Employment Law

Pay Transparency to Current Employees – New Laws Require More Than Job Posting Disclosures

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In 2021, employers had to grapple with a host of new pay transparency requirements across the country, which we previously outlined here.  While most of these concern requirements to provide salary range information to applicants to posted jobs, several require disclosure of salary range information to current employees under certain circumstances.  Employers who have addressed pay range disclosures in job postings are well-advised to also review their practices with respect to current employees to ensure compliance. READ MORE →

Germany’s Federal Labor Court Boosts Enforcement of Equal Pay

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Germany is not exactly known to be a pioneer when it comes to equal pay. In Germany, the pay gap remains particularly large and is only closing slowly, according to the Federal Statistical Office. The Federal Labor Court now took a step ahead to strengthen women’s rights in its latest ruling which will enable women to enforce their rights and simplify proceedings in equal-pay cases by putting the burden of proof on employers. READ MORE →

Ready, Set, Respond: OFCCP Issues Final Rule on Evidentiary Standards and Predetermination Notice Procedure

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On November 5, 2020, the Office of Federal Contract Compliance Programs (“OFCCP”) issued a final rule defining the evidentiary standards it will use for proving discrimination claims by federal contractors, revising the process for notifying contractors of potential violations, and outlining an option for contractors to participate in an “expedited” dispute resolution process.  It will take effect on December 10, 2020.  Notably, the rule deviates significantly from the version initially proposed by OFCCP on December 30, 2019, which relied far more heavily on statistics and came under intense scrutiny from the contractor community, including the U.S. Chamber of Commerce.  According to OFCCP, the requirements laid out in the final rule will increase transparency and create clear parameters for contractor compliance with equal employment opportunity laws.  READ MORE →

Say It Again: No Common Question Binds a Class Subject to Thousands of Individualized Pay Decisions

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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 →

OFCCP Director’s Departure Should Not Change Agency’s Priorities

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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 →

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 →