The federal Equal Pay Act (EPA) and its many state analogs require equal pay for equal (or, in some states, “substantially similar”) work. The EPA contains a so-called “catch-all” defense to equal pay claims, permitting wage differentials if employers can show that they are “based on any factor other than [protected category].” But this catch-all defense has been under scrutiny in courts and legislatures around the country. As we recently reported, an en banc Ninth Circuit rejected an employer’s argument that sole reliance on prior pay could be a “factor other than sex” within the meaning of the EPA. The Ninth Circuit’s finding is an outlier among circuit courts in this respect, but it fits a broader trend to narrow the “catch-all” affirmative defense, particularly at the state level. READ MORE
The State of New Jersey’s Division on Civil Rights (“DCR”) recently issued new Guidance on the Diane B. Allen Equal Pay Act (“EPA”). The EPA, which took effect July 1, 2018, was already the most sweeping equal pay legislation in the nation by strengthening already existing equal pay protections found in the New Jersey Law Against Discrimination (“LAD”). As Governor Murphy announced on March 2, 2020, the Guidance goes even further and “make[s] clear our intentions to eliminate discriminatory pay practices in the Garden State that have historically prevented women and other marginalized groups from earning their fair share.” READ MORE
Following months of waiting the UK Government has finally published its draft regulations on the new “gender pay gap reporting” requirements in the UK. On publication of the draft regulations, the UK Government has asked one final consultation question: “What, if any, modifications should be made to these draft regulations?” – And so it would appear that the draft regulations are nearing but possibly not quite in final form, pending any pertinent responses received.