Equal Pay Momentum – New Jersey Senate Labor Committee Approves Proposed Equal Pay Legislation

A week ago, President Barack Obama announced further efforts by the White House and EEOC to combat gender pay equality issues. The momentum from last week’s announcement carried its way up the coast from the District of Columbia to the state legislature of New Jersey. Yesterday, New Jersey’s Senate Labor Committee approved Senate Bill 992 sponsored by Senate Majority Leader Loretta Weinberg and Senate President Steve Sweeney aimed at providing additional equal pay protections. The proposed legislation would build on New Jersey’s current equal pay law already in place.

The federal government’s announcement a week ago commemorated the seven year anniversary of the Lilly Ledbetter Fair Pay Act, the first bill President Obama signed into law after taking office in 2009. New Jersey Senate Bill 992 – as proposed – would mimic the language of the Ledbetter Act, restarting the statute of limitations for pay discrimination claims each time a paycheck is issued in furtherance of discrimination. The proposed bill contains other features, including (1) prohibiting employer retaliation against employees for disclosing compensation; (2) requiring employers to articulate a bona fide job-related reason for difference in pay for employees of a different gender performing substantially similar work; and (3) reporting requirements for contractors relating to certain changes during the course of the contract.

The proposed New Jersey legislation comes after similar legislation was passed in the last year by New York and California. Employers should keep an eye out as the New Jersey’s SB 992 makes its way through the state legislature this year, as well as for similar legislation likely coming in other states. The Federal proposal was published in the Federal Register on February 1, 2016 and written comments may be submitted on or before April 1, 2016. For further information on submitting comments, check the Federal Register here.

NLRB Issues New Captive Audience Rule for Mail-Ballot Elections

The NLRB opened a busy February by overruling a rule it established in 1959 governing when captive audience meetings may be held for mail-ballot elections. For nearly 60 years, there was a divide in the way the NLRB handled captive audiences for mail-ballot elections and manual (in-person) elections. For mail-ballot elections, the NLRB followed the precedent it established in its Oregon Washington Telephone Co. decision prohibiting both employers and unions from holding captive audience meetings with employees “from the time and date on which the ‘mail in’ ballots are scheduled to be dispatched by the Regional Office until the terminal time and date prescribed for their return.” The new rule set forth in last week’s Guardsmark, LLC¹ decision, overrules the Oregon Washington Telephone Co. decision and provides that the captive audience prohibition now goes into effect 24 hours before the ballots are mailed.

Captive audience meetings include meetings with employees by an employer or union, typically held during a union campaign, to discuss their views on unionization. Employers often require employee attendance and hold the meetings during work time.

A significant reason for the new rule is to bring consistency between the procedures governing mail-ballot and manual (in-person) elections. For manual elections, the longstanding rule² followed by the NLRB has been that captive audience meetings are prohibited within the 24-hour period before the start of the election. In the new Guardsmark, LLC decision, the divided panel (3-1) conceded that the conflicting rule for mail-ballot elections was “counter-intuitive” and that a new rule was necessary to avoid perpetuating the confusion. The effect of the Guardsmark LLC decision is that mail-ballot elections will now be handled with the same 24-hour restriction as manual elections.  The new rule, according to the Board, is consistent with the 24-hour rule in manual elections and will help “achieve the clarity, uniformity, and simplicity that a single rule for all elections will provide.”

The rule means that employers have 24 hours less to address union election issues with the employees. Employers already face a shortened election period as a result of the Board’s changes in 2015, when the Board shortened the time it takes to go from filing a petition to the election. (See our previous posts concerning the issuance and implementation of the rules herehere, and here.)  And an employer’s failure to comply can have significant consequences. A violation, even an unwitting one, may lead to an automatic invalidation of an election and a re-run election can be ordered.

Employers faced with a union campaign must know how the captive audience rule will apply to the particular election, including being aware of the date and time that the ballots will be mailed for a mail-ballot election. Employers should also take the time to familiarize supervisors with the new rule and the captive audience prohibitions.

[1] Guardsmark, LLC, 363 NLRB No. 103 (Jan. 29, 2016).

[2] Established in 1953 by the NLRB in its Peerless Plywood Co., 107 NLRB 427 (1953) decision.

