Posts by: Mike Delikat

On the Road Again: EEO-1 Data Collection is Back and More Important than Ever

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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).

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Activist Shareholder Proposals and HCM Disclosures Pivot to Diversity, Equity, and Inclusion in 2021

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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.

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Just a SEC – Agency Adopts New Rules Impacting Pay Equity Shareholder Proposals

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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.

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An Update On Pay Gap Shareholder Proposals

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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 →

Female Athletes Are Looking to Score Big with New Equal Pay Lawsuit

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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 →

Hitting Home: Law Firms are Now the Target of a Spate of New Pay Equity Cases

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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 →

Employer Alert: California Pay Equity Task Force Issues Guidance on Fair Pay Act

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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 →

Mind the Gap? What Do the UK Pay Disclosures Really Tell Us?

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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 →

En Banc Ninth Circuit Throws In Its Two Cents Regarding Use of Prior Salary Information To Justify Pay Differentials

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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 →

School’s Out! Ninth Circuit Holds Prior Salary of Teachers Can Justify Pay Differentials

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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 →