1

Orrick, Herrington & Sutcliffe LLP

1

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

 

 

   

 

  

22

In the news…and here to stay…

33

Hot Areas of Litigation and Enforcement

Pay

Promotion

Pregnancy and Work/Life Balance

44

EQUAL PAY

55

Pay Cases

66

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!

77

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…?

88

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

99

KING V. ACOSTA SALESOPINION BY

J. EASTERBROOK

1010

Legislative Efforts on Equal Pay

Paycheck Fairness Act fails again

“End Pay Discrimination Through Information Act”

1111

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

1212

Common Themes Regarding Relevant Statistical Data

Aggregated vs. disaggregated data

Relevant comparator groups

Burdensome requests for company-wide data

1313

Pay Investigations

Anticipating an OFCCP (or EEOC) systemic pay analysis

Consider:

by establishment

by larger business unit

1414

Pay Investigations OFCCP (and EEOC)

Who is doing equal or similar work?

Sort by business unit; department; job code or function; job title.

1515

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

1616

Pay Differences

Analysis includes:

Mean/median pay

Pattern distribution

Cohort comparators

Pay differences

Is showing “no pattern” of pay bias enough?

1717

ADMINISTATION’S POLICIES ON PAY

1818

EQUAL PAY –EEOC TRAINING

1919

EPA RFIS

2020

OFCCP’S PROPOSED NEW FORM DATA REQUEST

__ __ __ __

NOT APPROVED BUT…

2121

ANALYZING PAY DATA

2222

Pay Litigation or Privileged Pay Equity Study

The Players

In-House Legal HR Comp IT

Outside Counsel Expert(s) Labor ─ Economist/Statistician Comp Expert

2323

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

2424

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

2525

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

2626

SAMPLE AUDIT APPROACH