Beware: The Paycheck Fairness Act has raised its ugly head once more.

The bill, which would amend the Fair Labor Standards Act, was re-introduced by Sen. Barabara Mikulski (D-MD) this week. Ilyse Schuman, writing on dcemploymentlawupdate.com, says the bill would:

  • 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.

SHRM calls for action

The bill is expected to come before the Senate the week of June 4, and the Society for Human Resource Management is asking its members to contact their senators to urge the bill’s defeat.

According to SHRM’s email message, HR pros should emphasize that the proposal would:

  • Restrict employer flexibility in pay decisions.  The PFA would effectively prohibit employers from using many legitimate factors to compensate their employees, including professional experience, education, training, employer need, local labor market rates, hazard pay, shift differentials and the profitability of the organization.
    The PFA would permit employers to base pay decisions only on production, merit and seniority.
  • Require collection of employer wage data.  The PFA would authorize the Equal Employment Opportunity Commission and the Department of Labor to collect compensation data from compensation managers.
  • Reduce employee privacy. The PFA would effectively encourage employees to discuss or publicize their co-workers’ wages by preventing employer retaliation against an individual who publicly discloses the wages of other employees.

For SHRM’s analysis of the PFA (S.3220), go here.

 

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