As COVID-19 vaccination programs gain speed across the country, and employers consider long-term reopening plans, the Equal Employment Opportunity Commission (EEOC) has announced that starting April 26, 2021, it will begin the EEO-1 data collections it had delayed for nearly a year due to the pandemic. Recognizing the ongoing impacts of the pandemic, however, it is providing twelve weeks (instead of just 10) to complete submissions. Employers will need to submit two years of data (for 2019 and 2020) by Monday, July 19, 2021. Unlike the last time, employers will not need to submit “Component 2” pay data (as we reported here).
He also is the founder of the firm’s Whistleblower Task Force. He previously served as the Managing Director of Orrick’s Litigation Division.
Under Mike's leadership, Orrick’s Employment Law & Litigation group was recently named Labor & Employment Department of the Year in California for the fourth consecutive year by The Recorder, the premier source for legal news, in recognition of their significant wins on behalf of leading multinational companies on today’s most complex and challenging employment law matters. The practice group has also been chosen as one of the top national employment law practices by Law 360. Chambers USA and Chambers Global has ranked him in Band 1 since it began publishing its rankings, noting he is a "giant of the employment bar, widely regard as an expert in whistleblowing matters and sex harassment claims","sought out by premier clients to handle high-stakes employment litigation and investigations," and "a very persuasive advocate who knows the law inside out and is able to get to the heart of the issue very quickly."
He represents a broad range of major corporations and other institutions including law firms in all facets of labor and employment law. Mike has an active trial, arbitration and appellate practice and handles a number of high-visibility class action and impact cases.
Posts by: Mike Delikat
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.
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.
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
The world of professional sports has long grappled with criticism of the stark pay differences between male and female athletes – think Billie Jean King’s “equal pay for equal play” push. A recent case brought by twenty-eight players on the United States Women’s National Soccer team (WNT) against the U.S. Soccer Federation (USSF) launched the issue back to the forefront of the pay equity arena earlier this month. READ MORE
Big Law is no stranger to providing advice on pay equity or defending pay equity lawsuits. But until recently, headlines generally featured lawsuits challenging the compensation practices of their clients, not the law firms that represented them.
In the last two years, however, Big Law has itself moved into the spotlight with a wave of pay equity suits brought by aggrieved female partners and, in some cases, female associates. To date, the number of these suits against Big Law—either pending or concluded with multi-million-dollar settlements—has reached double digits and shows no signs of slowing down. We think the details are worth a second look—particularly in light of the complicated dynamics at play in how law firm partner compensation is set. READ MORE
The California Pay Equity Task Force recently published guidance and approved resources for employer compliance with the state’s equal-pay laws. As we continue to track developments in this arena and await further interpretation from the courts, employers should be aware of this comprehensive and illustrative guidance in reviewing their hiring and compensation practices. READ MORE
1. Mandatory reporting under the methodology required by the government indicates some large pay gaps. What does that mean?
As of 17 April 2018, 10,364 employers had published their gender pay gap figures. What have we learnt? That almost eight out of ten employers are paying men, on average, more than women?
Well … yes – sort of, but that’s not the full picture. Remember, gender pay reporting is an entirely different calculation to that of equal pay (and pay equity in the U.S.) – you cannot conclude that an average gender pay gap of 59 percent means that a female employee earns 41p for every £1 her male colleague earns. A more accurate, but admittedly less provocative, title for reporting would be the ‘gender opportunity gap’ or, as energy company Shell coins it, the ‘talent gap’. READ MORE
Last year, we covered a Ninth Circuit panel decision which concluded that an employer may rely on prior salary information as an affirmative defense to claims under the federal Equal Pay Act (“EPA”) if “it show[s] that the factor ‘effectuate[s] some business policy’ and that the employer ‘use[s] the factor reasonably in light of the employer’s stated purpose as well as other practices.’” An en banc Ninth Circuit has now reversed the panel’s prior opinion. READ MORE
As schools across the country prepare for summer break, the Ninth Circuit overturned a lower court decision against the Fresno County public school district which had found that its pay practices were unlawful. Notably, the Ninth Circuit held that an employer may rely on prior salary as an affirmative defense to claims under the federal Equal Pay Act (“EPA”) if “it show[s] that the factor ‘effectuate[s] some business policy’ and that the employer ‘use[s] the factor reasonably in light of the employer’s stated purpose as well as other practices.’” READ MORE