28 | Developments in Equal Pay Litigation ©2023 Seyfarth Shaw LLP work history on its application, which served to perpetuate the practice of paying female employees less than male employees.214 The court rejected plaintiff’s bases for conditional certification, holding that “[w]ith over fifty-three different sub-categories, the employees in the Architect/Engineer I position have significant differences in crucial details like day-to-day responsibilities and skill requirements,” and noting that the employer “maintains that it considers thirteen factors when considering an appropriate salary for each individual plaintiff,” that it “uses a market-based pay system to ensure that salaries are competitive in each locality,” and that “[e]ach local [employer] office determines a salary range that is competitive and individualized to the person and the position.”215 The Court concluded that “[t]he decentralized and individualized nature of pay determinations alone is sufficient to demonstrate the absence of a common policy implemented throughout all of [employer’s] offices.”216 Moreover, the court pointed to the recent decision in Abe v. Virginia Department of Environmental Quality, wherein the Fourth Circuit held that the use of salary history can justify a pay disparity:217 “This standard requires a specific showing that a plaintiff's reduced salary is due to her status as a female, and cannot be attributed to variations in prior salary history, job responsibilities and qualifications, location, or other factors.”218 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 may allow such a claim to proceed as a collective action. For example, in Vasser v. Mapco Express, LLC,219 two female convenience store managers brought 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,’” which was enough at the motion to dismiss stage to show that the multiple chain locations constituted a single establishment under the EPA.220 The court relied on the same reasoning to conditionally approve a nationwide collective action.221 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.’”222 214 Id. at *1. 215 Id. at *2-3. 216 Id. at *3. 217 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)). 218 Id. 219 Vasser v. Mapco Express, LLC, No. 3:20-cv-00665, 2021 WL 2661136 (M.D. Tenn. June 29, 2021). 220 Id. at *3. 221 Id. at *4. 222 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)).
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