70 | Developments in Equal Pay Litigation ©2024 Seyfarth Shaw LLP place of business is ordinarily considered a separate establishment” under the EPA.576 The regulations contrast this with the entire business, or “enterprise,” which “may include several separate places of business.”577 Courts presume that multiple offices are not a “single establishment” unless unusual circumstances are demonstrated.578 Not surprisingly, defining the scope of the establishment for purposes of comparing salaries and wages is a frequently contested issue in EPA litigation. For example, in Moazzaz v. Metlife, Inc.,579 a Senior Vice President and Chief Administrative Officer and Interim Global Head of Digital Strategy alleged she was paid less than male employees with similar-level positions, such as the Head of Japan Operations and Europe, Middle East and Africa Chief Financial Officer.580 The employer argued that those positions were too geographically separate from plaintiff’s position and therefore not within the same “establishment” as defined by the EPA. However, the court held that plaintiff had alleged sufficient facts at the pleading stage to allow the case to proceed based on those comparators. The court noted that “[t]he foreign comparators all appear to be members of [employer’s] leadership team,” who reported directly to plaintiff and other centralized high-level officers. The court concluded that “[i]t is thus improbable that foreign [employer] personnel, instead of, say, . . . the Head of Human Resources for Global Technology and Operations, would have been responsible for the Head of Asia IT's specific salary.”581 Courts are often quick to stress that extending an EPA claim beyond a single establishment is the exception rather than the rule, and it requires the existence of “unusual circumstances” that tie together a larger group of employees under some centralized decision-making scheme. For example, in Winks v. Virginia Department of Transportation,582 an employee of a state agency alleged she was paid less than male employees for the same work. The agency argued that those comparators did not work in the same establishment as the plaintiff.583 The court found that there were no “unusual circumstances” that would justify expanding the usual definition of an establishment as a distinct physical place of business because the agency’s nine regional districts operated independently from its central office with respect to whom to hire and what to pay: “The districts, not the Central Office, control the duties and assignments of the NPDES Coordinators on a daily basis. Each district functions as a largely independent unit within VDOT, making its own decisions with only high-level oversight from the Central Office. In scenarios with similar facts, courts have repeatedly found that regional offices could not constitute a combined single establishment.”584 576 29 C.F.R. §1620.9(a). 577 Id. 578 See, e.g., Meeks v. Computer Assocs. Int'l, 15 F.3d 1013, 1017 (11th Cir. 1994) (holding that evidence did not “demonstrate the level of centralization necessary to justify treating all of the company's technical writers as working at a single establishment” where “the specific salary to be offered a job applicant is determined by the local supervisor”); Kassman v. KPMG LLP, 416 F. Supp. 3d 252, 287 (S.D.N.Y. 2018) (finding that pay and promotion decisions were not sufficiently “centralized” to amount to “unusual circumstances” warranting a finding that the many offices and practice areas qualify as a single “establishment” under the EPA because “although [defendant] set generally applicable guidelines, individual pay and promotion decisions were left to the discretion of local practice area leaders,” which decisions were “reviewed by firm leadership on an aggregate basis against budget”). 579 Moazzaz v. Metlife, Inc., No. 19-cv-10531 (JPO), 2021 WL 827648 (S.D.N.Y. Mar. 4, 2021). 580 Id. at *5. 581 Id. See also Boisjoly v. Aaron Manor, Inc., No. 3:21-cv-01621-MPS, 2022 WL 17272372, at *1 (D. Conn. Nov. 29, 2022) (refusing to dismiss at the pleading stage plaintiff’s EPA claims on the basis of the employer’s argument that her comparators worked at a different “establishment” because such determinations are fact-intensive and should not be made without the benefit of discovery: “[Plaintiff] alleges that [employer] is a central administrative unit that hires employees, sets wages, and assigns the location of employment for its employees. This is enough at the pleadings stage to allow her to take discovery to prove whether unusual circumstances are present”) (internal citations omitted); Vasser v. Mapco Express, LLC, 546 F. Supp. 3d 694, 700 (M.D. Tenn. 2021) (holding that plaintiffs had adequately alleged that a large chain of gas stations and convenience stores were a single establishment under the EPA because “Plaintiffs allege that [employer] has ‘a rigid top down, hierarchical corporate structure,’ with a ‘top down wage policy.’ . . . These allegations are sufficient for an initial finding of a ‘single establishment’ at the motion to dismiss stage”). 582 Winks v. Va. Dep’t of Transp., No. 3:20-cv-420-HEH, 2021 WL 5614764 (E.D. Va. Nov. 30, 2021). 583 Id. at *3. 584 Id. at *4 (emphasis in original).
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