We have reported previously on the efforts in Congress to pass the Paycheck Fairness Act which, among other things, would expand damages under the Equal Pay Act (EPA), weaken an employer’s ability to raise certain affirmative defenses in wage discrimination cases, and ease the requirements for bringing a class action lawsuit under the EPA. With the strong support of the Obama Administration, the Paycheck Fairness Act was reintroduced in the Senate on May 22, 2012, but supporters of the bill failed to garner the necessary number of votes to advance it to a final Senate vote. Therefore, it appears that passage of the Paycheck Fairness Act in this calendar year is highly unlikely.
Despite this most recent defeat of the Paycheck Fairness Act, employers need to be vigilant about reviewing their pay practices, paying particular attention to issues of gender equity. Pay discrimination continues to be an issue for federal regulatory bodies headed by Obama Administration appointees, which include the National Labor Relations Board, the Office of Federal Contract Compliance Programs (OFCCP) and the Equal Employment Opportunity Commission. These agencies are beefing up their regulations and their compliance enforcement programs to push employers in the direction that the unsuccessful legislation efforts of the last two years would have required them to go. This is particularly true with respect to the OFCCP, which is headed by Patricia Shiu, who reportedly is a champion of gender equity. Ms. Shiu, who is deputy assistant secretary to the Secretary of Labor, also serves on the National Equal Pay Enforcement Task Force, which has been charged by President Obama with cracking down on violations of equal pay laws.
Employers should expect to face increased scrutiny by federal agencies regarding pay issues and be proactive in reviewing their pay practices, evaluating pay discrepancies among employees, and correcting those discrepancies if warranted. If necessary, employers should consult with employment counsel regarding best practices for compliance and for avoiding potential claims.