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."

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.

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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.

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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.

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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

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The Increased Focus on
“Equal Pay”

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Three “Big P’s” of Pay Equity

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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.”

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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 . . .

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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

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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.

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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

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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.

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EEO-1 Pay Reporting

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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

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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%

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What Impact Will the Election
Have on this Rule?

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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…

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Growing Wave of Aggressive
State Pay Laws

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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

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…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

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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

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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

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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

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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

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Conducting a Pay Equity
Analysis

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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

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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)

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Keep Up-to-Date
For additional news and insights on
developments in pay equity, visit our Pay
Equity Advisor blog:
http://www.payequityadvisor.com/

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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/

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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

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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

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Laura Mitchell
Principal,
Jackson Lewis P.C.
Laura.Mitchell@jacksonlewis.com
303.225.2382
Contact Information
www.jacksonlewis.com

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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

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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

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