Developments In Equal Pay Litigation - 2022 Update

24 | Developments in Equal Pay Litigation © 2022 Seyfarth Shaw LLP history can justify a pay disparity. 184 The employer must therefore prove that pay history, along with other factors and affirmative defenses justify the pay disparity: “This standard requires a specific showing that a plaintiff's reduced salary is due to her status a female, and cannot be attributed to variations in prior salary history, job responsibilities and qualifications, location, or other factors.” 185 Accordingly, an employer’s use of salary history is not only permissible, but is also a factor that makes conditional certification of a collective action less appropriate. For collective actions that would encompass plaintiffs who work in different physical “establishments”— different stores or office locations, for example—the critical questions for certification often center around corporate hierarchy and decision making. Where a plaintiff can establish that critical compensation decisions were made by one group in one location, courts will allow such a claim to proceed as a collective action. For example, in Vasser v. Mapco Express, LLC , 186 two female convenience store managers alleged that they were paid less than similarly situated male employees and brought their claims on behalf of a putative collective action comprised of female store managers who worked in hundreds of chain locations across several states. The court first held that the female employees had adequately alleged an EPA claim, despite the fact that comparable employees would have worked at other chain locations. The Court held that the plaintiffs had alleged that the employer has ‘a rigid top down, hierarchical corporate structure,’ with a ‘top down wage policy.’” 187 The court held this was enough at the motion to dismiss stage to show that the multiple chain locations constituted a single establishment under the EPA. 188 The court relied on the same reasoning to conditionally approve a nationwide collective action of: “all female Store Managers at [employer] and other similarly situated current and former employees holding comparable positions but different titles at [employer’s] locations nationwide at any time from the three years prior to the filing of Plaintiffs’ Complaint, June 4, 2017 to the present.” 189 The court stressed that a plaintiff’s burden at the conditional certification stage is a “low bar,” and credited Plaintiff’s allegations that the employer exercised “’centralized, top-down compensation authority,’” which was an “’incubator for pay inequality.’” 190 Even if plaintiffs are successful in obtaining conditional certification of a collective action, that collective action may later be decertified after discovery has revealed substantial differences among collective action members, which makes certification through trial untenable, or that compensation decisions are not as centralized as was claimed. In particular, if an employer can show that the relevant compensation decisions were made at the local level, or with significant input from local managers, that can sometimes defeat certification of sprawling collective actions that seek to extend beyond a single establishment. 184 Id. (citing Abe v. Va. Dep’t of Env’t Quality , No. 3:20-cv-270, 2021 WL 1250346, at *4 (E.D. Va. Apr. 5, 2021)). 185 Id. 186 Vasser v. Mapco Express, LLC , No. 3:20-cv-00665, 2021 WL 2661136 (M.D. Tenn. June 29, 2021). 187 Id. at *3. 188 Id. 189 Id. at *4. 190 Id. See also Finefrock v. Five Guys Ops., LLC , 344 F. Supp. 3d 783 (M.D. Pa. 2018). In that case, the District Court for the Middle District of Pennsylvania initially granted conditional certification of a collective action of female restaurant Assistant and General Managers. Defendant tried to defeat conditional certification by pointing to the fact that the EPA only addresses wage disparities among the same “establishment,” meaning a “distinct physical place of business rather than an entire business or ‘enterprise’ which may include several separate places of business.” Id. at 789 (quoting 29 C.F.R. § 1620.9(a)). The court held that plaintiffs had provided a sufficient modest factual showing that the employer could be considered a single establishment for purposes of the EPA, pointing to the employer’s nationwide job descriptions and policies, the frequency with which plaintiffs had transferred store locations, and the fact that final compensation decisions were approved by the central office. Id. Those same factors allowed the court to conclude that conditional certification of a nationwide collective action was appropriate: “[b]ecause the focus of the inquiry at this conditional certification stage is not whether there was an actual violation of law, but rather whether the proposed Plaintiffs are similarly situated, the court finds that Plaintiffs have met their modest factual burden.” Id. at 791; see also Gambino v. City of St. Cloud , No. 6:18-cv-869-Orl-31TBS, 2018 WL 5621517, at *8 (M.D. Fla. Oct. 11, 2018) (holding that city employees worked within the same “establishment,” noting that the Eleventh Circuit recognizes that “[u]nder appropriate circumstances, multiple offices may constitute a single establishment for EPA purposes”) (citing Marshall v. Dallas Indep. Sch. Dist ., 605 F.2d 191, 194 (5th Cir. 1979)).