Since 2015, pay gap disclosure has been front and center on the activist shareholder proposal landscape from an employment and workforce perspective. Following closely on the heels of tragic events of last summer and the significant advancement of the Black Lives Matter movement, activist shareholder groups have pivoted away from proposals requiring disclosures of pay gap statistics and are instead focused on other dimensions of internal diversity, equity, and inclusion (“DEI”). These initiatives seek more broad-based disclosure of whether and how companies are managing gender and racial disparities in representation – including, for example, in the boardroom and at senior management levels within an organization. Combined with recent rule changes at the U.S. Securities and Exchange Commission (“SEC”) with respect to required Human Capital Management disclosures, public companies should prepare for how they will respond to proposals seeking different and new disclosures regarding steps they are taking to expand and maintain diversity within their workforces.
Alex Mitchell is a member of Orrick's Employment Law Group.
Alex graduated with honors from the University of Pittsburgh School of Law, where he was awarded the Thomas M. Cooley Legal Writing Award in two consecutive years. He graduated concurrently from Carnegie Mellon's Heinz School, where he was awarded a degree with distinction in public policy and management. While in law school, Alex was an honors legal intern at the Department of Defense, where he participated in a wide variety of legal matters ranging from employment litigation to federal acquisitions.
Alex’s practice focuses on litigation and counseling across a wide range of employment issues claims, including discrimination, harassment, retaliation, wrongful discharge, and wage and hour issues. Alex’s practice also includes investigating internal employee relations matters, preparing employee handbooks and policies, and drafting employment contracts and other employee agreements.
Posts by: Alex Mitchell
On September 23, 2020 the Securities and Exchange Commission (“SEC”) adopted amendments to 17 C.F.R. § 240.14a-8 (“Rule 14a-8”), raising the bar for shareholders seeking to force votes on proposals. The rule comes on the heels of persistent and repeat shareholder proposals in various areas including, notably, pay gap data reporting.
A California district court dealt a blow to the U.S. Women’s National Team’s (WNT) equal pay case on May 1, granting partial summary judgment to the United States Soccer Federation (USSF) in the headline-grabbing case filed last year. The decision dismisses the team’s compensation discrimination claims under both the Equal Pay Act (EPA) and Title VII but mostly leaves intact the WNT’s remaining discriminatory working conditions claims. We previously blogged about the case here.
On March 6, 2020, U.S. Secretary of Labor Eugene Scalia published Secretary’s Order 01-2020, which is among the first of his management decisions since his confirmation back in September. The Order, titled the “Delegation of Authority and Assignment of Responsibility to the Administrative Review Board,” establishes the Secretary’s authority to review, at his discretion, decisions of the Department of Labor (DOL)’s Administrative Review Board (ARB), including decisions arising out of enforcement actions brought by the Office of Federal Contract Compliance Programs (OFCCP). The Order represents a shift in procedure before the Office of Administrative Law Judges (OALJ) and introduces various new process and substantive legal questions to be aware of in connection with contractor pay discrimination enforcement actions. READ MORE
For nearly five years, major U.S. corporations have been subject to intense scrutiny over their decisions on whether to release internal pay gap percentages in response to shareholder proposals by Arjuna Capital, LLC and other activist shareholder groups. As these activist groups maintain a keen interest in seeking compensation-related disclosures from industry giants, employers should be mindful of certain issues in considering their response. READ MORE
As part of a marathon finish to the 2019 legislative session, the New York State legislature recently passed two new equal pay bills that build on other state and local laws enacted within recent years. The first of the two bills, Senate Bill No. S5248A, broadens the scope of § 194 of the New York Labor Law (“NYLL”) to establish prohibitions on compensation discrimination between employees performing work that is “substantially similar,” and by prohibiting compensation discrimination on the basis of any protected status or classification under the New York State Human Rights Law (“NYSHRL”). The second bill, Senate Bill No. S6549, establishes a broad proscription on salary history inquiries during the recruitment and hiring process. Together, the bills cement New York’s pay equity regime as among the strongest in the country and introduce new compliance challenges and questions in analyzing employee compensation. READ MORE
On April 12th, Maine joins a growing list of jurisdictions, including California, Connecticut, Delaware, Hawaii, Massachusetts, New York City (as well as other cities within New York) Oregon, Puerto Rico, and Vermont, that restrict private employers from obtaining salary history information from job candidates and applicants. Within the Northeast region, only Rhode Island and New Hampshire have yet to enact comparable regulations in the public or private sectors, with a bill, HB 221, presently pending before the New Hampshire legislature. READ MORE
On January 1, 2018, Iceland’s amended Equal Pay Standard took effect, the latest in a serious of measures seeking to address the persistence of national gender wage gaps. The law requires employers with 25 or more employees to obtain a government certification every three years verifying a company’s compliance with equal pay requirements. Failure to attain certification exposes employers to liability of up to nearly $500 in penalties per day. Employers with an observed pay differential can comply by raising the salaries of employees to eliminate the differential. READ MORE
The California legislature is poised to continue its trailblazing streak of equal pay legislation with a new pay gap reporting bill. If approved and signed by Governor Jerry Brown, AB 1209 would add Section 2810.7 to the California Labor Code and require certain large employers to report pay gap statistics on an annual basis beginning in 2019. READ MORE