Wednesday, September 29, 2010

Not Just for Women - The Paycheck Fairness Act

As I noted yesterday, the push is on to enact the Paycheck Fairness Act (PFA). The commentary on this proposed piece of legislation has focused almost entirely on women. And why wouldn't it?

Reading the text of the bill, we see that the findings relate to women, and the most prominent amendments apply to the Equal Pay Act (EPA). The EPA being a section of the FLSA (enough acronyms yet?) prohibiting differences in pay on "the basis of sex." But wait! There's more!

Wage Information-Sharing
The PFA will amend the antiretaliation provision of the FLSA to protect an employee who "has inquired about, discussed or disclosed the wages of the employee or another employee." This will facilitate and protect the sharing of wage information between employees, calling attention to disparities.... and not just differences between men's and women's wages. Once other disparities are discovered, the discrimination claims will likely follow (under another statute, other than EPA).

EEOC Information Gathering
The PFA also commands the EEOC to "issue regulations to provide for the collection of pay information data from employers as described by the sex, race, and national origin of employees." Again, we have another provision aimed at finding pay disparities beyond just those between men and women.

Conclusion
The sections of the PFA noted above have one thing in common: information gathering. Among employees, and by the EEOC. Inevitably, some disparities will be discovered. Once they are, what will happen next? For employers, a likely increase in discrimination litigation, beyond just sex-based claims. Long term? Maybe even new legislation.

We shall see... or not (if the PFA is never signed into law).

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.