A Roundtable Discussion: Pay Equity Issues

February 23, 2017

Title of Presentation
Jay Glunt (Pittsburgh)

© 2016, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Goals for Today
 A confidential and candid learning experience in
which every participant shares knowledge, shares
experiences, and shares questions. And we all listen
and learn.

 Review the legal framework and obligations.

 Develop a practical assessment of best practices and

possible risk areas.
What is Pay Equity?
 Compensation equity is an analysis as to whether
individuals performing similar work are compensated
substantially the same, or not.
 If not – the analysis determines if there is an
appropriate justification for the difference in pay.
 There is no legal requirement that private sector
employees be paid fairly – as long as a pattern of pay
inequity is not related to a legally protected class.
Determining internal equity
 Phase One. Make a list of similarly situated
comparators.
 Phase Two. Conduct a cohort comparison taking into
account variables such as years of experience,
performance, and education.
 Phase Three. If there are statistically significant pay
differences, determine if there are legitimate factors
justifying the differences.

 Talent recruitment
 Talent retention
Enforcement Landscape
 Key federal laws:
1. The Equal Pay Act (EPA) of 1963

2. Title VII of the CRA of 1964

3. Lilly Ledbetter Fair Pay Act of 2009

 Key federal enforcement agencies:

1. The Equal Employment Opportunity
Commission (EEOC) and
2. The Office of Federal Contract Compliance
Programs (OFCCP)
**also sometimes the DOJ
New EEO-I Reporting
 W-2 data and time/hours data – employers are not
submitting compensation data, but will be reporting
the distribution of wages and hours by EEOC’s salary
bands within EEO-1 category by race/ethnicity and
sex
 How will reports be used?
 Data collection and reporting issues
 First report due March 2018
New State Pay Equity Laws
 Several states have enacted new pay equity
legislation
 California

 New York

 Massachusetts

 Maryland

 Other states considering pay equity legislation

 Philadelphia – first city to bar employers from asking
potential hires to provide their salary history (effective
May 23, 2017)
State Developments – Key Points

 Potential for differing standards for determining pay

equity
 Protected classes – gender identity

 Potential comparators - “substantially similar” work

 Elimination of “same establishment”

 Limited defenses and increased burdens of proof

 Employees may discuss pay
 Limitations on asking about/using prior pay info
Political Landscape
 Obama Administration Focus - 2012 Bureau of
Labor Statistics data showed that the average
full-time salary for men to be $44,408 and for
women to be $35,932 - .81 cents on the dollar
 What does Trump presidency mean?
Public Relations
 White House Equal Pay Pledge – June 13, 2016
 28 companies – commitment to conduct annual,
company-wide pay equity analyses
 As of August 2016 – 57 companies pledged

 As of December 2016 – over 100 pledged

 Companies considering publishing salaries/pay

scales
 Investor requests for reports on pay equity
A Roundtable Discussion: Pay Equity Issues
February 23, 2017

Title of Presentation
Jay Glunt (Pittsburgh)

© 2016, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.