Legal

EEOC’s Equal Pay Proposal Is Still Just That So Far — a Proposal

By Rick Bell

Jan. 29, 2016

There’s been a lot of chatter today regarding the U.S. Equal Opportunity Commission’s Jan. 29 proposal on equal pay, which would require employers to disclose compensation information as a way to detect pay discrimination.

We’ve written stories in the past regarding pay transparency. Those companies of course were doing it voluntarily, and employees had no choice but to buy in or get out. Rather than pay secrecy, they embrace the opposite.

Read: Pay Transparency: Paid in Full Disclosure

Some even tout pay transparency as “fairness instead of inequities, dedication instead of detachment and collaboration instead of fiefdoms.”

Fair enough.

I have no issue with the EEOC wanting to ferret out bias in someone’s pay, especially since it comes on the anniversary of the seventh anniversary of the historic Lilly Ledbetter Act. 

Read: Lilly Ledbetter Interview: 'Miss Lilly' Speaks Her Mind

But if this proposal become reality — comments will be taken un til April 1 with a September 2017 date set for implementation — the EEOC must understand that it’s not one size fits all. Equal pay for equal work, sure. But compensation can shift based on a number of factors, such as seniority or level of education.

Read: Wagering on Equal Wages

I also wanted to share the thoughts of several employment law and compensation experts who weighed in via email today with their thoughts on the EEOC’s proposal.

This, from WorldatWork:

“WorldatWork respects the important role that the U.S. federal government plays in establishing regulations in which organizations must operate. However, with each new government intervention, workplace activities become more restricted as American businesses are forced to comply with yet another layer of costly and burdensome administrative requirements. A number of federal laws already require data collection that is sufficient to ensure equal pay. For new requirements to be justified, the government needs to demonstrate an increased need for this data.”

And this, from Connie Bertram, the head of the D.C. Labor and Employment Practice and a partner at law firm Proskauer:

“Although the EEOC believes that the information they will collect from these new disclosures will allow the agency to identify potential discrimination on the basis of pay, the proposed changes ‘fail to address how the EEOC would account for the myriad of other factors that impact an individual’s pay, like performance, education, and seniority.’

“Without expressly saying so, the EEOC is effectively replacing a recent proposed rule issued by the OFCCP [Office of Federal Contract Compliance Programs] requiring compensation data reports by government contractors, and broadening it to apply to all employers with more than 100 employees.

“EEOC has said it is not requiring any employer with fewer than 100 employees to provide the new pay information. Thus, it is unclear what, if any, compensation information contractors with less than 100 employees will be required to disclose.”

“There is no doubt that the EEOC and the OFCCP will use the information they collect to target employers for perceived discrimination, even absent a specific complaint.”

The one thing to remember is that this is a proposal. And it’s one that has generated a lot of interest in a damn short amount of time. 

Rick Bell is Workforce’s editorial director. For comments or questions email editors@workforce.com.

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