WEBINAR Pay Equity is “Comp”licated
Pay Equity is “Comp”licatedNew Rules, New Reporting, and Responding to the
Rising Tide of Pay Discrimination Claims
Gary CowanDirector of Compliance, America's Job Exchange
Laura MitchellPrincipal
Jackson Lewis P.C.
WEBINAR Pay Equity is “Comp”licated
About Laura Mitchell
Laura Mitchell is a Principal in the Denver, Colorado office of Jackson Lewis P.C. She is on the leadership team for the firm’s Government
Contractor Industry Group and a member of the firm’s Affirmative Action Compliance & OFCCP Defense practice group.
Laura spends a good deal of her time counseling government contractors on their ever-expanding compliance obligations.
Laura also assists clients with the drafting of affirmative action plans, representing government and non-government contractors in Office of Federal Contract Compliance Programs (OFCCP) matters, preparing
for and defending OFCCP audits, and counseling employers on issues stemming from OFCCP regulations.
WEBINAR Pay Equity is “Comp”licated
Disclaimer
Jackson Lewis P.C. has prepared the materials contained in this presentation for the participants’ reference and
general information in connection with education seminars presented by the firm and its attorneys. Attendees should consult with counsel before taking any actions that could
affect their legal rights and should not consider these materials or discussions about these materials to be legal
or other advice regarding any specific matter.
WEBINAR Pay Equity is “Comp”licated
Agenda
Awareness about “equal pay” has arrived
EEO-1 pay data reporting – what impact will a Trump presidency have on this rule?
Growing wave of aggressive state pay laws
Conducting a Pay Equity analysis
WEBINAR Pay Equity is “Comp”licated
The Increased Focus on “Equal Pay”
WEBINAR Pay Equity is “Comp”licated
Three “Big P’s” of Pay Equity
WEBINAR Pay Equity is “Comp”licated
They Said What?
Pope Francis: “Why is it taken for granted that women must earn less than men? No! The discrepancy is a pure scandal.”
President Obama: “Women deserve equal pay. It’s 2016. It’s time.”
Patricia Arquette: “It’s our time to have wage equality once and for all.”
WEBINAR Pay Equity is “Comp”licated
It’s All About the “Pay Gap”
Group NationwideWomen 79¢
African-AmericanWomen 61¢
Hispanic Women 55¢
For every $1.00 paid to men, how much is paid to . . .
WEBINAR Pay Equity is “Comp”licated
Why Not More Claims?People Just Don’t Know
Employees don’t know what they don’t know about pay
Applicants don’t know what they don’t know about pay
The government doesn’t know what it doesn’t know about pay
You don’t know what you don’t know about pay
WEBINAR Pay Equity is “Comp”licated
Shareholder Pressure to Achieve and Announce “Equal Pay”
Activist investor pressure to achieve “equal pay” and pay transparency
CEOs are telling HR and in-house counsel: “This is going to get done.”
Silicon Valley and other Fortune 500 companies feel increasing pressure to quickly conduct pay equity analyses
… and publish the results
• “I'm proud to share that at Facebook, men and women earn the same” - Lori Matloff Goler, Facebook, Inc.
• Black employees earn $1.003; Hispanic employees earn 99.9 cents; and Asian employees earn $1.006 for every $1 earned by White employees - Kathleen Hogan, Microsoft Corp.
WEBINAR Pay Equity is “Comp”licated
Pressure from White House to Sign“Equal Pay Pledge”
57 companies (and counting) have signed the “White House Equal Pay Pledge,” announced
June 14, 2016•Amazon, American Airlines, Dow
Chemical, Gap Inc., Johnson & Johnson, Facebook, Apple, Microsoft
Signatories pledge to conduct annual pay analysis across entire
workforce•Privilege issues?
Will results of analyses be published?
