Mind the Gap: Obama Takes New Executive Action on Pay Equity in the Workplace

Last week President Obama continued his administration’s push to tackle pay equity issues by taking executive action to put federal contractors’ compensation practices under greater scrutiny. On April 8, 2014, the President signed a memorandum and executive order designed to address race and gender-based disparities in compensation. The memorandum directs the Department of Labor (“DOL”) to propose a rule within 120 days requiring federal contractors and subcontractors to submit “summary data” on employee compensation by race and sex to the DOL using a “tool” to be developed by the agency. The executive order signed along with the memorandum bans federal contractors from retaliating against employees for discussing their compensation with each another in an effort to “enhance the ability of Federal contractors and their employees to detect and remediate unlawful discriminatory practices” in pay. Read More

OFCCP Rescinds Prior Guidance on Compensation Discrimination Analysis In Favor of a Case-by-Case Approach

Effective February 28, 2013, the Office of Federal Contract Compliance Programs (“OFCCP”) rescinded two 2006 guidance documents concerning how the OFCCP and federal contractors analyze potential pay discrimination. This change came as a response to President Obama’s Equal Pay Task Force, which brought together the federal agencies charged with addressing pay discrimination.

The OFCCP, which is charged with ensuring federal contractors and subcontractors provide equal employment opportunity, concluded that the previous guidance was too rigid and undermining the agency’s efforts to combat discrimination. Several aspects of the now-rescinded guidance fell into disfavor with the OFCCP in its efforts to carry out President Obama’s mandate to step up investigation of systemic compensation discrimination. First, it was required to compare “similarly situated workers,” defined narrowly to include only employees with the same position. Second, it was required to use multiple regression analysis to test for pay disparities, failing to address situations where analysis of a smaller sample size might be more appropriate. Finally, it required anecdotal evidence to establish a systemic compensation violation in addition to statistical evidence. Reasoning that “employment discrimination comes in many forms,” OFCCP found that this specific method of analyzing compensation would not allow OFCCP to detect all forms of pay discrimination. Read More

Equal Pay Is Down but Not Out

Last week, Senate Democrats found themselves seven votes short in their most recent effort to pass the Paycheck Fairness Act (“PFA”)—an effort which began in 2005, when Hillary Clinton first introduced the bill. But the Democrats’ continuing effort to paint the issue of equal pay as one of employer bias likely is not over. Read More