Categorized | News, Opinion


The misnamed Paycheck Fairness Act (I call it the Your Co-Worker Finds Out Your Salary Act) is touted as the answer to alleged pay disparity.  There are significant questions on that statistic – hey, just like global warming! – but why not, it’s good for you!

Here is an article in the Nation that admits:  Sandy’s right!  Bryce Covert says this bill will be a wedge to get Democrats elected for elections to come.  Then she admits:  Your co-worker will know YOUR salary!  And she agrees with it!

The act is undoubtedly sound policy. The gender wage gap has barely budged in recent decades, and the bill aims to help reduce it by protecting workers from retaliation if they compare wages. The Institute for Women’s Policy Research has found that nearly half of all workers are either forbidden or strongly discouraged from sharing that information, yet “pay secrecy makes it difficult for women and men to find out whether they are paid fairly, and undermines attempts to reduce the gender wage gap.” As Irin Carmon wrote last week, this secrecy is likely a root cause of the lack of pay discrimination cases brought against employers. It may be illegal to pay women differently for the same work, but they’ll be in the dark about what’s going on unless they can compare their pay to their coworkers’.  (emphasis added)

If there is a legitimate wage discrimination claim filed in court, the lawyers can find out wage information and it is not public knowledge.  But this law is claimed to make salaries in the private sector available to anybody who wants to know.  I can safely guarantee if you took an exit poll in the Badger State even the union activists would not want their salary revealed to whoever wants to know!

As Peter Pan says in Hook, ‘Don’t mess with me, I’m a lawyer!”  Here’s the text of 29 USC 206(d):

(d) Prohibition of sex discrimination

(1) No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to

(i) a seniority system;
(ii) a merit system;
(iii) a system which measures earnings by quantity or quality of production; or
(iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.
(2) No labor organization, or its agents, representing employees of an employer having employees subject to any provisions of this section shall cause or attempt to cause such an employer to discriminate against an employee in violation of paragraph (1) of this subsection.
(3) For purposes of administration and enforcement, any amounts owing to any employee which have been withheld in violation of this subsection shall be deemed to be unpaid minimum wages or unpaid overtime compensation under this chapter.
(4) As used in this subsection, the term “labor organization” means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.
The Your Co-Workers Will Know Your Salary Act adds this:
(B) The bona fide factor defense described in subparagraph (A)(iv)  [The bill changes “any other factor other than sex” to “a bona fide factor other than sex, such as education, training, or experience” ] shall apply only if the employer demonstrates that such factor (i) is not based upon or derived from a sex-based differential in compensation; (ii) is job-related with respect to the position in question; and (iii) is consistent with business necessity. Such defense shall not apply where the employee demonstrates that an alternative employment practice exists that would serve the same business purpose without producing such differential and that the employer has refused to adopt such alternative practice.‘(C) For purposes of subparagraph (A), employees shall be deemed to work in the same establishment if the employees work for the same employer at workplaces located in the same county or similar political subdivision of a State. The preceding sentence shall not be construed as limiting broader applications of the term ‘establishment’ consistent with rules prescribed or guidance issued by the Equal Opportunity Employment Commission.’.

I would suggest that the liberals want to make it harder to defend equal pay suits.  Why change the clear “any other factor other than sex” to this mumbo-jumbo “a bona fide factor other than sex”?  This law says an employer must do MORE than not discriminate on the basis of sex (I prefer “gender” by the way), the employer must also show the pay differential is “job-related” and consistent with “business necessity”.  Business necessity is a term of art from a Supreme Court case that interpreted Title VII (employment discrimination) of the the Civil Rights Act of 1964 and it is almost impossible to demonstrate.  I am not sure why an equal pay act needs all this other legal gloss.  Of course, pay differentials on the basis of “sex” (gender) violate BOTH this law and Title VII.  The Paycheck Fairness Your Co-Workers Will Know Your Salary Act is thus unnecessary!

But there’s more!  Section 8 of this misbegotten law requires record-keeping and reporting to the EEOC:

‘(f)(1) Not later than 18 months after the date of enactment of this subsection, the Commission shall–

‘(A) complete a survey of the data that is currently available to the Federal Government relating to employee pay information for use in the enforcement of Federal laws prohibiting pay discrimination and, in consultation with other relevant Federal agencies, identify additional data collections that will enhance the enforcement of such laws; and

‘(B) based on the results of the survey and consultations under subparagraph (A), issue regulations to provide for the collection of pay information data from employers as described by the sex, race, and national origin of employees.

‘(2) In implementing paragraph (1), the Commission shall have as its primary consideration the most effective and efficient means for enhancing the enforcement of Federal laws prohibiting pay discrimination. For this purpose, the Commission shall consider factors including the imposition of burdens on employers, the frequency of required data collection reports (including which employers should be required to prepare reports), appropriate protections for maintaining data confidentiality, and the most effective format for the data collection reports.’.

The EEOC will require all businesses over 15 employees to give salary information to them.  Let’s not increase the paperwork for business on the basis of ideology and dubious statistics that women are seriously underpaid.

A group like Americans for Prosperity needs to run ads explaining why this is a bad law.  Feel free to use this blog as needed!  Let’s explain one more time:  This bill is an intrusion into people’s privacy and places an undue burden on businesses.  It has nothing to do with equal pay!


About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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