White House seeking to increase pay transparency to
eliminate wage gap with public commitments and follow
through
WEBINAR Pay Equity is “Comp”licated
White House “Equal Pay Pledge”
We applaud the growing number of countries that have already made significant progress in closing their gender wage gap. Women working full-time earn only 79 percent of men's wages, and we are committed to taking action individually and collectively to reduce that national pay gap.
We believe that businesses must play a critical role in reducing the national pay gap. Towards that end, we commit to conducting an annual company-wide gender pay analysis across occupations and embedding equal pay efforts into broader enterprise-wide equity initiatives. We pledge to take these steps as well as identify and promote other best practices that will close the national wage gap to ensure fundamental fairness for all workers.
WEBINAR Pay Equity is “Comp”licated
EEO-1 Pay Reporting
WEBINAR Pay Equity is “Comp”licated
EEOC Pay Data Reporting
Adds “W-2 earnings” and work hours for all employees to EEO-1 reports starting in 2018
• Workforce snapshot – pay period between Oct. 1 and Dec. 31 of reporting year instead of July - Sept.
Filing deadline now March 31 of every year instead of Sept. 30
• Who else can use the pay data? Unions, plaintiffs’ counsel, competitors, the press . . .
EEOC will publish pay data by industry and geography for employers to “benchmark” against
WEBINAR Pay Equity is “Comp”licated
EEOC Underestimates Employer Burden
• HRIS, Payroll, Timekeeping Systems
Employers typically do not house W-2 earnings, hours worked, job, race/ethnicity and gender data in the same system
EEOC expects employers will write software programs to aggregate data across systems
• From 180 cells to 3,600 cells per establishment
Reporting burden will increase by 1,933%
WEBINAR Pay Equity is “Comp”licated
What Impact Will the Election Have on this Rule?
WEBINAR Pay Equity is “Comp”licated
However, Trump has said he supports equal pay for women,Trump’s daughter is an big equal pay advocate and
closing the “pay gap” has become a national priority
Election’s Impact on EEO-1Pay Data Reporting
Republican congress may push through
legislation blocking EEOC’s rule
EEOC’s Commissioners
are majority democrat, about to
change
Rule was an EEOC rule, not an Executive Order –
cannot be rescinded
unilaterally by Trump
Future is uncertain…
WEBINAR Pay Equity is “Comp”licated
Growing Wave of Aggressive State Pay Laws
WEBINAR Pay Equity is “Comp”licated
California Leads the Way…
California Fair Pay Act –effective January, 2016
Compares “substantially similar” employees – broader than federal standard of “similarly situated”
Compares employees across locations
Employers must explain “entire wage differential”
Attorneys’ fees for prevailing plaintiffs – CA robust wage-hour class plaintiffs’ bar jumping in
New Amendments just passed – effective January, 2017
Expands CFPA to include race and ethnicity
Cannot use salary at prior employer as sole justification for pay disparity
WEBINAR Pay Equity is “Comp”licated
…And Other State Follow
New York Equal Pay Act
Codifies disparate impact theory in pay claims
Increases penalties – liquidated damages = 3x wages owed
Prohibits pay secrecy
Maryland Equal Pay for Equal Work Law
Expands protections to pay disparities based on gender identity
“Same establishment” includes facilities in the same county
Prohibits pay secrecy
WEBINAR Pay Equity is “Comp”licated
Massachusetts “Out California’s” California
Equal pay for “comparable work”
Arguably more expansive than any other federal or state law
Cannot ask applicants – or current/former employers – for prior salary
Proactive Pay Audit as a “Safe Harbor”
If company completed proactive analysis in good faith within past 3 years – must be reasonable analysis
And, made reasonable progress towards eliminating pay disparities
WEBINAR Pay Equity is “Comp”licated
States with Current Proposals for New or Expanded Equal Pay Laws
Alaska Arizona District of Columbia Georgia Hawaii
Indiana Iowa Kentucky Michigan Nebraska
New Jersey Ohio Oklahoma Pennsylvania Tennessee
Washington West Virginia
WEBINAR Pay Equity is “Comp”licated
Prohibition on asking for Prior Salary Prediction – This is the Big One
Massachusetts – first state to ban asking for prior salary –effective July, 2018
CA – quickly amended CFPA to say prior salary cannot, by itself, explain pay disparity
• Fed Govt – House bill would prohibit employers from asking for prior salary• NYC – bill would prohibit asking for or searching publicly available records
for salary history• NJ – proposal would prohibit setting a min or max salary history as a
condition of being interviewed/considered
And in past few months other jurisdictions have proposed similar bans
WEBINAR Pay Equity is “Comp”licated
Pay Equity for All Act of 2016
Introduced in the House September 14, 2016
• Asking for prior salary from prospective employees• Screening prospective employees based on salary history
Would prohibit
Fines up to $10,000 for each offense
Prospective or current employees can bring private action against employer and receive up to $10,000 in damages + attorney’s fees
WEBINAR Pay Equity is “Comp”licated
Conducting a Pay Equity Analysis
WEBINAR Pay Equity is “Comp”licated
So What Do We Do?
