In April 2018, an en banc Ninth Circuit held in Rizo v. Yovino that an employer cannot justify a wage differential between male and female employees under the Equal Pay Act by relying on prior salary. Before the Ninth Circuit published its decision, though, Judge Stephen Reinhardt passed away. On February 25th, the U.S. Supreme Court vacated the Ninth Circuit’s decision, reasoning that the appellate court should not have counted Reinhardt’s vote because he passed away before the decision was issued. Instead, the Ninth Circuit should not have released the opinion. READ MORE
You may be asking yourself: How is it already almost 2019?! With the New Year fast approaching, for those employment law enthusiasts out there, here are some legal issues that you want to keep in mind as you look back on 2018 and forward to 2019:
Year-End Bonuses: Employers distributing holiday bonuses, holiday gift cards, year-end merit bonuses, and other types of compensation to nonexempt employees should consider whether the compensation must be included in a nonexempt employee’s “regular rate” of pay when calculating overtime. The Code of Federal Regulations carves out some specific types of pay that need not be included in an employee’s regular rate of pay. For example, Section 778.211 excludes purely discretionary bonuses and section 778.212 excludes gifts for Christmas and other special occasions. So, an employer giving employees gift cards for the holidays or other special occasions is not required to incorporate the value of those gift cards into an employee’s regular rate of pay as long as the amounts “are not measured by or dependent on hours worked, production, or efficiency.” See 29 C.F.R. § 778.212(a); 29 U.S.C.A. § 207.
Echoing an increasingly familiar refrain, another district court has declined to certify a class of women bringing pay equity claims on the basis that they did not present a common question capable of producing a common answer to “the crucial question why was I disfavored.” Relying largely upon Wal-Mart Stores, Inc. v. Dukes, the court found certification inappropriate because the putative class members were subject to countless independent decisions involving the judgment and discretion of individual managers. The case also serves as another reminder that courts (including California state courts) will not accept an overly simplistic analysis comparing broad job categories or titles, but will continue to look at actual business practices and job responsibilities to ensure comparators are “similarly situated” so a meaningful pay comparison can be made. READ MORE
In recent years, the volume of equal pay lawsuits has continued to increase in Silicon Valley, despite technology companies reaffirming their commitment to equal pay policies and practices. Earlier this month, Hewlett Packard Enterprise Co. (“HP”) was hit with the latest equal pay lawsuit. The class action lawsuit, filed in Santa Clara Superior Court, alleges that HP discriminated against its female workers by paying them less than their male counterparts and funneling women into certain jobs based on stereotypes. READ MORE
On June 14, 2016, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) unveiled its final sex discrimination guidelines governing covered federal contractors. The OFCCP proposed changes to the rule on January 30, 2015 and the official comment period closed on April 14, 2015, following a two-week extension so that it could take comment on the Supreme Court’s pregnancy discrimination decision in Young v. United Parcel Serv., Inc. The final rules come six months after the expected date on the fall regulatory agency but were released to coincide with the White House Council on Women and Girls first “United State of Women” summit, which was also held on Tuesday. Our coverage of that event can be found here
Plaintiff Lynne Coates filed a class action lawsuit against Farmers on April 29, 2015 alleging gender discrimination claims under Title VII and California’s Fair Employment and Housing Act, including violations of the federal and California equal pay acts and California’s Private Attorneys General Act. In this post on Orrick’s Equal Pay Pulse blog, Orrick attorneys Erin Connell, Allison Riechert Giese and Megan Lawson examine Coates v. Farmers and what it means for employers as well as future equal pay claims in California.
Statistics reveal a difference of 7 percent between the remuneration paid to men and that paid to women with the same qualifications in Germany. The average hourly wage even shows a difference of 22 percent, making pay discrepancy in Germany one of the highest in the EU. In order to adjust these wage injustices, the German Federal Ministry for Family Affairs, Senior Citizens, Women and Youth submitted a first preliminary ministerial draft of the German Equal Pay Act (Entgeltgleichheitsgesetz) on December 9, 2015. The act is expected to be adopted in 2016.
Today marks the twentieth anniversary of “Equal Pay Day,” which the National Committee on Pay Equity launched as a public awareness event in 1996 to symbolize how far into the year women must work to earn what men earned in the previous year. In more than 50 years since enactment of the federal Equal Pay Act (“EPA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”), women have made significant progress in the workplace and now make up roughly half of the American workforce. However, women working full time still earn, on average, 79 cents for every dollar earned by men, and this number has barely moved in over a decade. That said, it is still not clear that employer bias is to blame for the gap that remains. Indeed, the pay gap measures only the difference in average earnings between all men and all women; it is not a proxy for pay bias—i.e., the failure to pay women equal pay for equal work. Eliminating pay bias is important, but focusing heavily on perceived employer bias obscures a much more complex web of factors contributing to the problem of pay differences between men and women.
As California employers adjust to recent amendments to the state’s Equal Pay Act, additional changes are looming. As we reported here, last year, California adopted the Fair Pay Act, which provides new pay equity provisions related to employees of the opposite sex. Those amendments took effect on January 1, 2016. Now, California lawmakers are setting their sights on pay disparities based on race and ethnicity. On February 16, 2016, California Senator Isadore Hall III (D-South Bay) introduced Senate Bill 1063, known as the Wage Equality Act of 2016 (“SB 1063”), which seeks to expand pay equity requirements beyond sex to include race and ethnicity.
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.