Equal Pay

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In the long-running case of Asda Stores v Brierley and others, the Supreme Court ruled that, for the purposes of an equal pay claim, a group of female retail store employees could rely upon the work of mainly male depot distribution employees for comparison even though they are located at different sites.

Generally speaking, an equal pay claim can only progress if the claimant can establish a disparity between their contractual terms and those of an appropriate comparator of the opposite sex performing equal work at either:

  • the same establishment; or
  • a different establishment where “common terms” apply either generally or between the individual and their comparator.

Continue Reading Equal pay: Comparators in different establishments

Federal contractors and other employers should anticipate greater scrutiny related to their compensation policies and practices as a result of recent policy shifts. President Biden has made it clear that a key priority of his administration is closing the gender and racial wage gap that currently exists in the United States, and that he plans to encourage changes at both the state and federal levels. At the federal level, that means the reintroduction of the Paycheck Fairness Act, the rollout of new policy initiatives, and the issuance of executive orders. This prioritization of pay equity will likely result in renewed enforcement efforts related to pay discrimination from the Office of Federal Contract Compliance Programs (OFCCP). State legislatures also continue to pass laws enhancing pay equity and transparency.

Background

The Equal Pay Act (EPA), passed in 1963, was one of the first anti-discrimination laws enacted and was intended to abolish wage disparity based on sex. The act prohibits wage discrimination between men and women who perform jobs that require substantially the same skill, effort and responsibility within the same company. Despite the existence of the EPA, however, the gender-wage gap still exists with the focus on pay disparities across both gender and race, as evidenced by statistical data.

Biden priority

On International Women’s Day, March 8, 2021, President Biden created the White House Gender Policy Council via Executive Order, to ensure that gender equity and equality are pursued in domestic and international policy. Specifically, the Council is tasked with advancing gender equity and equality by coordinating federal policies and programs that address the structural barriers to women’s participation in the labor force and by decreasing wage and wealth gaps. The Council is to work closely with the Domestic Policy Council, which is coordinating the interagency, whole-of-government strategy for advancing equity, as set forth in Executive Order 13985 of January 20, 2021 (Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.) In addition, the President has promised additional funding for agencies such as the Equal Employment Opportunity Commission (EEOC), the U.S. Labor Department’s Office of Federal Contract Compliance Programs, and the Justice Department’s Civil Rights Division to investigate violations and enforce pay equity laws.Continue Reading Biden’s pay equity priority: federal and state updates, and what federal contractors can expect going forward

This installment of our ongoing series prognosticating about the new Presidential administration focuses on the regulatory environment employers may face. President-elect Trump has promised to revoke a number of the more employee-friendly measures that the Obama Administration has passed over the previous eight years.  Additionally, Ivanka Trump, who was influential throughout her father’s campaign, has reiterated her intention to fight for equal pay for women and family leave policies. 
Continue Reading What Employers May Expect with Trump in Office

With summer 2016 almost behind us, employers should begin to plan for the major labor and employment law trends expected to emerge in the last quarter of the year and into 2017. In the first part of this two-part series, we looked at some of the principal trends likely to be shaped by federal regulators. …

On 1 October 2016, regulations are expected to come into force in the UK which will require large private and voluntary sector employers to report annually on gender pay gap information. To give employers time to get to grips with the new obligation, the Government is expected to set 29 April 2018 as the deadline for the first report. However, with a lot of work to do to prepare, this is not as far away as it seems – particularly given that companies will be required to report on bonuses paid for a 12-month period which started 1 May 2016.

We explain below what employers should be doing now to get their house in order and to ensure they are ready to report on time and in a way which promotes and protects their businesses.
Continue Reading Gender Pay Gap Reporting – Why It Matters Now

On October 21, 2015, New York Governor Andrew Cuomo signed into law a series of bills that expands the state’s gender-based employment protections. The bills are part of a legislative package, known more commonly as the Women’s Equality Act, which Cuomo first introduced back in 2013 in an effort to combat perceived workplace sex discrimination, among other things. Each of the new laws, discussed in turn below, takes effect on January 19, 2016.

Expanded Equal Pay Protections

The first bill the governor signed comprises a series of four principal amendments to New York Labor Law (NYLL) section 194, which addresses gender-based pay disparities.

The first amendment narrows the conditions under which an employer may pay comparable male and female employees differently. Before the new amendments, NYLL section 194 provided:

No employee shall be paid a wage at a rate less than the rate at which an employee of the opposite sex in the same establishment is paid for equal work on a job the performance of which requires equal skill, effort and responsibility, and which is performed under similar working conditions, except where payment is made pursuant to a differential based on: (a) a seniority system; (b) a merit system; (c) a system which measures earnings by quantity or quality of production; or (d) any other factor other than sex.

