Erin M. Connell, a San Francisco employment partner and Co-Chair of Orrick's EEO & OFCCP Compliance Group and Pay Equity Task Force, represents employers in high stakes employment litigation and is an expert in equal employment opportunity law, pay equity, and affirmative action (OFCCP) compliance.
Erin’s practice covers all aspects of employment law, as well as complex business litigation outside the employment context. Erin has defended numerous class actions, EEOC systemic discrimination investigations, and complex individual cases involving claims of discrimination, harassment, retaliation, wrongful termination, and wage-and-hour claims. Erin has particular expertise in the area of pay equity, compensation analyses, and diversity initiatives; and regularly advises clients with respect to OFCCP and other EEO audits.
Erin also is an accomplished trial lawyer. She has tried several cases before juries and in arbitration, and has obtained numerous defense summary judgment rulings and other favorable resolutions in state and federal court. Erin led the trial team that obtained a complete dismissal for Oracle in OFCCP v. Oracle, a high-stakes systemic compensation discrimination case that garnered national media attention and earned Erin and her team recognition as "Litigators of the Week" by the American Lawyer.
Erin's clients include leading technology and Fortune 500 companies, including: Oracle, Facebook, Microsoft, Netflix, Pinterest, SiriusXM, NVIDIA, NetApp, Splunk, Morgan Stanley, Bank of America, Citigroup, and Seagate Technology.
Erin is currently the management chair of the ABA Equal Employment Opportunity Committee, and frequently speaks on California and national employment law issues. She has published numerous articles on employment law in publications around the country, including the ABA Journal of Labor & Employment Law. She also provides training on managing within the law and preventing sexual harassment, and conducts internal investigations on employment-related matters.
Yesterday, the EEOC announced that it does not intend to renew its request for authorization to collect employers’ pay data on the EEO-1 form in future years. The announcement comes less than three weeks before the September 30th deadline for employers nationwide to submit massive amounts of pay data for 2017 and 2018 (a deadline that is not impacted by the EEOC’s announcement).
The rollercoaster saga of the EEOC’s pay data collection (which we previously reported on including here, here, here, here, here, here, and here) began over three-and-a-half years ago when the EEOC announced in January 2016 its plan to revise the EEO-1 form to collect pay data (Component 2 data). The revised EEO-1 form requires employers to submit data on employees’ W-2 earnings and hours worked across broad job categories, and broken down by ethnicity, race, and sex. While the EEOC contends that the revised EEO-1 form will allow it to better assess pay discrimination, employers have expressed numerous concerns, including that the form may indicate “false positives,” as the broad EEO-1 job categories are not designed to group employees who perform similar work (as defined by federal and state equal pay and anti-discrimination statutes). READ MORE
The EEOC has been no stranger to headlines in recent months, particularly on the issue of equal pay. As we recently reported, the EEOC’s long-dormant pay data collection rule, revived by the D.C. District Court in March, has caused an uproar of speculation as employers race to comply with increased data reporting requirements for their annual EEO-1 forms by September 30, 2019. But the EEOC is also busy addressing pay issues in court.
The EEOC has been ordered to collect employers’ EEO-1 Component 2 pay data by September 30, 2019. The D.C. District Court issued the order after finding back in March 2019 that Office of Management and Budget (OMB’s) decision to stay the collection of Component 2 pay data lacked the reasoned explanation required by the Administrative Procedure Act. See our prior blog posts here, here, and here about National Women’s Law Center v. Office of Management and Budget, No. 17-cv-2458 (TSC) (D.D.C.). Since then the court has been critical of the EEOC’s compliance with its order, and held a status conference and a hearing in March and April. READ MORE
Despite some initial news stories to the contrary, uncertainty still remains as to whether and when employers will be required to submit Component 2 pay data to the EEOC. See our prior posts here and here. On March 19, 2019, the parties in National Women’s Law Center v. Office of Management and Budget, No. 17-cv-2458 (TSC) (D.D.C.), participated in a status conference at which they discussed precisely when the EEOC planned to collect Component 2 pay data. The court asked the EEOC why it could not require employers to file Component 2 data by either May 31, 2019, the deadline by which employers are required to submit Component 1 data, or September 30, 2019, the expiration date of the authorization to collect Component 2 data under the Paperwork Reduction Act. READ MORE
The status of the revised EEO-1 form remains unclear, see our prior post here. While the EEOC is currently accepting 2018 EEO-1 Component 1 data, the EEOC does not appear to be accepting Component 2 pay data yet. Instead, the EEOC has stated that it is “working diligently on next steps in the wake of the court’s order in National Women’s Law Center, et al., v. Office of Management and Budget, et al., Civil Action No. 17-cv-2458 (TSC), which vacated the OMB stay on collection of Component 2 EEO-1 pay data. The EEOC will provide further information as soon as possible.” Stay tuned for additional updates.
Uncertainty continues for the EEOC’s attempt to expand the collection of employers’ pay data. Last Monday, the D.C. District Court in National Women’s Law Center v. Office of Management and Budget, No. 17-cv-2458 (TSC) (D.D.C. Mar. 4, 2019), reinstated the EEOC’s revised EEO-1 form that increases employers’ obligation to collect and submit pay data. READ MORE
For the last two decades, Congressional Democrats have attempted to pass the Paycheck Fairness Act. Beginning with the 105th Congress in 1997-98, several legislators have introduced versions of the act, including then-Senator Hillary Clinton in 2005. Following their newly won majority in the House of Representatives, Democratic lawmakers recently re-introduced the Paycheck Fairness Act on January 30, 2019. The proposed bill, H.R. 7, was introduced by Representative Rosa DeLauro (D) and appears to have considerable Congressional support. Notably, cosponsors of H.R. 7 include every Democratic member of the House of Representatives and forty-five Senators. READ MORE
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
As we reported last month, the Oregon Bureau of Labor and Industries (BOLI) issued proposed regulations interpreting the provisions of the new Oregon Equal Pay Act of 2017, which will become effective January 1, 2019.
On November 19, 2018, after receiving a number of comments on proposed rules BOLI filed final rules with the Secretary of State. Stakeholders that provided input on the potential impact of the rules as originally proposed ranged from large law firms and industry groups to small business owners and farmers, as well as multiple higher education institutions (including Oregon State University, Portland State University, the University of Oregon, and the Oregon Community College Association). READ MORE
The Oregon Bureau of Labor and Industries (BOLI) has issued proposed regulations interpreting the provisions of the new Oregon Equal Pay Act of 2017, which will become effective January 1, 2019. Although the prohibition against “seek[ing]” salary history from applicants already is in effect, many of the law’s most significant provisions go into effect on January 1. READ MORE