While many states across the U.S. continue to develop new equal pay laws, it is also important for global companies to be aware of equal pay laws abroad. Countries far and wide including the United Kingdom, Germany, Canada, Belgium, Iceland and South Africa have instituted various forms of laws addressing pay equity issue. While these laws have varying requirements, we look at Australia as an example of the global picture. 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, LGBT and compensation discrimination topics at the ABA Conference on Equal Employment Law.
Posts by: Christopher Wilkinson
In the wake of the Ninth Circuit’s decision in Rizo v. Yovino, key employer-side groups have expressed support for U.S. Supreme Court review to determine whether employers who rely on prior salary to set starting pay can continue to do so consistent with the federal Equal Pay Act, 29 U.S.C. § 206(d)(1) (“EPA”).
The EPA prohibits sex-based wage differentials between men and women who perform equal work, but allows employers to justify wage differentials even between such employees based on seniority, merit, production, or “any other factor other than sex.” The Ninth Circuit’s recent en banc decision in Rizo held that “prior salary alone or in combination with other factors cannot justify a wage differential” because prior salary is not a “factor other than sex.” 887 F.3d 453, 456 (9th Cir. 2018). The Ninth Circuit reasoned that a “factor other than sex” must be “job-related,” and thus rejected the defendant employer’s exclusive reliance on prior salary as a benchmark against which to set starting pay for new hires. The Court, however, left open the possibility that prior salary could permissibly “play a role in the course of an individualized salary negotiation.” Id. at 461. (For a comprehensive analysis of the Rizo decision, see Can Prior Pay Inform a New Hire’s Salary? (Daily Journal, May 11, 2018)).
On August 30, 2018, the Fresno County Superintendent of Schools, Jim Yovino, filed a petition for writ of certiorari asking the Supreme Court to review the Ninth Circuit’s decision in Rizo. The petition argued that the U.S. Supreme Court should grant review because the Circuit Courts of Appeal diverge on whether prior salary is a “factor other than sex” (see, e.g., Wernsing v. Dep’t of Human Servs., State of Illinois, 427 F.3d 466, 469 (7th Cir. 2005)) and because prior salary is a “factor other than sex” under a plain reading of the EPA.
Since Yovino’s petition for writ of certiorari, several business groups have filed amici curiae briefs urging the U.S. Supreme Court to accept the case. The Chamber of Commerce of the United States of America (Chamber) and the Society for Human Resource Management (SHRM) recently filed a brief for amici curiae in support of Yovino. The Chamber is the world’s largest business federation, representing the interests of 300,000 members and over three million companies and professional organizations. SHRM is the world’s largest human resources professional society, representing 300,000 members in more than 165 countries. Representing strong business interests, the amici brief asserts that the question of whether employers can rely on prior salary history in setting workers’ wages “is of extraordinary significance.” The amici brief argues that the Rizo decision deepens a circuit split on the legality of the widely-used and useful employment practice of relying on prior salary, which is legal in most jurisdictions and is a facially sex-neutral practice. The Chamber and SHRM also argue that the Ninth Circuit’s “tortured reading of the EPA’s catchall defense” could be read to call into question other legitimate and sex-neutral practices that rely on objective information, such as individualized negotiations and competitive salary bidding.
The Center for Workplace Compliance (CWC) and the National Federation of Independent Business (NFIB) Small Business Legal Center also filed a brief for amici curiae in support of Yovino’s petition. The CWC, whose membership includes 240 major U.S. corporations, is the nation’s largest nonprofit association of employers dedicated exclusively to ensuring compliance with fair employment and other workplace requirements. The NFIB is the nation’s leading small business association, with offices across the country. The CWC and NFIB argue that the “Ninth Circuit’s decision  rests on a legally flawed premise—that an employer has an affirmative obligation under the EPA to eliminate disparities in pay, even when those disparities are caused by gender-neutral compensation policies.” The amici brief asserts that review of the Rizo decision is necessary to “resolve issues of substantial importance to the employer community,” and that permitting the decision to stand “will have a profound, largely negative, impact on employers nationwide.”
The U.S. Supreme Court will likely issue a decision on the petition for writ of certiorari later this year. Until then, it remains unclear whether Rizo will remain the guiding precedent in the Ninth Circuit. For employers operating in California, Rizo may not prompt significant changes given that the California Equal Pay Act separately provides that “prior salary shall not, by itself, justify any disparity in compensation.” But employers elsewhere in the Ninth Circuit will need to evaluate their pay practices in light of Rizo unless and until it is overruled. Experienced counsel can assist employers in navigating these complex issues.
For the second month in a row, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has issued guidance to update materials available to federal contractors and subcontractors. On September 19, 2018, the OFCCP issued two broad directives aimed at improving transparency and communications and to implement the highly-anticipated ombud service. These directives respond to contractor complaints related to the length and process for OFCCP audits. READ MORE
A growing number of state and local governments have passed equal pay laws in recent years. These statutes and ordinances have varied in their specific content and have created a patchwork of legal requirements vexing employers who are attempting to comply. Two states have added wrinkles to this patchwork. While many of the obligations have favored employees, Massachusetts and Oregon have attempted to tip the scales to employers by creating “safe harbor” provisions aimed at providing some form of relief for employers who perform voluntary pay audits and correct any adverse findings through “safe harbor” provisions. These provisions, however, raise significant questions that employers must consider before concluding that they are fully protected. READ MORE
In a highly anticipated move, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued its new compensation directive on August 24, 2018. Directive (DIR) 2018-05, Analysis of Contractor Compensation Practices During a Compliance Evaluation, replaces the Obama-era compensation guidance DIR 2013-03, Procedures for Reviewing Contractor Compensation Systems and Practices (referred to as Directive 307). OFCCP also included a list of 22 Frequently Asked Questions (FAQs) with DIR 2018-05. READ MORE
OFCCP recently lost Trump-appointed Director Ondray Harris due to his resignation. Deputy Director Craig Leen takes Harris’s place in the interim. Harris’s departure raises some important questions that covered federal contractors may be asking.
What was Harris able to accomplish during his short tenure? During Harris’s time at the Agency, there were few policy developments. The Agency extended the moratorium on audits for many health care providers who offer medical coverage under the military’s TRICARE program. In addition, the Agency made good on its promise to provide contractors with additional transparency by (1) publishing its scheduling methodology; and (2) releasing a guidance document titled “What Contractors Can Expect” that stresses good behavior by the Agency and its staff. READ MORE
Effective February 27, 2018, the Office of Federal Contract Compliance Programs (OFCCP), which is charged with ensuring federal contractors and subcontractors provide equal employment opportunity, issued Directive 2018-01, announcing that predetermination notices (PDNs) will be sent to federal contractors and subcontractors for all audits and compliance reviews where a finding of unlawful employment discrimination is imminent. 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 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: