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Pay Equity is "Comp"licated | New Rules, New Reporting and Responding to the Rising Tide of Pay Discrimination Claims

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Pay Equity is "Comp"licated | New Rules, New Reporting and Responding to the Rising Tide of Pay Discrimination Claims

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America's Job Exchange is thrilled to be hosting our partners from the national law firm of Jackson Lewis. Laura Mitchell, Affirmative Action & OFCCP Practice Group at Jackson Lewis P.C. will be discussing the hot topic of Pay Discrimination. President Obama made eliminating the gender "pay gap" his top civil rights enforcement priority. At his direction, EEOC recently proposed for the first time that employers annually submit detailed pay, gender and race data for all employees. The reporting will begin in 2018 and will be used to initiate systemic pay investigations against employers throughout the country. Add to that increasing pay discrimination litigation, a wave of new, aggressive state fair pay laws and growing pressure from activist investors on companies to guarantee "pay equality," which have quickly changed the "pay game."

America's Job Exchange is thrilled to be hosting our partners from the national law firm of Jackson Lewis. Laura Mitchell, Affirmative Action & OFCCP Practice Group at Jackson Lewis P.C. will be discussing the hot topic of Pay Discrimination. President Obama made eliminating the gender "pay gap" his top civil rights enforcement priority. At his direction, EEOC recently proposed for the first time that employers annually submit detailed pay, gender and race data for all employees. The reporting will begin in 2018 and will be used to initiate systemic pay investigations against employers throughout the country. Add to that increasing pay discrimination litigation, a wave of new, aggressive state fair pay laws and growing pressure from activist investors on companies to guarantee "pay equality," which have quickly changed the "pay game."

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Pay Equity is "Comp"licated | New Rules, New Reporting and Responding to the Rising Tide of Pay Discrimination Claims

  1. 1. WEBINAR Pay Equity is “Comp”licated Pay Equity is “Comp”licated New Rules, New Reporting, and Responding to the Rising Tide of Pay Discrimination Claims Gary Cowan Director of Compliance, America's Job Exchange Laura Mitchell Principal Jackson Lewis P.C.
  2. 2. WEBINAR Pay Equity is “Comp”licated About Laura Mitchell Laura Mitchell is a Principal in the Denver, Colorado office of Jackson Lewis P.C. She is on the leadership team for the firm’s Government Contractor Industry Group and a member of the firm’s Affirmative Action Compliance & OFCCP Defense practice group. Laura spends a good deal of her time counseling government contractors on their ever-expanding compliance obligations. Laura also assists clients with the drafting of affirmative action plans, representing government and non-government contractors in Office of Federal Contract Compliance Programs (OFCCP) matters, preparing for and defending OFCCP audits, and counseling employers on issues stemming from OFCCP regulations.
  3. 3. WEBINAR Pay Equity is “Comp”licated Disclaimer Jackson Lewis P.C. has prepared the materials contained in this presentation for the participants’ reference and general information in connection with education seminars presented by the firm and its attorneys. Attendees should consult with counsel before taking any actions that could affect their legal rights and should not consider these materials or discussions about these materials to be legal or other advice regarding any specific matter.
  4. 4. WEBINAR Pay Equity is “Comp”licated Agenda Awareness about “equal pay” has arrived EEO-1 pay data reporting – what impact will a Trump presidency have on this rule? Growing wave of aggressive state pay laws Conducting a Pay Equity analysis
  5. 5. WEBINAR Pay Equity is “Comp”licated The Increased Focus on “Equal Pay”
  6. 6. WEBINAR Pay Equity is “Comp”licated Three “Big P’s” of Pay Equity
  7. 7. WEBINAR Pay Equity is “Comp”licated They Said What? Pope Francis: “Why is it taken for granted that women must earn less than men? No! The discrepancy is a pure scandal.” President Obama: “Women deserve equal pay. It’s 2016. It’s time.” Patricia Arquette: “It’s our time to have wage equality once and for all.”
  8. 8. WEBINAR Pay Equity is “Comp”licated It’s All About the “Pay Gap” Group Nationwide Women 79¢ African-American Women 61¢ Hispanic Women 55¢ For every $1.00 paid to men, how much is paid to . . .
  9. 9. WEBINAR Pay Equity is “Comp”licated Why Not More Claims? People Just Don’t Know Employees don’t know what they don’t know about pay Applicants don’t know what they don’t know about pay The government doesn’t know what it doesn’t know about pay You don’t know what you don’t know about pay
  10. 10. WEBINAR Pay Equity is “Comp”licated Shareholder Pressure to Achieve and Announce “Equal Pay” Activist investor pressure to achieve “equal pay” and pay transparency CEOs are telling HR and in-house counsel: “This is going to get done.” Silicon Valley and other Fortune 500 companies feel increasing pressure to quickly conduct pay equity analyses … and publish the results • “I'm proud to share that at Facebook, men and women earn the same” - Lori Matloff Goler, Facebook, Inc. • Black employees earn $1.003; Hispanic employees earn 99.9 cents; and Asian employees earn $1.006 for every $1 earned by White employees - Kathleen Hogan, Microsoft Corp.
  11. 11. WEBINAR Pay Equity is “Comp”licated Pressure from White House to Sign “Equal Pay Pledge” 57 companies (and counting) have signed the “White House Equal Pay Pledge,” announced June 14, 2016 •Amazon, American Airlines, Dow Chemical, Gap Inc., Johnson & Johnson, Facebook, Apple, Microsoft Signatories pledge to conduct annual pay analysis across entire workforce •Privilege issues? Will results of analyses be published? White House seeking to increase pay transparency to eliminate wage gap with public commitments and follow through
  12. 12. WEBINAR Pay Equity is “Comp”licated White House “Equal Pay Pledge” We applaud the growing number of countries that have already made significant progress in closing their gender wage gap. Women working full- time earn only 79 percent of men's wages, and we are committed to taking action individually and collectively to reduce that national pay gap. We believe that businesses must play a critical role in reducing the national pay gap. Towards that end, we commit to conducting an annual company- wide gender pay analysis across occupations and embedding equal pay efforts into broader enterprise-wide equity initiatives. We pledge to take these steps as well as identify and promote other best practices that will close the national wage gap to ensure fundamental fairness for all workers.
  13. 13. WEBINAR Pay Equity is “Comp”licated EEO-1 Pay Reporting
  14. 14. WEBINAR Pay Equity is “Comp”licated EEOC Pay Data Reporting Adds “W-2 earnings” and work hours for all employees to EEO-1 reports starting in 2018 • Workforce snapshot – pay period between Oct. 1 and Dec. 31 of reporting year instead of July - Sept. Filing deadline now March 31 of every year instead of Sept. 30 • Who else can use the pay data? Unions, plaintiffs’ counsel, competitors, the press . . . EEOC will publish pay data by industry and geography for employers to “benchmark” against
  15. 15. WEBINAR Pay Equity is “Comp”licated EEOC Underestimates Employer Burden • HRIS, Payroll, Timekeeping Systems Employers typically do not house W-2 earnings, hours worked, job, race/ethnicity and gender data in the same system EEOC expects employers will write software programs to aggregate data across systems • From 180 cells to 3,600 cells per establishment Reporting burden will increase by 1,933%
  16. 16. WEBINAR Pay Equity is “Comp”licated What Impact Will the Election Have on this Rule?
  17. 17. WEBINAR Pay Equity is “Comp”licated However, Trump has said he supports equal pay for women, Trump’s daughter is an big equal pay advocate and closing the “pay gap” has become a national priority Election’s Impact on EEO-1 Pay Data Reporting Republican congress may push through legislation blocking EEOC’s rule EEOC’s Commissioners are majority democrat, about to change Rule was an EEOC rule, not an Executive Order – cannot be rescinded unilaterally by Trump Future is uncertain…
  18. 18. WEBINAR Pay Equity is “Comp”licated Growing Wave of Aggressive State Pay Laws
  19. 19. WEBINAR Pay Equity is “Comp”licated California Leads the Way…  California Fair Pay Act – effective January, 2016  Compares “substantially similar” employees – broader than federal standard of “similarly situated”  Compares employees across locations  Employers must explain “entire wage differential”  Attorneys’ fees for prevailing plaintiffs – CA robust wage-hour class plaintiffs’ bar jumping in  New Amendments just passed – effective January, 2017  Expands CFPA to include race and ethnicity  Cannot use salary at prior employer as sole justification for pay disparity
  20. 20. WEBINAR Pay Equity is “Comp”licated …And Other State Follow  New York Equal Pay Act  Codifies disparate impact theory in pay claims  Increases penalties – liquidated damages = 3x wages owed  Prohibits pay secrecy  Maryland Equal Pay for Equal Work Law  Expands protections to pay disparities based on gender identity  “Same establishment” includes facilities in the same county  Prohibits pay secrecy
  21. 21. WEBINAR Pay Equity is “Comp”licated Massachusetts “Out California’s” California  Equal pay for “comparable work”  Arguably more expansive than any other federal or state law  Cannot ask applicants – or current/former employers – for prior salary  Proactive Pay Audit as a “Safe Harbor”  If company completed proactive analysis in good faith within past 3 years – must be reasonable analysis  And, made reasonable progress towards eliminating pay disparities
  22. 22. WEBINAR Pay Equity is “Comp”licated States with Current Proposals for New or Expanded Equal Pay Laws Alaska Arizona District of Columbia Georgia Hawaii Indiana Iowa Kentucky Michigan Nebraska New Jersey Ohio Oklahoma Pennsylvania Tennessee Washington West Virginia
  23. 23. WEBINAR Pay Equity is “Comp”licated Prohibition on asking for Prior Salary Prediction – This is the Big One Massachusetts – first state to ban asking for prior salary – effective July, 2018 CA – quickly amended CFPA to say prior salary cannot, by itself, explain pay disparity • Fed Govt – House bill would prohibit employers from asking for prior salary • NYC – bill would prohibit asking for or searching publicly available records for salary history • NJ – proposal would prohibit setting a min or max salary history as a condition of being interviewed/considered And in past few months other jurisdictions have proposed similar bans
  24. 24. WEBINAR Pay Equity is “Comp”licated Pay Equity for All Act of 2016 Introduced in the House September 14, 2016 • Asking for prior salary from prospective employees • Screening prospective employees based on salary history Would prohibit Fines up to $10,000 for each offense Prospective or current employees can bring private action against employer and receive up to $10,000 in damages + attorney’s fees
  25. 25. WEBINAR Pay Equity is “Comp”licated Conducting a Pay Equity Analysis
  26. 26. WEBINAR Pay Equity is “Comp”licated So What Do We Do? Consider privileged proactive pay analysis • On “meaningful” pay groupings • Control for factors that influence pay • Not all pay differences are a problem, most aren’t But, when they are, plan to make pay adjustments • No lump-sum, off cycle adjustments • Do as part of regular pay cycle incrementally over a few years Review pay system and processes
  27. 27. WEBINAR Pay Equity is “Comp”licated No Attorney Involvement Sliding Scale of Privilege Not Privileged Argument for Privileged Privileged In-House Counsel (on surface) In-House Counsel (substance) Outside Counsel (on surface) Outside Counsel (substance)
  28. 28. WEBINAR Pay Equity is “Comp”licated Keep Up-to-Date For additional news and insights on developments in pay equity, visit our Pay Equity Advisor blog: http://www.payequityadvisor.com/
  29. 29. WEBINAR Pay Equity is “Comp”licated Questions for Laura? For additional news and insights on the OFCCP and EEO compliance, visit our Affirmative Action & OFCCP Law Advisor blog: http://www.affirmativeactionlawadvisor.com/
  30. 30. WEBINAR Pay Equity is “Comp”licated America’s Job Exchange has been a pioneer in online recruitment and compliance from the very beginning, having evolved from America’s Job Bank which was founded by the Department of Labor in 1995. We keep true to the original mission of America’s Job Bank assisting Federal Contractors meet OFCCP regulations for online job postings and distribution. OUR MISSION We believe that a diverse workforce is beneficial to every company and its employees. Our mission is to provide the best tools, resources and information to connect employers and diverse job seekers. About America’s Job Exchange
  31. 31. WEBINAR Pay Equity is “Comp”licated The AJE Difference  Complete Solution Receive unparalleled value when you bundle our products and services for recruitment advertising and compliance.  Competitive Pricing The AJE solution is customizable and priced based on your business needs with variables such as size, hiring forecast and budget.  Breadth of Distribution Network Broad network of partners and affiliates including recruitment media agencies, technology providers, associations and states.  Tools and Support AJE’s tools allow you to stay on top of your outreach efforts and our team is here to support you every step of the way. Clients choose America’s Job Exchange for OFCCP compliance because AJE offers a comprehensive solution for a great value. CLIENTELE TRACK RECORD REPUTATION
  32. 32. WEBINAR Pay Equity is “Comp”licated Laura Mitchell Principal, Jackson Lewis P.C. Laura.Mitchell@jacksonlewis.com 303.225.2382 Contact Information www.jacksonlewis.com
  33. 33. WEBINAR Pay Equity is “Comp”licated Gary Cowan Director of Compliance, America's Job Exchange gcowan@americasjobexchange.com (o) 978-946-7928 (c) 617-997-6477 Contact Information www.americasjobexchange.com
  34. 34. WEBINAR Pay Equity is “Comp”licated Our Webinars Are Now Monthly Effective Diversity Recruitment requires more than checking off of a to-do list and thinking you are done. Let us share with you our industry insight on how organizations are effectively strategizing their recruitment efforts and producing results. Shhh…The secrets in the Outreach! Unlocking the Mysteries: Diversity Recruitment & Outreach Success Presenters January 17, 2017 1:00-2:00pm ET Gary Cowan Director of Compliance gcowan@americasjobexchange.com Alan Klapman Director of Account Management aklapman@americasjobexchange.com AJE CUSTOMERS ONLY – JANUARY 2017
  35. 35. WEBINAR Pay Equity is “Comp”licated Thank You! www.americasjobexchange.com https://blog.americasjobexchange.com www.twitter.com/ajejobs www.facebook.com/AmericasJobExchange/ www.linkedin.com/company/america%27s-job-exchange www.slideshare.net/AmericasJobExchange

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