NLRB Not Waffling on Pre-employment Class-Action Waivers Despite Fifth Circuit Reversals

Nearly two years after Waffle House Inc. employee Carrie Harris filed an unfair labor practices charge, the Georgia-based breakfast chain was unable to butter up the National Labor Relations Board (NLRB). Harris’ complaint alleged that Waffle House’s arbitration agreement that employees were required to execute as a condition of their employment violated the National Labor Relations Act (NLRA) because the agreement contained a “no consolidated, collective, or class action arbitrations” provision. On Monday, February 1, 2016, a split three-member panel of the NLRB agreed with Harris that Waffle House’s mandatory, pre-employment waiver violated the NLRA because it precluded employees from pursuing class or collective actions. The NLRB ordered Waffle House to cut the class-action waiver from the mandatory arbitration agreement.

Since the NLRB’s 2012 decision in D.R. Horton and 2014 decision in Murphy Oil, the NLRB has staunchly defended its position that mandatory arbitration agreements that bar class or collective action claims are unlawful. So why, in the face of such steadfast opposition, would Waffle House attempt to enforce a mandatory waiver? Simple: the Fifth Circuit has expressly rejected the NLRB’s position – not once but twice – and consistently ruled that waivers, such as the one Waffle House used, are lawful and enforceable.

The Fifth Circuit’s reversals of the Board’s D.R. Horton and Murphy Oil decisions has national implications. Employers have the option to appeal an NLRB decision with the D.C. Circuit or any circuit in which it has sufficient business operations. Therefore, employers with sufficient contacts in Fifth Circuit states may appeal an NLRB decision invalidating their arbitration agreements even where an unfair labor practices charge has been filed against the employer outside the Fifth Circuit. Unfortunately, however, this leaves Waffle House and other employers caught in the middle of the ongoing song and dance performed by the NLRB and the Fifth Circuit.

Because the NLRB is not bound by federal court decisions except those rendered by the U.S. Supreme Court, the difference of opinion between the Fifth Circuit and the NLRB is likely to continue simmering until the nation’s high court weighs in on the issue. Some employers have attempted to avoid costly battles with the NLRB by cooking up arbitration agreements with opt-out provisions for class-action waivers. However, this approach was recently rejected by another split NLRB panel with its recent December 22, 2015 RPM Pizza, LLC decision. The RPM Pizza decision was immediately submitted for appeal to the Fifth Circuit.

Practical tips for settling injury to feelings claims

Back in 2014 we posted a piece on Moorthy –v- HMRC http://www.employmentlawworldview.com/taxing-times-for-uk-discrimination-claimant/, a case looking at the taxable status of payments to employees for injury to feelings caused by unlawful discrimination. Historically there had been an unspoken understanding that such compensation could be paid tax free, on top of the usual £30,000 allowance for termination payments.  However, the First Tier Tax Tribunal concluded that compensation for injury to feelings would only be tax-free if it did not arise “directly or indirectly in consideration of or in consequence of the termination of a person’s employment“.  If it was related in some way to that termination (most obviously through a dismissal being found to be discriminatory) then it would only be tax free to the extent that it and all the other compensation payments made added up to less than £30,000.

That decision has just been upheld by the Upper Tax Tribunal. It seems unlikely to be further appealed, so we had better get used to what that means for the structuring of severance payments and the drafting of settlement agreements:

Lessons for employers

Let us assume for these purposes that as employer you can get past the irritation implicit in paying tax-free cash to an ex-employee for injury to his feelings caused by an act of discrimination which you probably deny ever took place. Instead, let us proceed on the premise that you want to pay injury to feelings compensation tax-free if possible so as to minimise the cost to you of providing an acceptable level of return to the employee.  On that basis, consider:

(i)         within the settlement agreement, identifying expressly the (alleged) acts of non-termination discrimination and attributing a separate injury to feelings figure to them;

(ii)        if the termination is also alleged to be discriminatory, attach a separate injury to feelings figure to this also;

(iii)       there is no reason in logic why there should not be payments for both pre-termination and termination-related injured feelings in the same settlement, but remember the relativity of the two sums.  HMRC may view with some suspicion a larger payment for injury to feelings caused by pre-termination discrimination than for an outright dismissal which will on any view usually cause the greater distress.  Such an imbalance may suggest that the employer is shifting compensation which is actually for the dismissal, and so potentially taxable, into the tax-free pre-termination piece, an assessment HMRC would not be shy to challenge;

(iv)       and also keep an eye on the size of the pre-termination injury to feelings amount relative to the act of discrimination it is paid for.  A failure to follow the Vento guidelines (e.g. paying more than about £6,000 for minor one-off acts or over £18,000 for anything less than the most serious and extended harassment) would also allow HMRC to challenge the status of the payment.  The employee will also have to tread a thin line here – the more serious the pre-termination discrimination alleged, the less easily HMRC will accept that it did not play some role in the subsequent parting.  However, the point is still entirely arguable in the right circumstances – an employee subjected to very serious harassment whose whole workplace is closed while his claim is still unresolved, for example.

