lower paycheck than he would have received had he been promoted three years prior to his claim of discrimination.

Senate Vote on Paycheck Fairness Act May Be Imminent

Senate watchers are reporting that the Senate may vote on the Paycheck Fairness Act (PFA) (S. 3772) as early as this week. The House previously passed the PFA in 2009, but the law failed to clear the Senate. If this law passes, it will mark a major expansion of federal employment discrimination law and will force many employers to dramatically change their compensation practices to mitigate the risk of pay discrimination lawsuits.

The Lilly Ledbetter Fair Pay Act of 2009: Lilly's Legacy is Alive - And Stay Tuned for More to Come.

The Lilly Ledbetter Fair Pay Act of 2009 (the "Act") was the first piece of legislation signed by President Barack Obama. There was much anticipation and fanfare surrounding the Act's inception, passage and enactment. Many organizations and individuals were quite outspoken in their support or criticism of the law. Alarms were sounded and employers were fearful about the potential impact. The Act was widely billed as "Granting Equal Pay to All Women" even though it applies to compensation decisions alleged to have been based on other protected categories including age, disability, religion, national origin, race and color.

Who In The Heck Is Lilly Ledbetter?

In recent weeks, there has been a lot of media attention given to the new "Lilly Ledbetter Fair Pay Act." Who is Lilly Ledbetter and what, if anything, does this Act mean for dealerships?

The Ledbetter Fair Pay Act - What Every Employer Needs To Know.

On January 29, 2009, President Barack Obama signed into law the Lilly Ledbetter Fair Pay Act. The Act requires employers to redouble their efforts to ensure that their pay practices are non-discriminatory and to make certain that they keep the records needed to prove the fairness of pay decisions.


On January 29, 2009, President Obama signed the Ledbetter Fair Pay Act (the “Act”) into law. Notably, this was the first piece of legislation signed by the new President. Although the Act’s supporters claim it is specifically targeted to provide a remedy for discriminatory pay practices, consequences for America’s employers will likely be more extensive.

Preliminary Guidance on Ledbetter Fair Pay Act.

On January 29, 2009, President Barack Obama signed the Lilly Ledbetter Fair Pay Act. The Act will require employers to redouble their efforts to ensure that their pay practices are non-discriminatory and to make certain that they keep the records needed to prove the fairness of their pay decisions.

New Pay Laws Will Lead to More Litigation.

A new year, coupled with a new administration, means new legislation. Even though 2009 is barely a month old, the House of Representatives has already approved two bills which are significant to employers and their workforce. The Lilly Ledbetter Fair Pay Act and the Paycheck Fairness Act passed the House in January, and are aimed at reducing the discrepancy in employment compensation between women and men.

Fair Pay Act Now Law.

Today President Obama signed into law the Lilly Ledbetter Fair Pay Act which expands the time period in which employees can pursue discrimination claims related to employment compensation. This will result in a substantial increase in the number of pay-related lawsuits.

President Signs Ledbetter Fair Pay Act.

On January 29, President Obama signed the Lilly Ledbetter Fair Pay Act, only two days after Congress passed the law (see Ogletree Deakins’ January 27, 2009 E-Alert). The Fair Pay Act is the first law passed by the new Congress and the first law signed by President Obama. Civil rights groups and their union supporters hailed the symbolism of the Act’s “first law passed and signed” status.
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