In the wake of the Black Lives Matter movement and a nationwide push towards greater equality, transparency and accountability, the California legislature this week passed a bill (SB 973) that would establish at the state level the equivalent of the EEOC’s discontinued EEO-1 pay data collection form. If signed by Governor Newsom, SB 973 would require that starting March 31, 2021 every California employer with 100 or more employees who files a federal EEO-1 report must annually submit a pay data report to the California Department of Fair Employment and Housing (“DFEH”) that discloses: (1) the number of employees by race, ethnicity, and sex in each of ten broad job categories, and (2) the number of employees by race, ethnicity, and sex whose annual earnings (defined as W-2 income) fall within each of the pay bands used by the United States Bureau of Labor Statistics in the Occupational Employment Statistics survey. Employers with multiple establishments must submit a consolidated report, as well as a report for each establishment. READ MORE
Necia Hobbes is a member of the firm’s employment law group at Orrick’s Global Operations & Innovation Center in Wheeling, West Virginia. She has a broad range of experience litigating in federal, state and administrative courts.
Necia’s employment law practice focuses on federal court discrimination litigation, as well as complex litigation and class actions, including pay equity claims, wage and hour disputes, and OFCCP administrative claims. She handles cases from inception through to appellate briefing and strategy, and assists companies with a variety of compliance-related challenges including internal investigations, pay equity analyses, and government investigations and audits.
Prior to joining Orrick, Necia handled all aspects of general litigation cases at another global law firm including acting as lead counsel in approximately 50 cases in federal, state and administrative courts.
Additionally, Ms. Hobbes served as a judicial law clerk for the Honorable D. Michael Fisher of the United States Court of Appeals for the Third Circuit and obtained a graduate degree from Carnegie Mellon University’s H. John Heinz III School of Public Policy & Management. She previously consulted with the Office of High School Reform for the Pittsburgh Public Schools, served as a Coro Fellow in Public Affairs with the Coro Center for Civil Leadership in Pittsburgh, PA, and worked as a project manager and writer at a market research firm.Ms. Hobbes is dedicated to pro bono and community service, and has volunteered advising non-profit organizations through employment law challenges related to COVID-19, developing resources on international anti-trafficking laws, and litigating immigration cases assisting refugee children fleeing violence in Central America, civil cases helping prisoners pursue their constitutional rights, and state court petitions for transgender legal name changes. She has volunteered in the past with women’s rights and immigration advocacy organizations, and teaching English in Kathmandu, Nepal.
Posts by: Necia Hobbes
Today, the EEOC formally confirmed that it will not renew its request for authorization to collect employer’s pay data under Component 2 of the EEO-1 moving forward. The notice is consistent with its announcement last September, marking the end of a four-year saga over whether the pay data collection would go ahead (as we reported here, here, here, here, here, here, here, here, and here). Notably, the notice does not explain how the EEOC intends to use the pay data it already has collected, although it makes reference to using it in Title VII proceedings. It does, however, confirm the EEOC’s intentions regarding sharing the EEO-1 pay data, including that the EEOC does not intend to share it with the Office of Federal Contract Compliance Programs (“OFCCP”), but under certain circumstances may share it with state and local fair employment practices agencies (“FEPAs”). The notice also provides guidance regarding a potential pay data collection by the EEOC in the future, including that the EEOC intends to “develop a plan for using pay data before initiating any data collection.” READ MORE
The past month has brought notable pay equity developments to the Mid-Atlantic, including pending legislation in Maryland, and a Third Circuit decision that might have far-reaching effects beyond the Philadelphia salary history ban that it upheld. READ MORE
The Second Circuit ruled this month in Lenzi v. Systemax, Inc. that “Title VII does not require a showing of unequal pay for equal work.” Drawing a line between the Equal Pay Act (“EPA”) and Title VII, the court held that “all Title VII requires a plaintiff to prove is that her employer ‘discriminate[d] against [her] with respect to [her] compensation . . . because of [her] . . . sex.’”
Last week, U.S. District Court Judge Tanya S. Chutkan ruled that the EEOC may not discontinue its pay data collection efforts on November 11, 2019, but rather, must continue its collection efforts until it has collected from at least 98.3% of eligible reporters and must make all efforts to do so by January 31, 2020. The ruling is the latest in a lengthy saga regarding whether EEO-1 Component 2 pay data (data on employees’ W-2 earnings and hours worked across broad job categories, and broken down by ethnicity, race, and sex) would be collected—a saga that began with the Office of Management and Budget staying collection efforts, and culminated last Spring when Judge Chutkan ruled the decision to stay the collection lacked the reasoned explanation required by the Administrative Procedure Act (see overview here). After vacating the stay, Judge Chutkan initially set the deadline for data collection for May 31, 2019, but later extended it to September 30, 2019. READ MORE
In recent weeks, the Office of Federal Contract Compliance Programs (“OFCCP”) has entered into four major settlements that are notable both for their size, and for highlighting current trends. Each case involved allegations of race and gender-based compensation discrimination, with settlements in the millions: Dell settled for $7 million to resolve the allegations, Goldman Sachs settled for just shy of $10 million, Intel Corporation settled for $5 million, and Bank of America settled for $4.2 million. These amounts represent some of the largest settlements ever reached by OFCCP. READ MORE
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
2019 is not even two months old and already there are significant developments in equal pay legislation. As we explained recently, there is proposed federal legislation that reignites the battle to pass the “Paycheck Fairness Act.” And now states are getting in on the action with a flurry of legislative activity around pay equity issues – particularly among legislatures that saw a change in party control as a result of the November elections. In fact, a number of states have introduced a variety of pay equity proposals, making clear that salary history bans and wage discussion protections are here to stay. Proposed new legislation also looks to refine the bona fide factors that employers may consider in setting pay, as well as remedies available under the pay laws. 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