(v)        make sure that any tax indemnity in the settlement agreement covers not just the ordinary severance payment but also the injury to feelings amount(s);

(vi)       and finally as employer, note that HMRC will look askance at tax-free injury to feelings payments on termination which purport to be for acts of discrimination taking place any material time before the dismissal.  Ideally there would be evidence of an ongoing grievance or Employment Tribunal claim still extant at the time of the dismissal.  The obvious point is that if the pre-termination discrimination was long ago or had clearly not become an issue of contention, a sudden payment of compensation for it will inevitably look contrived.  Equally, of course, the closer the alleged discrimination is in time to the termination, the less keen HMRC will be to accept that it is actually unrelated to it.

President Obama Announces Further Efforts To Combat Gender Pay Inequality

A little-known (or perhaps forgotten) fact is that the very first bill President Obama signed into law was an employment law:  the Lilly Ledbetter Fair Pay Act of 2009.  This law unwound the Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., and was intended to make it easier for employees to bring gender pay discrimination claims by clarifying that each allegedly discriminatory paycheck starts a new statute of limitations.  To commemorate the seventh anniversary of his signing of the Ledbetter Equal Pay Act, on January 29, 2016, President Obama held a press conference, attended by Lily Ledbetter, the Secretary of Labor, the Chair of the Equal Employment Opportunity Commission, and tennis legend Billie Jean King – to announce the Administration’s latest initiative to address gender pay inequality, proposing a rule to expand the information required from employers regarding their pay practices.

President Obama’s announcement explained that the Equal Employment Opportunity Commission (EEOC) will be proposing (in the form of a proposed new federal regulation) a revision to its longstanding Form EEO-1.  The EEO-1 currently requires employers with 100 or more employees to provide the federal government with workforce profiles containing data sorted by race, ethnicity, and gender.  The proposed new rule would expand of the scope of required disclosures by employers, and would specifically require disclosure of aggregated  pay and hours worked data to the federal government.  The proposed rule also would seek to require employers to submit this information via an updated and improved data collection mechanism, ostensibly easing the compliance burden on most employers.

According to the EEOC’s statement, the new data “would provide [the] EEOC and… Department of Labor with insight into pay disparities across industries and occupations and strengthen federal efforts to combat discrimination.”  The EEOC believes the data will allow the agencies to use information “to assess complaints of discrimination, focus agency investigations, and identify exiting pay disparities that may warrant further examination.”  However, aside from providing greater transparency and insight into the pay practices of America’s larger employers, a significant aim of the proposed rule appears to be to turn the conversation inward.  According to EEOC Chair Jenny R. Yang, “this information will assist employers in evaluating their pay practices.”  The EEOC statement similarly expresses the hope that the published aggregated data “will help employers in conducting their own analysis on their pay practices to facilitate voluntary compliance.”

If approved, the revised rule would go into effect for covered employers’ September 2017 report.  The proposed changes are scheduled to be published on the Federal Register  website on February 1, 2016.  Employers and members of the public will then have sixty days to submit comments, with the comment period ending on April 1, 2016.  According to the White House, the proposed change would cover over 63 million employees.

Employers also should be cognizant of changes and proposed efforts to amend state equal pay laws, as several states led by California and New York, have strengthened their respective state equal pay acts within the last year.

The Politics of ‘Talking Politics’ in the Workplace: Some Basic Steps for Navigating Political Speech at Work

Tis the season for political debates. If it hasn’t happened to you yet, it soon will.  You’ll go into the break room at work and a group of people will be arguing in increasingly heated tones:  should it be Hillary or Bernie?  Trump or Cruz?  Is Bernie too old?  Hillary not “man enough”?  What about Trump’s plan to ban all Muslim travel to the country?  And so on through issues touching on race, religion, sexual orientation, and a myriad of other protected categories.  What’s an employer to do?

