As part of a marathon finish to the 2019 legislative session, the New York State legislature recently passed two new equal pay bills that build on other state and local laws enacted within recent years. The first of the two bills, Senate Bill No. S5248A, broadens the scope of § 194 of the New York Labor Law (“NYLL”) to establish prohibitions on compensation discrimination between employees performing work that is “substantially similar,” and by prohibiting compensation discrimination on the basis of any protected status or classification under the New York State Human Rights Law (“NYSHRL”). The second bill, Senate Bill No. S6549, establishes a broad proscription on salary history inquiries during the recruitment and hiring process. Together, the bills cement New York’s pay equity regime as among the strongest in the country and introduce new compliance challenges and questions in analyzing employee compensation. 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.
As readers of this blog know, pay equity laws and regulations are expanding rapidly in the U.S. at both the federal and local level, as well as internationally. And while regulatory compliance is critical and remains an area to watch (and we’ll keep covering it for you here), employers can take a short breath of relief after a recent victory in one of the key proving grounds for equal pay claims—class and collective action litigation.
On March 29, 2019, in Ahad v. Board of Trustees of Southern Illinois University, the U.S. District Court for the Central District of Illinois decertified an equal pay collective action brought by a group of female physicians. Although the plaintiff alleged that she and other female physicians were paid less than male comparators for equal or similar work under the same compensation plan, Judge Sue E. Myerscough concluded that the opt-in members of the collective action had widely varying practices, duties, and compensation structures that would require many individualized inquiries, making the case inappropriate for treatment as a collective action.
On April 12th, Maine joins a growing list of jurisdictions, including California, Connecticut, Delaware, Hawaii, Massachusetts, New York City (as well as other cities within New York) Oregon, Puerto Rico, and Vermont, that restrict private employers from obtaining salary history information from job candidates and applicants. Within the Northeast region, only Rhode Island and New Hampshire have yet to enact comparable regulations in the public or private sectors, with a bill, HB 221, presently pending before the New Hampshire legislature. 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
In April 2018, an en banc Ninth Circuit held in Rizo v. Yovino that an employer cannot justify a wage differential between male and female employees under the Equal Pay Act by relying on prior salary. Before the Ninth Circuit published its decision, though, Judge Stephen Reinhardt passed away. On February 25th, the U.S. Supreme Court vacated the Ninth Circuit’s decision, reasoning that the appellate court should not have counted Reinhardt’s vote because he passed away before the decision was issued. Instead, the Ninth Circuit should not have released the opinion. 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
On January 1, 2019 at the stroke of midnight, Hawaii joined a growing list of states and municipalities to ban prospective employers from asking applicants about their prior salary history. As we have previously reported, several other jurisdictions have already passed similar laws that place restrictions on salary history during the application process, including California, New York City, Westchester, and Suffolk County, New York. READ MORE
Joining New York City, Westchester, and Albany, the Suffolk County Legislature, on November 20, 2018, adopted its own variation of a salary history ban.
As part of its effort to close gender-based pay gaps, California will now require companies to increase female representation on boards of directors.
Currently, one in four publicly held corporations in California have no women on their boards of directors. SB 826, which Governor Jerry Brown signed into law at the end of September, requires that all publicly held corporations based in California have at least one woman director by December 31, 2019. That is not the end of the requirements; by December 31, 2021, companies with five authorized directors must have a minimum of two female board members, and companies with at least six directors must have a minimum of three females on the board. The California Secretary of State will publish the names of compliant and non-compliant companies on an annual basis. In addition to the “name and shame” provisions, non-compliant companies face fines of $100,000 for the first violation and $300,000 for subsequent violations. READ MORE