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Enforcement, the Law and the Politics of Equal Pay

Enforcement, the Law and the Politics of Equal Pay. Presented by Gary Siniscalco Employment Law & Litigation Group New York October 4-5, 2012. In the news…and here to stay…. Hot Areas of Litigation and Enforcement. Pay Promotion Pregnancy and Work/Life Balance. equal pay. Pay Cases.

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Enforcement, the Law and the Politics of Equal Pay

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  1. Enforcement, the Law and the Politics of Equal Pay Presented by Gary Siniscalco Employment Law & Litigation Group New York October 4-5, 2012

  2. In the news…and here to stay…

  3. Hot Areas of Litigation and Enforcement • Pay • Promotion • Pregnancy and Work/Life Balance

  4. equal pay

  5. Pay Cases

  6. Recent Pay Cases of Interest • Dukes v. Wal-Mart • Class cert. denied • Velez v. Novartis Pharmaceutical Corp. • Jury verdict • Barghout v. Bayer Healthcare • Novartis look-a-like • Carter v. Wells Fargo Advisors • Settlement • OFCCP v. Astra Zeneca • Settlement • EEOC v. Port Authority of NY & NJ • Dismissal • King v. Acosta Sales & Marketing • Difference due to starting pay • Uh-Oh!

  7. Legal Framework: Title VII and EPA

  8. Legal Framework: Title VII and EPA

  9. KING v. ACOSTA SALESOpinion by J. Easterbrook

  10. Legislative Efforts on Equal Pay • Paycheck Fairness Act fails again • “End Pay Discrimination Through Information Act”

  11. What Are The Agencies Doing to Address Equal Pay? • National Equal Pay Enforcement Task Force – White House Report • New avenues of attack • EEOC – directed EPA investigations • OFCCP – 40% of resources • Revision to pay data request • Withdrawal of discrimination guidelines (too narrow and constraining) • Pending – New Pay Data Requests v. National Academy of Sciences Report

  12. Common Themes Regarding Relevant Statistical Data • Aggregated vs. disaggregated data • Relevant comparator groups • Burdensome requests for company-wide data

  13. Pay Investigations • Anticipating an OFCCP (or EEOC) systemic pay analysis • Consider: • by establishment • by larger business unit

  14. Pay Investigations OFCCP (and EEOC) • Who is doing equal or similar work? • Sort by business unit; department; job code or function; job title.

  15. Pay Factors and Analysis, including • Regression analysis: identifiable factors affecting current pay: • Starting pay and job hired into and date of hire of employee • Pre-hire experiences and education • Time with company – and predecessor? • Time in current job • Promotion history • Performance ratings and rankings

  16. Pay Differences • Analysis includes: • Mean/median pay • Pattern distribution • Cohort comparators • Pay differences • Is showing “no pattern” of pay bias enough?

  17. ADMINISTATION’SPOLICIES ON PAY

  18. equal pay –eeoc training

  19. eparfis

  20. OFCCP’S PROPOSED NEW FORM DATA REQUEST__ __ __ __NOT APPROVED BUT…

  21. ANALYZING PAY DATA

  22. Pay Litigation or Privileged Pay Equity Study • The Players • In-House • Legal • HR • Comp • IT • Outside • Counsel • Expert(s) • Labor ─ Economist/Statistician • Comp Expert

  23. Pay Litigation or Privileged Pay Equity Study (cont’d) • Documents • All comp policies • All comp training • All comp directives • Base • Bonuses • Benefits } re • Bonus decisions – all related documents; including meeting notes; lists of attendees/evaluatees • Documents on incentive or merit increases • ─ If performance based, documents regarding performance criteria

  24. Pay Litigation or Privileged Pay Equity Study (cont’d) • Data • HRIS payroll history – pay changes, promotions and job title changes • Performance ratings • Detail employee/cohort data on comp factors • OFCCP factor analysis

  25. Pay Litigation or Privileged Pay Equity Study • Other • Any compensation, pay equity or pay survey reports or analyses already done • Any market analyses • Documents regarding starting pay • Pay status sheets • Resumes/applications/manager or HR notes

  26. SAMPLE AUDIT APPROACH

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