Political speech in the workplace raises a host of issues that must be dealt with carefully. Here’s what every employer needs to know:

  • Regulating Political Speech: Employees in private companies do not have unfettered rights to “free speech” in the workplace under the First Amendment, which generally applies only to government censorship of speech. An employer can regulate political speech in the workplace for legitimate business‑related reasons. This may include, for example, discipline of employees for political speech that is disruptive of the workplace or interferes with the efficient conduct of the business.
  • Managers Should Stay Neutral: That said, it is important that an employer apply these standards uniformly. Employers may otherwise be faced with claims for disparate treatment, harassment or retaliation under state and federal anti‑discrimination laws (which protect religious beliefs, race, gender, age, and other protected categories). Given these landmines, it is especially important that managers and supervisors understand that they should not share their political opinions with subordinates, or worse yet, appear to impose their opinions on them.
  • Some Accommodation May Be Required: This does not mean that workplaces need to be devoid of all political expression, and in fact, employers may need to accommodate individuals whose religious practices sometimes intersect with politics. For example, a pro‑life individual who bases his political support for a certain candidate on his religious beliefs may be allowed to display a religious symbol on his desk, but his advocacy for that candidate in the workplace may be restricted if it offends his co‑workers, especially after he has been informed that it is unwelcome.
  • Speech & Affiliation That Is Protected: Care needs to be taken in two additional areas. First, under the National Labor Relations Act, both union and non‑union employees who speak out about employment issues may be protected. The NLRB has specifically stated that non‑disruptive political advocacy for or against a specific issue related to a specific employment concern occurring during non‑work time and in non‑work areas (e.g. protests regarding minimum wage issues) is generally protected, although such advocacy can be subject to lawful and neutrally‑applied restrictions during on‑duty time. In addition, some state laws may govern political activity. For example, the California Labor Code specifically provides that an employer cannot adopt or enforce any policy that tends to control or direct employees’ political activities or affiliations, and cannot coerce or influence employees to follow or refrain from following any particular political activity by threatening loss of employment.
  • Time off to Vote: Last but not least, when voting day finally arrives, many states protect employees’ right to take time off from work to vote. Again using California as an example, employees there must be permitted to take two hours of paid leave at the start or end of a shift if the employee does not have sufficient time outside of working hours to vote.

The best course of action for navigating these waters is to create a culture in your workplace that is respectful and tolerant of others’ views, and train your managers on even‑handed application of policies and the importance of non‑retaliation for any employee complaints. Then take a deep breath, and wait for the next election cycle to commence!

Can “Child’s Pose” Relieve Bikram Yoga Guru’s Stress After His January 25 California Court Double-Whammy?

I first encountered Bikram Choudhury 10 years ago (okay more like 15, but who’s counting) at his Bikram Yoga College on La Cienega Blvd. in L.A. when trying out his quintessential hot yoga class. He was memorable, parading around in Speedo-like short-shorts on a small stage in front of the class, shouting yoga commands. Given the recent jury verdict against Mr. Choudhury, the reader will be forgiven for wondering whether I felt harassed at the class. Well, I did, but not in the way you might think. This was not a relaxing, “get in touch with your spiritual side” class. Rather, my poses were apparently so terrible as to draw comments such as, “You – you in the blue pants!” [Wha?? ME????] “Triangle – this is the TRIANGLE pose – what is that you are doing? Is that a square?” And, to my friend, sweaty and breathless in the 104˚F room: “No – where are you going? This is not the time for a water break! NO WATER!” Unwilling to give up, I went to one more Bikram class…and then took up the more calming practice of spinning class.

Between this run-in and my employment law background, you won’t be surprised to learn that I could not tear myself away from the coverage of the harassment and retaliation lawsuit filed against Choudhury by his former Head of Legal and International Affairs. The plaintiff’s lawsuit alleged that Choudhury wrongfully terminated her employment in retaliation for investigating a trainee’s allegation that Choudhury raped her and then refusing to commit perjury by covering up the allegations when she was subpoenaed to testify in a sex discrimination case filed by a former trainee. (Choudhury was the target of other lawsuits by women claiming sexual assault or harassment, to which he remarkably responded in a CNN interview, here: “I have no intention to have sex with any of my students or any women…Sometimes students, they commit suicide. Lots of students of mine, they commit suicide because I will not have sex with them.”) Other salacious testimony in this lawsuit included that Choudhury forced the plaintiff to meet with him in his hotel room at night while female students massaged him, at least once insisted that the plaintiff join him in bed during a meeting (she claimed she refused), and that he received oral sex in front of his former CEO.

On January 25, after an almost 2-week trial, an LA jury agreed that the plaintiff suffered “severe and pervasive” harassment, and that her complaints to management about sexual harassment and discrimination were a substantial reason for her termination. The award? $924,000 in compensatory damages ($237,000 in past lost wages, $187,000 for future lost earnings, $50,000 for mental suffering and emotional distress, and $450,000 in noneconomic damages including future suffering and emotional distress). On January 26, the jury topped that off with another $6.4 million in punitive damages.

