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Orrick, Herrington & Sutcliffe LLP
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Orrick, Herrington & Sutcliffe LLP
Enforcement, the Law and the Politics of Equal Pay
Presented by Gary Siniscalco
Employment Law & Litigation GroupNew YorkOctober 4-5, 2012
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In the news…and here to stay…
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Hot Areas of Litigation and Enforcement
Pay
Promotion
Pregnancy and Work/Life Balance
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EQUAL PAY
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Pay Cases
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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!
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Legal Framework: Title VII and EPA
Basis for Investigation
Charge Only Charge or Directed Investigation
Title VII EPA
Comparators Equal or similarly-situated Equal work
Protected Class Sex, race, etc. Sex only
Defenses 206(d) defenses 206(d) defenses
• Seniority• Merit• Measurement system (quality or quantity of production)• Any other fact
Same
Theory Intent or disparate impact theory Strict liability (no intent required)
Proof Pattern data & individual cohort comparisons
Individual cohort comparisons (pattern?)
Geographic Scope
Established or broader By establishment unless…?
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Legal Framework: Title VII and EPA
Basis for Investigation
Charge Only Charge or Directed Investigation
Title VII EPA
Limitations Period 300 days prior to charge 2 years prior to date of filing lawsuit
Administrative Discovery
RFI, subpoena, right to petition and enforcement
RFI, subpoena and enforcement (no right to appeal)
29 CFR 1601.16 29 CFR 1620.31
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KING V. ACOSTA SALESOPINION BY
J. EASTERBROOK
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Legislative Efforts on Equal Pay
Paycheck Fairness Act fails again
“End Pay Discrimination Through Information Act”
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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
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Common Themes Regarding Relevant Statistical Data
Aggregated vs. disaggregated data
Relevant comparator groups
Burdensome requests for company-wide data
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Pay Investigations
Anticipating an OFCCP (or EEOC) systemic pay analysis
Consider:
by establishment
by larger business unit
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Pay Investigations OFCCP (and EEOC)
Who is doing equal or similar work?
Sort by business unit; department; job code or function; job title.
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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
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Pay Differences
Analysis includes:
Mean/median pay
Pattern distribution
Cohort comparators
Pay differences
Is showing “no pattern” of pay bias enough?
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ADMINISTATION’S POLICIES ON PAY
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EQUAL PAY –EEOC TRAINING
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EPA RFIS
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OFCCP’S PROPOSED NEW FORM DATA REQUEST
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NOT APPROVED BUT…
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ANALYZING PAY DATA
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Pay Litigation or Privileged Pay Equity Study
The Players
In-House Legal HR Comp IT
Outside Counsel Expert(s) Labor ─ Economist/Statistician Comp Expert
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Pay Litigation or Privileged Pay Equity Study (cont’d)
Documents
All comp policies
All comp training
All comp directives
Base
Bonuses
Benefits
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
} re
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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
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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
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SAMPLE AUDIT APPROACH
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