2 | Developments in Equal Pay Litigation ©2024 Seyfarth Shaw LLP under similar working conditions.”8 The new laws enacted in New York and Illinois have similar standards.9 The Massachusetts Equal Pay Act prohibits differences in pay for “comparable work.”10 Other states apply different standards for comparing the work between a plaintiff and his or her alleged comparators. State laws also differ with respect to the affirmative defenses available to defendants. California’s law requires employers to affirmatively demonstrate that any pay differences are based on one or more of a limited number of factors. It also limits the factors that employers can use to justify pay differentials and requires that the factors be applied reasonably and, when viewed together, must explain the entire amount of the pay differential.11 The Massachusetts law also creates an affirmative defense for an employer that has: (1) completed a self-evaluation of its pay practices that is “reasonable in detail and scope in light of the size of the employer” within the three years prior to commencement of the action; and (2) made “reasonable progress” toward eliminating pay differentials uncovered by the evaluation. State laws also differ in terms of the procedural rights and remedies available to plaintiffs and defendants. For example, the California Fair Pay Act allows employees to bring an action directly in court without first exhausting administrative remedies—provided the employee does so within two years (or three if the violation was “willful”)—and the employee may recover the balance of wages, interest, liquidated damages, costs, and reasonable attorneys’ fees.12 The California law also extends—from two years to three—an employer’s obligation to maintain records of wages and pay rates, job classifications, and other terms of employment.13 Under the California Fair Pay Act, employers may not prohibit employees from disclosing or discussing their own wages or the wages of others, or from aiding or encouraging other employees to exercise their rights under the law.14 The New York law includes a similar provision. These anti-pay secrecy requirements echo similar prohibitions under the National Labor Relations Act, the California Labor Code, and an Executive Order that applies to federal contractors. C.Pay Transparency And Other State And Local Initiatives In addition to more robust enforcement provisions, as described above, a number of states and local jurisdictions have also begun to experiment with other pay equity initiatives. Those have generally come in the form of salary history bans and pay transparency laws. Salary history bans generally prohibit or limit employers’ ability to gather information about a candidate’s past salary and/or use that information when making compensation decisions. Pay transparency laws generally require employers to provide pay range information about particular positions to applicants or to include those ranges in job postings. Some of the more onerous laws even require employers to submit reports of demographic and pay data to state agencies. What those state agencies will do with such information is not public knowledge. But some speculate it could be used to target employers for enforcement activity. State and local salary history bans generally prohibit employers from requesting the salary history of job applicants and limit their ability to consider prior salary when making offers to new hires. Those laws have sometimes been vigorously opposed by various business groups. On February 6, 2020, the U.S. Court of Appeals for the Third Circuit decided Greater Philadelphia Chamber of Commerce v. City of Philadelphia,15 which rejected a number of arguments claiming that those bans infringed on free speech. 8 Cal. Lab. Code § 1197.5(b). 9 NY Lab. Law § 194(1) (“equal work on a job the performance of which requires equal skill, effort and responsibility, and which is performed under similar working conditions,” or “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions”); 820 Ill. Comp. Stat. 112/10(a) (“the same or substantially similar work on jobs the performance of which requires substantially similar skill, effort, and responsibility, and which are performed under similar working conditions”). 10 Mass. Gen. Laws. c. 149 § 105A. 11 Id. 12 Cal. Lab. Code § 1197.5(h), (i). 13 Id. § 1197.5(e). 14 Id. § 1197.5(k)(1). 15 Greater Phila. Chamber of Commerce v. City of Phila., 949 F.3d 116 (3d Cir. 2020).
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