Lessons for businesses and high level executives? Here are a few: No individual – even a guru with a cult following or an uber-celebrity – should believe they are too big to fail. Contrary to Choudhury’s business philosophy (a trial witness testified Choudhury commented in class, “I should rape more women, it’s good for business”), not all publicity is good publicity in business. Listen to in-house counsel and the results of internal investigations. Even company owners should attend the 2-hour mandatory California anti-harassment training.

Incidentally, the bad news for Choudhury did not stop there. Also on January 25, the Ninth Circuit issued a ruling declining to reconsider its decision that words and pictures used to describe Choudhury’s unique yoga pose sequence – such as in his instruction book – could be copyrighted as an expression of the ideas that were embodies in the poses, but that the poses themselves could not be the subject of copyright. What are the odds this ruling and the jury verdict would issue on the same day? The next time you strike your anjali mudra and reflect on whether karma exists, remember this article.

Sick Leave Update: Spokane Has Spoken and Other Sick Leave News

Spokane, Washington has become the next city to pass a paid sick leave law.  On January 26, 2016, the Spokane City Council overrode the Mayor’s veto of ORD C35300 [pdf] (originally passed by the Council on January 11).  The new law will become effective on January 1, 2017.   The law states that it applies to all employers “in the City of Spokane who employ employees who physically perform more than two hundred forty (240) hours of work within the City of Spokane.” It is thus not clear whether employers must be physically located in Spokane for the law to apply, or whether the 240 hours is a yearly requirement or a one-time threshold, but hopefully the City will provide some guidance on this issue over the next year.  The law does not apply to work‑study students, seasonal workers, temporary workers, independent contractors, domestic workers or employees engaged in certain construction work.

Eligible employees will accrue one hour of paid sick leave for every 30 hours worked.  Employees of businesses with up to nine employees may use up to 24 hours of leave per year, while employees of businesses employing 10 or more employees per year may use up to 40 hours of leave per year.  Employees may carry over up to 24 hours of accrued, unused sick leave to the next year.  Notably, the law does not appear to have an accrual cap.  Sick leave may be used for the diagnosis, care, or treatment of the employee’s or the employee’s family member’s mental or physical illness, injury or health condition, for domestic violence‑related purposes, for times when the employer’s business or the employee’s child’s school or place of care is closed by order of a public health official, or for bereavement leave for a family member’s death.  As with other sick leave laws, employers may require documentation of the appropriate use of sick leave as set forth in the law.  Employers must post notice of employee rights under the law, and must maintain records of each employee’s earned sick time accrual and use for at least three years.  In addition, employers must provide employees with information about their accrued earned sick leave balance at least once per quarter.  Finally, the ordinance gives a startup business a year after the issuance of their first City of Spokane business license before they must comply with all the law’s requirements.

Pittsburgh’s sick leave law, set to go into effect this year, was struck down on December 21, 2015 by the Allegheny County Court of Common Pleas, which held that Pennsylvania state law prohibits municipalities from regulating businesses by determining their duties, responsibilities or requirements.  The decision has been appealed, but Pittsburgh’s sick leave law is not in effect during the pendency of the appeal.

Employers with employees in Puerto Rico need to revise their sick leave policies.  Beginning January 1, 2016, employers must allow employees to use up to five days of their accrued paid sick leave to care for the employee’s children, spouse, mother or father, or minors, elderly or disabled persons of which the employee has custody or is the legal guardian.  Employees may not use sick days for these purposes if it would bring their total sick leave balance below five days, however.  Employers are entitled to require medical certificates for such absences that exceed two days.  Notably, these changes do not apply to employers of 15 or fewer employees in Puerto Rico.

On January 14, 2016, New York City’s Department of Consumer Affairs issued updates to the City’s FAQs on its paid sick leave law.  The FAQ updates reiterate and clarify certain requirements of the law, including (but not limited to):

  • Clarifying front-loading requirements;
  • Clarifying carryover requirements for part-time employees;
  • Revising guidance on joint-employer relationships;
  • Reiterating that employers must maintain a written sick leave policy; distributing the required Notice of Employee Rights alone is not enough; and
  • Clarifying that the Notice of Employee Rights must be delivered to employees (posting or making available online is not sufficient).

Employers with employees in New York City should review the revised FAQs and their sick leave policy to ensure continued compliance.

