On May 22, 2012, Sen. Barbara Mikulski (D-MD) reintroduced the Paycheck Fairness Act (S. 3220) in the Senate with 31 co-sponsors. This legislation would amend the Fair Labor Standards Act (FLSA) to, among other things, provide for potentially unlimited compensatory and punitive damages in gender-based wage discrimination cases and weaken an employer’s affirmative defense against such claims. According to one report, Sen. Majority Leader Harry Reid (D-NV) intends to file a motion to advance this bill the week of June 4.
Although a copy of the latest version of the Paycheck Fairness Act is not yet available, the text of the same bill Sen. Mikulski introduced last year (S. 797) would do the following:
- Expand damages under the Equal Pay Act to include potentially unlimited compensatory and punitive awards.
- Prevent employers from relying on the “factor other than sex” affirmative defense in wage discrimination cases. 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. 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.
A motion to proceed to consideration of the Paycheck Fairness Act failed by two votes in November of 2010. It is unlikely this bill – if acted upon – would survive a similar motion given the current composition of the Senate.
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