The amendment supplants subsection (d) (“any factor other than sex”), with the following language: “a bona fide factor other than sex, such as education, training or experience.” The amendment goes on to provide that:

such factor: (i) shall not be based upon or derived from a sex-based differential in compensation and (ii) shall be job-related with respect to the position in question and shall be consistent with business necessity. Such exception [] shall not apply when the employee demonstrates (a) that an employer uses a particular employment practice that causes a disparate impact on the basis of sex, (b) that an alternative employment practice exists that would serve the same business purpose and not produce such differential, and (c) that the employer has refused to adopt such alternative practice.

All of the above makes it more difficult for companies to justify pay disparities between similarly situated male and female employees.
Continue Reading New York Enacts Extensive New Protections for Women in the Workplace

When California’s Fair Pay Act goes into effect January 1, 2016, the state’s employers will be subject to the strictest equal pay law in the country. The new law is part of an increased effort on both the federal and state levels to ensure equal pay between men and women, across the county. Recently, both the U.S. Department of Labor and the U.S. Equal Employment Opportunity Commission have made pay disparity a top enforcement goal.

California’s Fair Pay Act, which amends the state’s equal pay act, has been called “the nation’s most aggressive attempt yet to close the salary gap” because it contains significant provisions that may place employers at a greater risk of equal pay claims. Previously, an employee had to show that s/he was being paid less than an opposite sex colleague who was performing “equal work”; but the law now requires the employee to show that the colleagues performed “substantially similar work.” Also, where employees used to be compared only with colleagues in the “same establishment,” employers are now potentially liable for pay disparities across the entire company for employees who work in and under “similar working conditions.” Therefore, employers need to be prepared for possible claims from employees who compare themselves with colleagues in a different division, business unit, or department, including colleagues in a different geographic location or part of the company.
Continue Reading Preparing for Compliance with California’s New Fair Pay Act

This post was also written by Carl de Cicco.

The Agency Workers Regulations 2010 (“AWR”) are due to come into force on 1 October 2011. The AWR put in place the requirements of the controversial EU Temporary Agency Workers’ Directive, which has to be implemented by 5th December this year. Last week, rumours circulated in the media that there may be a last minute “watering down” of the AWR by the present government. This seems unlikely, particularly because the AWR has already been scrutinised carefully by the new coalition government after they came into power. The Conservatives were unhappy about the proposed 12 week qualifying period which was not set out in the EU Directive. However, having conducted a review, nothing was changed because the AWR was based on an agreement between the CBI and the TUC made prior to the election and could not be changed. We will, of course, update you on any last minute changes to the AWR, but in the meantime we have prepared below a short summary of the basic elements of the AWR.

The AWR will apply to the relationships between agency workers, agencies and hirers. They offer protection to agency workers, providing them with equal access to facilities and amenities at work, the right to receive information about new positions within the hirer. After working for a qualifying period of twelve weeks, agency workers would also have the right to basic working and employment conditions that are equal to those enjoyed by workers recruited directly by the hirer. In May 2011 the government published guidance (the “Guidance”) to help hirers and agencies understand the implications of the AWR and their responsibilities under them.Continue Reading UK Agency Workers – understanding the new regulations

The case of Sodexo Ltd v (1) Gutridge and others (2) North Tees and Hartlepool NHS Foundation Trust considers a transferee’s liability for equal pay claims made by transferred employees following a TUPE transfer. In this case, the Employment Appeal Tribunal (EAT) holds that following a TUPE transfer, claims for equal pay relating to discrimination in pay by the transferor must be made (against the transferee) within 6 months of the transfer. Claims for equal pay arising as a result of discrimination in pay by the transferee can, however, be brought within 6 months from the end of employment with the transferee. Significantly for transferees, where the transferring employees are in receipt of unequal pay at the time of the transfer, as compared to chosen pre-transfer comparators, they will remain entitled to the same pay as the comparator, even if the comparator is not transferred to the transferee.

In practice this means that after a TUPE transfer, transferees are at a continuing risk of significant claims of up to 6 years arrears of pay, even though they are ignorant of the fact that they are paying their employees less than they should because the persons with whom the employees are comparing their pay (the comparators) are not employed by the transferee. Continue Reading Liability for equal pay claims on TUPE transfer