On December 17, 2015, Seattle amended its Paid Sick and Safe Leave law (Ordinance 124960 [pdf]) (and other labor laws, more on that below) in several respects.  Among other things, the amendments:

  • Provide for a private right of action for employees who have suffered an adverse action because of their good faith use or attempted use of paid sick leave.  The private right of action becomes effective in April 2016 for employers of 50 or more employees, and in April 2017 for smaller employers.
  • Increase civil penalties for employers who violate the law, including the notice and posting requirements (as we stated previously, there is no better time than the present to make sure you are in compliance with the notice provisions of the various sick leave laws).
  • Change the minimum-use increment from one-hour to quarter-hour increments, unless it is not “feasible” for the employer to do so because of their payroll system—this is the smallest increment of any of the sick leave laws across the country.
  • Require that records documenting hours worked and sick/safe time used be kept for three years (up from two years)

Employers should also be aware that under Seattle’s law, effective April 1, 2016, they must give employees written notice of the employer’s policy and procedure for meeting the requirements of the law, including but not limited to the employer’s choice of benefit year; tier size; rate of accrual, use and carry-over of paid sick and paid safe time hours; manner of providing employees with an updated amount of available paid sick and safe time hours each time wages are paid; and notification requirements for absences and requesting leave.

Making Lemonade Out Of Lemons: It Pays To Have Pay Equity

The California legislature has amended California’s Fair Pay Act to close the pay gap between men and women. While this law looks tough for employers in California, many companies already have embraced pay equity as an opportunity. Touting pay equity appears to be a new trend as demonstrated by the actions of The Gap, Go Daddy, and Salesforce.com.  Diversity and inclusion experts find that pay audits lead to standardization and increased equality.

Here’s the bitter truth: The amendment to the California Fair Pay Act makes it among the strongest statutes in the country requiring pay equity, and charts new ground, making this area ripe for new litigation against unwary employers. It does the following:

  1. Broadens the comparators for pay equity, making it such that equal pay must be provided to those performing “substantially similar work” rather than “equal” work.
  2. Expressly places the burden of proof on the employer by requiring they show that any pay difference is based on a legitimate factor such as a seniority system, merit system, a system that measures earnings based on quantity or quality of production, or other bona fide factors aside from sex such as education, training or experience that serve a legitimate business purpose.  Further, employers must demonstrate that any pay differential is attributed 100% to legitimate factors. Moreover, even when an employer meets this burden, an employee may then introduce an “alternative business practice” that would serve the same purpose without resulting in a difference in pay.
  3. Increases the required record keeping period for maintaining records reflecting wage rates, job classifications and other documents used to determine compensation from two years to three years.
  4. Encourages employees to share wage information by permitting them to actively inquire and disclose their own wages as well as support other employees to do the same, without fear of reprisal.
  5. Adds a separate cause of action for retaliation for any employee who is terminated, discriminated or retaliated against for exercising his or her right under the amended law.

Turning lemons into lemonade: Review compensation practices to determine if they are in defensible compliance with these new requirements by doing the following:

  • Perform a comprehensive job classification and compensation analysis to identify any pay discrepancies that could lead to a claim.
  • Review employee policies and procedures, including but not limited to job descriptions, employee handbooks, performance review processes, and salary and bonus adjustment processes for compliance with the amended law.
  • Train employees involved with or responsible for compensation‑related decisions about the new requirements for equal pay and the permissible bona fide factors that may be used in the decision making process. Consider training all managers about unconscious bias in hiring and performance evaluations that may result in unequal pay scales that are indefensible under the new law.
  • Train managers about employees’ rights to inquire about and discuss compensation and their right to support other employees in doing the same, and also train managers regarding management’s obligations to prevent retaliation against employees for exercising their rights under the amended law, and to continue to ensure employer compliance with privacy laws.
  • Maintain records to support the use of any bona fide factors such as education, training, geography or experience in compensation‑related decisions.
  • Revise record retention protocols to meet the amended Act’s three‑year requirement.

Here’s the payoff: By achieving pay equity, you too can make headlines touting your pay equity and reap the benefits by attracting and retaining talented employees.

Our firm has the expertise to help you through this process, and can also protect any analysis of current pay practices performed under the attorney‑client and/or attorney work product privilege. If you have questions about how to demonstrate compliance with the amendment to California’s Fair Pay Act, please contact Gary Gansle, Karen Wentzel, or Michael Kelly at Squire Patton Boggs.

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