Presenting a live 90 ‐ minute webinar with interactive Q&A Pay Equity Under Heightened EEOC EEOC and OFCCP Scrutiny d OFCCP S i Minimizing Exposure to Government Enforcement and Employee Lawsuits for Wage Discrimination TUESDAY, JUNE 18, 2013 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific T d Today’s faculty features: ’ f l f Alison B. Marshall, Partner, Jones Day , Washington, D.C. Katharine Kores, District Director, Equal Employment Opportunity Commission , Memphis, Tenn. Dr. Donald R. Deere, S Dr. Donald R. Deere, S enior Economist, Welch Consulting , Bryan, Tex. enior Economist, Welch Consulting , Bryan, Tex. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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PAY EQUITY UNDER HEIGHTENED EEOC HEIGHTENED EEOC AND OFCCP SCRUTINY June 18 2013 June 18, 2013 Alison Marshall 51 Louisiana Ave 51 Louisiana Ave., N.W. N W Washington, D.C. 20001 202-879-7611 abmarshall@jonesday.com 5
Why do we need this program? • Pay equity issues are receiving renewed attention Pay equity issues are receiving renewed attention. • President Obama has made pay equity a priority. • Enforcing equal pay laws is listed in the EEOC’s new g q p y Strategic Enforcement Plan as one of six national priorities. • On February 28 2013 the OFCCP rescinded its 2006 • On February 28, 2013, the OFCCP rescinded its 2006 compensation standards and issued new enforcement directive. • Private sector actions continue. P i t t ti ti 6
Overview • Quick review of key laws Quick review of key laws • Recent EEOC activity around pay equity • New OFCCP directive • Proactive measures employers can take • Statistical analyses: data and methodologies 7
Key Laws Key Laws • Equal Pay Act of 1963 , 29 U.S.C. §206(d)(1) provides in pertinent part : No employer…shall discriminate, within any establishment . . ., between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions . . .” (emphasis added). – Comparison between employees working at the same “establishment”. – “Wages” encompasses all forms of compensation. – No showing of intent is required. – Key issue in most EPA cases is whether the comparators are performing “equal work”. – Burden shifts to employer to establish affirmative defense: seniority system, merit system, production measure, or reasonable factor other y , y , p , than sex. 8
Key Laws cont’d Key Laws cont d. • Title VII – Encompasses race as well as gender pay claims. – For disparate treatment, plaintiff needs to establish intentional discrimination. – For disparate impact, plaintiff needs to identify a specific y discriminatory practice that results in wage disparities. di i i t ti th t lt i di iti – May or may not overlap with EPA. • Executive Order 11246 – Prohibits gender and race discrimination by government contractors and subcontractors. – Contractors may not discriminate in “rates of pay or other y p y forms of compensation.” 41 C.F.R. §60-1.4(a)(1). – Contractors must review and monitor their compensation systems. – Record-keeping obligations. 9
Pay Equity Under Heightened EEOC & OFCCP Scrutiny EEOC & OFCCP Scrutiny June 18, 2013 Katharine W. Kores, Director Memphis District Office
President John F. Kennedy signed the Equal Pay Act on June 10, 1963 Source:: www.jfklibrary.org 11
World War I (1914 – 1918) Source: Library of Congress 12
1938 – Fair Labor Standards Act 1938 Fair Labor Standards Act Source: www.democrats.org 13
World War II (1939 – 1945) Source: National Archives 14
In 1945, Senators Claude Pepper and Wayne Morse Introduce an Equal Pay bill. Source: National Park Service 15
The Equal Pay Act of 1963 Source: National Archives 16
Source: U. S. Women’s Bureau, Dept. of Labor, 17
W Wage Gap Over Time G O Ti 77.4% 73.3% 73 3% 73 3% 73 3% 73.3% 73.3% That’s less than half a penny progress per year! 71.6% 71.6% 71.6% 60.2% 60.2% 60.2% 59 % 59 % 59 % 59.4% 59.4% 59.4% 60 7% 60 7% 60 7% 60.7% 60.7% 60.7% 1960 1970 1980 1990 2000 2010 Source: National Committee on Pay Equity, Census 18 Bureau
The Equal Pay Act O One Claim: gender-based wage discrimination Cl i d b d di i i ti 19
Equal Pay Claim Th The complainant receives a lower wage than an l i t i l th employee of the opposite sex in the same establishment; and ; The employees perform substantially equal work requiring equal skill effort and responsibility requiring equal skill, effort and responsibility under similar working conditions. 20
Employer Defenses for Wage Differences Seniority system Merit system Incentive system A Any factor other than sex f t th th 21
Factor Other Than Sex Education, Experience, Training, and Ability Participation in Training Program Shift Differential Job Classification S stems Job Classification Systems “Red Circle” Rates Temporary Reassignments Temporary Reassignments Revenue Production Market Factors Part ‐ time/Temporary Job Status 22
Remedies and Relief • Two years back pay for violation; three years if willful; Two years back pay for violation; three years if willful; • Liquidated damages if lacked good faith • Salary increase y • Back pay • Attorneys fees and costs • Compensatory and punitive damages recovered for retaliation under EPA not subject to statutory caps which apply only to claims under Title VII and ADA • Injunctive relief 23
Paycheck Fairness Act h k H.R. 377 ‐ 1/23/2013 • Intended to address persistent M/F wage gap g p • Introduced in Congress 18 times in last 16 years years • Changes “Any Factor Other Than Sex” and EPA remedies EPA remedies. 24
Si Since 1992, EEOC has received almost 1992 EEOC h i d l t 23,000 Equal Pay Act charges and recovered over $124 million in benefits for victims of $124 illi i b fit f i ti f wage discrimination under the act. 25
National Equal Pay Enforcement Task Force • President Obama’s Administration created Task Force • President Obama s Administration created Task Force consisting of: • Equal Employment Opportunity Commission Equal Employment Opportunity Commission • Department of Justice • Department of Labor • Department of Labor • Office of Personnel Management 26
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