Developments In Equal Pay Litigation - 2022 Update

4 | Developments in Equal Pay Litigation © 2022 Seyfarth Shaw LLP employees by race, ethnicity, and sex in ten categories, which track the federal EEO-1 categories. 21 The pay data report must include previous year W-2 earnings and hours worked for all employees and must be submitted in a searchable and sortable format. 22 In 2021, Illinois amended its Equal Pay Act so that private employers with more than 100 employees in Illinois who are required to file an EEO-1 Report with the EEOC must apply to obtain an equal pay registration certificate from the Illinois Department of Labor between March 24, 2022 and March 23, 2024. 23 Those employers must then recertify every two years thereafter. The application must include a copy of the business’s most recently filed EEO-1 Report. 24 But the law goes much further than what is currently required by the EEOC. It also requires employers to compile a list of all employees during the past calendar year, separated by gender, race, and ethnicity, the county in which the employee works, and the date the employee started working for the business, and report the total wages for those employees. Employers must also submit a statement signed by a corporate officer, legal counsel, or other authorized agent attesting to their compliance with the Illinois Equal Pay Act and other federal and state anti-discrimination laws, among other things. 25 The new legislation out of California and Illinois impose pay reporting obligations similar to what what was required by the EEOC for a short time. However, other states have approached pay transparency quite differently. For example, Colorado recently passed a law that requires employers to notify employees of “promotional opportunities.” Promotional opportunities are job vacancies that are superior to the job held by at least one employee at the same company. The law mandates that such postings must include a list of information about the position, including detailed compensation and benefits information. 26 The Colorado law also requires employers to “keep records of job descriptions and wage rate history for each employee for the duration of the employment plus two years after the end of employment in order to determine if there is a pattern of wage discrepancy.” 27 Violations of the job posting requirements are subject to state agency enforcement or a private right of action. 28 In the latter case, the law provides courts the option to provide private litigants with a rebuttable presumption that records not kept in violation of the law’s recordkeeping requirements would have contained information favorable to the employee's claim and an instruction to the jury that failure to keep records can be considered evidence that the violation was not made in good faith. 29 This approach to pay transparency arguably attempts to rectify inequitable pay disparities by putting more information into the hands of employees. Whether it will be effective or not remains to be seen. But this approach has proven quite popular, and many other states are experimenting with similar types of laws. Employers beware: equal pay legislation in the fifty states is a complex and rapidly developing issue. 21 Cal. Gov. Code § 12999. The law requires that a “private employer that has 100 or more employees and who is required to file an annual Employer Information Report (EEO-1) pursuant to federal law shall submit a pay data report to the department covering the prior calendar year . . . .” The categories of jobs required to be included in the report on are: executive or senior level officials and managers, first or mid-level officials and managers, professionals, technicians, sales workers, administrative support workers, craft workers, operatives, laborers and helpers, service workers.” Id. § 12999(b)(1)(A-J). 22 Id. , § 12999(b)(4). 23 820 Ill. Comp. Stat. 112/11(a)-(b). 24 Id. 112/11(c)(1)(A). 25 Id. 112/11(c)(1)(B). 26 C.R.S.A. § 8-5-201. The law requires employers to “make reasonable efforts to announce, post, or otherwise make known all opportunities for promotion to all current employees on the same calendar day and prior to making a promotion decision.” Id. § 8-5- 201(1). The law also requires employers to “disclose in each posting for each job opening the hourly or salary compensation, or a range of the hourly or salary compensation, and a general description of all of the benefits and other compensation to be offered to the hired applicant.” Id. § 8-5-201(2). 27 Id. , § 8-5-202. 28 Id. , § 8-5-203. 29 Id. , § 8-5-203(5). The law states that “the court may order appropriate relief, including a rebuttable presumption that records not kept by the employer in violation of section 8-5-202 contained information favorable to the employee’s claim and an instruction to the jury that failure to keep records can be considered evidence that the violation was not made in good faith.” Id.