Overview: Under the Equal Pay Act (EPA) as well as state and local fair pay laws, men and women are required to receive equal pay for equal work. Generally, the jobs do not have to be identical, but need to be substantially equal in terms of skill, effort and job responsibility, and performed under similar working conditions. The term pay pertains to not just salary, but also overtime, bonuses, vacation and holiday pay, stock options, life insurance and all other benefits and compensation of any kind paid to employees. Employers can defend a claim of wage discrimination under a seniority system, merit system, a system measuring earnings by quality or quantity of production or if wages were set based on a factor other than sex. Title VII further prohibits wage discrimination.
Trends:The Equal Employment Opportunity Commission (EEOC) is committed to eradicating wage discrimination, increasing pay transparency and enforcing equal pay laws and it has identified these efforts as a priority in its Strategic Enforcement Plans.
At the state and local level, there also is a renewed focus on equal pay laws. Some wage discrimination laws expand the classes protected while others seek to achieve pay transparency by prohibiting employers from banning employees from discussing their salaries with each other. Several states and municipalities have enacted laws prohibiting an employer from asking prospective employees about prior salary history or wages, as this may perpetuate an existing wage gap.
Author: Beth P. Zoller, JD, Legal Editor
The 9th Circuit Court of Appeals has ruled that an employee's prior salary cannot justify a pay gap between men and women for performing similar work.
Michigan has passed a law expressly prohibiting its local governments from passing ordinances banning salary history requests.
Washington and New Jersey have passed comprehensive pay equity laws that significantly strengthen requirements for employers to provide equal pay for similar employment without regard to gender or other protected characteristics.
The trend of banning salary history questions during the hiring process goes under the microscope on this podcast featuring Fisher Phillips employment attorney Cheryl Pinarchick, a founding co-chair of the firm's Pay Equity Practice Group.
This How To details the steps an employer should take when conducting a pay equity review.
A new San Francisco ordinance will prohibit employers, including city contractors and subcontractors, from asking any questions about a job applicant's current or past salary.
Delaware joins Oregon, Massachusetts and other jurisdictions that have enacted salary history inquiry restrictions on employers. The Delaware measure will take effect in December 2017, and aims to reduce the wage gap between men and women.
HR Guidance on developing policies and practices to eliminate pay discrimination.