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
Chris Wilkinson maintains a broad practice in labor and employment, Equal Pay, health and safety, government relations and administrative law.
Chris most recently served as Associate Solicitor for Civil Rights and Labor-Management. In that role, Chris was the senior career civil rights and labor management lawyer for the Department of Labor providing advice on regulatory, policy and enforcement matters for seven DOL agencies including the Department’s Office of Federal Contract Compliance Programs, Civil Rights Center and Office of Labor Management Standards.
Chris counseled the Department on a broad array of equal employment opportunity regulatory and policy initiatives and advised on a wide range of constitutional and statutory matters in federal courts including the Supreme Court of the United States. In addition to EEO matters, Chris led the Solicitor Office’s union election and reporting enforcement work, counseled on transit labor certification matters and advised on appellate matters related to labor union practices.
Chris also has significant litigation experience having served as trial attorney and then Counsel for Civil Rights Programs in the Department’s San Francisco region. In those roles, he litigated a number of complex class wage-and-hour, class discrimination, health and safety citations, and Sarbanes-Oxley and other whistleblower matters.
Chris is an active member of the America Bar Association, having presented on numerous federal contractor compliance, LBGT and compensation discrimination topics at the ABA Conference on Equal Employment Law.
Posts by: Christopher Wilkinson
The President released his budget which includes separate proposals for various government agencies. The budget proposal for the Office of Federal Contract Compliance Programs (OFCCP), which oversees affirmative action and non-discrimination requirements for federal contractors, includes a plan for the government to fold the agency into the Equal Employment Opportunity Commission (EEOC). The proposal tasks OFCCP with working collaboratively to develop and implement a plan to complete the merger by September 30, 2018. The proposal touts increased efficiencies in the form of consolidated government EEO oversight and enforcement “under one roof.” Perhaps to facilitate this move to a common agency, the administration has proposed slashing OFCCP’s budget by over $17 million to $88 million for FY 2018 and reducing staff by 131 positions. This would be accomplished by closing field office locations and other cost savings measures.
The proposed merger raises many questions including: READ MORE
Yesterday, the EEOC announced that it had finalized a regulation that will increase disclosure requirements regarding employee compensation for thousands of businesses. The new rule, which we’ve blogged about previously, requires all businesses with 100 or more workers to submit pay data by gender, race and ethnicity on their EEO-1 forms. Specifically, employers will now need to provide:
The Government Accounting Office recently released a report on the DOL’s Office of Federal Contract Compliance Programs (OFCCP). The report notes several concerns related to the Agency’s contractor selection process, investigator training and compliance assistance efforts. Further, the report details many of the concerns voiced by contractors regarding inconsistency in investigations and contractors’ overall distrust of the Agency in compliance assistance efforts. OFCCP received a draft of the report and, in its response to the draft report, agreed with some of the recommendations related to changes in the selection process and better monitoring of contactors for AAP compliance. Further, the Agency noted its efforts to improve training and compliance assistance.
On August 1, 2016, Governor Charlie Baker signed into law a pay equity bill which the Massachusetts Legislature passed by unanimous vote on July 23, 2016. The pay equity act is one of the strongest and most unique in the nation. Chief among the unique features is the prohibition on the use of prior salary in setting compensation and an affirmative defense for employers who conduct pay audits. The legislation differs from the federal Equal Pay Act (EPA) and other recent state pay equity laws, including California and Maryland, in several ways.
Comparable Work Presents a Broader Standard
The EPA requires that men and women in the same workplace receive equal pay for “equal work.” “Equal work” means their jobs need not be identical, but “substantially equal.” The newly passed Massachusetts legislation only requires “comparable work,” meaning work that is substantially similar in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions. Thus, the legislation will give employees a larger pool of “comparator jobs” to point to should they feel underpaid in relation to their gender opposites. In fact, the “comparable work” standard appears to be similar to the broader-based standard used in pay-disparity claims under Title VII, except that Title VII also requires proof of intent. Recent Maryland and California laws also expand the pool of comparators. READ MORE
The EEOC has provided a second chance to comment on its proposed revisions to the EEO-1 form. The revised proposal does not change the EEOC’s insistence on collecting pay and hours worked data and does not fully respond to employers’ concerns regarding the burden and usefulness of collecting the data. Rather, the EEOC revised the report to change the due dates to coordinate reporting of demographic and additional data beginning in March 2018. The comment period for the revised proposal closes August 15, 2016.
The EEOC’s efforts arise from the government’s larger efforts to enforce pay equity through a series of reporting, enforcement and voluntary initiatives. This reporting initiative follows a now-abandoned effort by the Office of Federal Contract Compliance Programs (OFCCP) to obtain pay data in an equal pay report. EEOC has joined with OFCCP to collect and share pay data to bolster its reporting and enforcement efforts.
On January 29, 2016, the EEOC asked the Office of Management and Budget to approve a change to the EEO-1 form. As discussed in more detail here, EEOC proposed that beginning in September 2017, EEO-1 filers with 100 or more employees would be required to submit EEO-1 data to include aggregated W-2 pay and hours worked data. The Agency scheduled hearings and invited various stakeholders including Orrick’s Gary Siniscalco to testify regarding the proposal. Orrick’s testimony can be found here. READ MORE
The federal government announced yesterday that it was stepping up its equal pay efforts. Coinciding with “The White House United State of Women” summit being held in Washington D.C., the White House announced several initiatives including new Department of Labor rules regarding sex discrimination for federal contractors and grant programs for job training. The White House also unveiled a White House Equal Pay Pledge. The pledge is part of a voluntary program in which 28 corporations to date have agreed to conduct “an annual company-wide gender pay analysis across occupations,” to “review hiring and promotion processes and procedures to reduce unconscious bias and structural barriers,” and “to embed equal pay efforts into broader enterprise-wide equity initiatives.”
As we noted in a previous post, Maryland Governor Larry Hogan signed the Equal Pay for Equal Work Act of 2016 (“Equal Pay Act”) into law on May 19, 2016 (effective on October 1, 2016). With the passage of this new law, Maryland joins New York and California in the category of states with some of the country’s most expansive equal pay protections. Included below are our updated maps of states with equal pay protections and of states with equal pay protections and states with pending equal pay legislation.
Last week, Maryland became the most recent state to expand its equal pay protections, when Governor Larry Hogan signed the Equal Pay for Equal Work Act of 2016 (“Equal Pay Act”) into law. Maryland joins states like New York and California, which have some of the country’s most expansive equal pay protections. Unlike New York and California, Maryland’s law was signed by a Republican governor, which establishes that equal pay efforts have crossed party lines. The new law introduces two new features into the equal pay fray: gender identity and “work of comparable character.”