Just less than a year ago, California adopted the Fair Pay Act (“FPA”), which took effect on January 1, 2016 and created some of the strongest equal pay protections in the nation. On September 30, 2016, Governor Jerry Brown signed two bills that expand the law even further.
New York City Public Advocate Letitia James has introduced before the New York City Council an amendment to the New York City Human Rights Law, which, if enacted, would prohibit employers from requesting or relying upon the salary history of an prospective employee in making starting salary and other pay decisions. In the bill summary, Public Advocate James and her co-sponsors conclude that when employers rely upon historical salary information, “they perpetuate the gender wage gap” and suggest that this legislation would “help break the cycle of gender pay inequity.” New York City’s proposed legislation follows closely on the heels of a wide-reaching pay equity statute recently enacted in Massachusetts that includes a prohibition on employers requesting or requiring applicants to provide their salary history.
Orrick partner Lauri Damrell collaborated with California Labor Commissioner Julie Su on a recent Op Ed column for the San Jose Mercury News outlining their joint efforts in California to address the gender pay gap. Damrell and Su are both members of the California Commission on the Status of Women and Girls, and their column discussed their recent launch of the California Pay Equity Task Force to encourage more collaboration between employers and employees in finding solutions to the high-profile issue.
On March 16, 2016 the EEOC will be holding hearings on its proposal to expand the EEO-1 report to require employers to provide pay data. Orrick’s Gary Siniscalco was asked to address the hearing to provide employer views on this issue. Watch our Blog for ongoing developments on this issue and new developments in the equal pay area as they continue to unfold. The text of Gary’s testimony before the EEOC will be as follows:
In the heady days of the Coalition Government, gender pay gap reporting started to get some traction on the political agenda. This led to the 2011 initiative ‘Think, Act, Report’ which encouraged employers to voluntarily publish gender pay gap information. According to a Guardian article in August 2014, citing a parliamentary question from the shadow Equalities Minster at the time, 200 companies signed up to the initiative but only four of those ever published any data. £90,000 of public money later and we were clearly no further on.
In August 2014, the Department of Labor’s Office of Federal Contractor Programs (“OFCCP”) proposed that federal contractors report compensation information on an Equal Pay report. Amid significant contractor comments that OFCCP coordinate with the EEOC to amend the Employer Information Report (“EEO-1”), EEOC did so on January 29, 2016. The EEOC intends to ask the Office of Management and Budget to approve additional data collection that would require most employers to submit aggregate data on pay ranges and hours worked. The EEOC believes that the additional data “will assist [EEOC and OFCCP] in identifying possible pay discrimination and assist employers in promoting equal pay in their workplaces.” However, questions remain whether this data would yield any meaningful analysis of actual pay differences that would assist either agency in uncovering pay discrimination.
With Governor Jerry Brown’s signature, California officially amended its equal pay legislation through the California Fair Pay Act (the Act) to include more employee-friendly provisions. The Act, which now creates the nation’s strongest equal pay protections, seeks to close the pay gap in California. The Act may serve as a model for legislation in other states and supporters are even hopeful the Act’s passage may finally push Congress to pass the Paycheck Fairness Act, which has been introduced in Congress every year since 1994 and upon which California’s legislation was based.