Legislation that would amend the Fair Labor Standards Act (FLSA) to increase remedies for violations of the Equal Pay Act (EPA) and make it more difficult to defend against such claims was reintroduced in the Senate on Monday. Sen. Majority Leader Harry Reid (D-NV) introduced the Paycheck Fairness Act (S. 3772) with 13 cosponsors. Former Sen. Hillary Clinton (D-NY) had introduced this measure as S. 182 in the Senate on January 9, 2009, the same day the House passed its companion bill (H.R. 12). The White House recently urged the bill’s passage during a forum on work and family issues, calling it “a common-sense bill that will help ensure that men and women who do equal work receive the equal pay that they and their families deserve.”
Among other things, the Paycheck Fairness Act would do the following:
- Expand damages under the EPA to include potentially unlimited compensatory and punitive awards.
- Prevent employers from relying on the “factor other than sex” affirmative defense in wage discrimination cases. Under the new legislation, an employer would be required to show that any wage discrepancy is caused by a bona fide factor other than sex, such as education, training and experience, and that this factor is job-related and consistent with business necessity. An employee could rebut this claim by showing that an alternative employment practice exists that could achieve the same business purpose.
- Incorporate anti-retaliation provisions into the FLSA that would protect employees who have made a complaint, filed a charge, testified or otherwise assisted in an investigation or proceeding related to an unfair wage complaint. The provisions would also protect employees who have inquired about or discussed theirs or their coworkers’ wages.
- Eliminate the requirement that employees work in the same establishment for wage comparison purposes. Under this bill, an employer’s establishment would include workplaces located in the same county or similar political subdivision of a state.
- Reinstate the Equal Opportunity Survey, to be administered by the Office of Federal Contract Compliance Programs (OFCCP). The EO survey, which was abolished during the Bush Administration, allowed the agency to gather certain employment information from federal contractors and subcontractors related to their Affirmative Action Programs, personnel activity and compensation. In addition to reinstating the EO survey, the Paycheck Fairness Act would provide the OFCCP with additional investigative methodologies to use in performing compensation analysis.
The reintroduced Paycheck Fairness Act has been placed on the Senate calendar, although the timing of its consideration is uncertain.
Photo credit: DigitalZombie