Consider privileged proactive pay analysis• On “meaningful” pay groupings • Control for factors that influence pay• Not all pay differences are a problem, most aren’t
But, when they are, plan to make pay adjustments• No lump-sum, off cycle adjustments• Do as part of regular pay cycle incrementally over a few years
Review pay system and processes
WEBINAR Pay Equity is “Comp”licated
No Attorney Involvement
Sliding Scale of Privilege
Not Privileged Argument for Privileged Privileged
In-House Counsel (on surface)
In-House Counsel (substance)
Outside Counsel (on surface)
Outside Counsel (substance)
WEBINAR Pay Equity is “Comp”licated
Keep Up-to-Date
For additional news and insights on developments in pay equity, visit our Pay
Equity Advisor blog: http://www.payequityadvisor.com/
WEBINAR Pay Equity is “Comp”licated
Questions for Laura?
For additional news and insights on the OFCCP and EEO compliance, visit our Affirmative Action & OFCCP Law Advisor blog:
http://www.affirmativeactionlawadvisor.com/
WEBINAR Pay Equity is “Comp”licated
America’s Job Exchange has been a pioneer in online recruitment and compliance from the very beginning, having evolved from America’s Job Bank which was
founded by the Department of Labor in 1995. We keep true to the original mission of America’s Job Bank assisting Federal Contractors meet OFCCP regulations for
online job postings and distribution.
OUR MISSIONWe believe that a diverse workforce is beneficial to every company and its
employees. Our mission is to provide the best tools, resources and information to connect employers and diverse job seekers.
About America’s Job Exchange
WEBINAR Pay Equity is “Comp”licated
The AJE Difference
Complete SolutionReceive unparalleled value when you bundle our products and services for recruitment advertising and compliance.
Competitive PricingThe AJE solution is customizable and priced based on your business needs with variables such as size, hiring forecast and budget.
Breadth of Distribution NetworkBroad network of partners and affiliates including recruitment media agencies, technology providers, associations and states.
Tools and SupportAJE’s tools allow you to stay on top of your outreach efforts and our team is here to support you every step of the way.
Clients choose America’s Job Exchange for OFCCP compliance because AJE offers a comprehensive solution for a great value.
CLIENTELE
TRACK RECORD
REPUTATION
WEBINAR Pay Equity is “Comp”licated
Laura MitchellPrincipal,Jackson Lewis P.C.
Contact Information
www.jacksonlewis.com
WEBINAR Pay Equity is “Comp”licated
Gary CowanDirector of Compliance,America's Job Exchange
[email protected](o) 978-946-7928(c) 617-997-6477
Contact Information
www.americasjobexchange.com
WEBINAR Pay Equity is “Comp”licated
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January 17, 2017 1:00-2:00pm ET
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WEBINAR Pay Equity is “Comp”licated
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