Employment RelationshipThe FLSA mandates that, unless an exemption applies, an “employer” pay its “employees” in compliance with the Act’s minimum wage and overtime requirements. 29 U.S.C. §§ 206, 207. The statute’s definitions of these terms are expansive and meant to indicate that the law applies to a broad range of employment relationships.

heir own equal pay laws aimed at breaking the cycle of unfair compensation. Despite efforts at the federal and state levels to break the cycle of unfair compensation, the pay gap between men and women continues to persist. Recently, states have taken a new approach to alleviating gender- and/or race-based wage disparities by enacting salary history bans and pay transparency laws.Federal ProtectionsThe Equal Pay Act of 1963The Equal Pay Act prohibits sex-based employment discrimination. “No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions...”29 U.S.C. §206(d)(1). The Equal Pay Act was an effort to provide a remedy for what was perceived to be a serious and endemic problem of employment discrimination in private industry that reflected “an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman even though his duties are the same.”If there is an inequality in wages between men and women who perform substantially equal jobs at the same establishment, the employer is required to raise wages to equalize pay. Employers also are prohibited from reducing wages in order to comply with the Equal Pay Act. 29 USC §206(d).The law provides guidelines for when unequal pay is permitted – specifically, when there is: (a) a bona fide seniority system; (b) a merit system; (c) a system that measures earnings by quantity or quality of production; or (d) a differential based on any factor other than sex (also known as the four affirmative defenses). 29 U.S.C. § 206(d)(1).Other Equal Pay LawsFollowing the passage of

We’ll talk about the language in red next week, since coverage of this change has slid largely under the radar.541.100(a)(1): Compensated on a salary basis as of [EFFECTIVE DATE OF FINAL RULE] at a rate per week of not less than $921 (or $774 per week, if employed in American Samoa by employers other than the Federal government), exclusive of board, lodging or other facilities. As of [DATE TBD] on each subsequent year, compensated on a salary bases at a rate per week of not less than the updated salary rate published annually by the Secretary in the Federal Register at least 60 days earlier (with the rate for American Samoa to be calculated at 84 percent of the updated salary rate, provided that when the highest industry minimum wage for American Samoa equals under the minimum wage under 29 U.S. C. 206(a)(1), exempt employees employed in all industries in American Samoa shall be paid the full salary rate), exclusive of board, lodging or other facilities.541.200(a)(1): Same changes541.204(a)(1): Same changes, inserted before “exclusive of board, lodging . . .” language that already appears in this section.541.300(a)(1): Same changes541.600(b): The section 13(a)1) exemption applies to any computer employee who, as of [EFFECTIVE DATE OF FINAL RULE] is compensated on a salary basis or fee basis at a rate per week of not less than $921 (or $774 per week, if employed in American Samoa by employers other than the Federal government), exclusive of board, lodging or other facilities. As of [DATE TBD] on each subsequent year, the section 13(a)(1) exemption applies to any computer employee who is compensated on a salary bases at a rate per week of not less than the updated salary rate published annually by the Secretary in the Federal Register at least 60 days earlier (with the rate for American Sam

n at the forefront of gender pay equity for years in her role with the United States Women’s National Soccer Team and recently authored a “playbook” for employers on the subject.For employers, gender pay equity issues can arise as a legal issue in multiple ways. One way is through the Equal Pay Act of 1963. Another way is in a claim for gender discrimination under Title VII of the Civil Right Act of 1964. Given that both of these laws have been on the books for 60 years, the principles of equal pay should be well-known to employers.Equal Pay Act claimsThe EPA prohibits pay discrimination on the basis of sex. Specifically, it prohibits employers from discriminating “between employees on the basis of sex by paying wages to employees … at a rate less than the rate at which (the employer) pays wages to employees of the opposite sex … for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions….” 29 U.S.C. § 206(d)(1). In lay person’s terms, the EPA requires equal pay for equal work as between men and women.This does not mean identical work is required. Rather, an employee must show that the skill, effort, and responsibility required in the performance of the jobs compared are substantially equal. But the EPA does recognize four exceptions to the law where pay disparities may result: a seniority system, a merit pay system, a system that measures earnings by quantity or quality of production, or any factor other than sex. In Eisenhauer v. Culinary Institute of America, 84 F.4th 507 (2nd Cir. 2023), the court found that a gender-neutral compensation plan in a collective bargaining agreement is a factor other than sex and comes within the exception.Where there is not equal pay for equal jobs under the terms of Section 206(d)(1), an employee has a claim for damages. The EPA is part of the Fair Labor Standards Act so the monetary damages consist of back pay for the pay differential (and any differences

That Bill passed the House, but stalled in the Senate. The big push is now on among supporters of the new H.R. 7 to build momentum to get to a successful Floor vote in the Senate this year before other legislative priorities choke out the PFA.About the BillH.R. 7 states its initial intent to amend the 1963 Equal Pay Act which was an amendment to the 1938 Fair Labor Standards Act and appears within it at 29 USC 206(d). The Equal Employment Opportunity Commission (EEOC) enforces the Equal Pay Act since 1978 and not either the U.S. Department of Labor or the Office of Federal Contract Compliance Programs (OFCCP).

What that means, especially in this day and age, is that almost every employer in the United States is covered by the FLSA. You have to be pretty small or specifically exempted not to be covered. So keep that in mind as we move along.Now, back to our program.29 USC § 206 provides that:Every employer shall pay to each of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, wages at the following rates:(1) except as otherwise provide in this section, not less than(c) $7.25 an hour . . . .That’s the minimum wage provision and covers a big part of what we are going to cover in the coming weeks. It also raises the first question: What if you work in a state that has a higher minimum wage than the federal minimum wage? Well, the answer to that is simple, you pay the higher state minimum wage.

15 for every hour worked through 40 in a workweek. See 29 U.S.C. §206(a).1 Under the FLSA, whether an employee is paid on an hourly or salary basis is immaterial so long as the employee’s regular rate of pay is at least equal to the federal minimum wage for all hours worked in non-overtime weeks. See Field Operations Handbook §30b02.

15 for every hour worked through 40 in a workweek. See 29 U.S.C. § 206(a).1 Under the FLSA, whether an employee is paid on an hourly or salary basis is immaterial so long as the employee’s regular rate of pay is at least equal to the federal minimum wage for all hours worked in non-overtime weeks. See Field Operations Handbook § 30b02.

In Helix Energy Solutions Group, Inc. v. Hewitt, an offshore oil rig worker working 84 hours per week was paid on a daily-rate basis – his daily compensation rate times the number of days worked in a two-week period – with no overtime compensation. His annual compensation exceeded $200,000. Hewitt sued Helix for failure to pay him overtime as required by the FLSA. Helix asserted that Hewitt was exempt from overtime because he was a “bona fide executive” and a highly compensated employee (“HCE”).In its opinion, the Court provides a thorough explanation of the purpose of the FLSA (the elimination of “substandard wages” and “oppressive working hours”), and the Department of Labor’s regulations concerning the FLSA.The FLSA requires employers to pay overtime compensation to most employees who work more than 40 hours in a week, while certain employees are “exempt” from the overtime pay requirement. 29 U.S.C. § 206. An employee is exempt as a “bona fide executive” if the employee meets three tests: (1) the employee is paid a “predetermined and fixed salary” (salary basis test); (2) the salary exceeds a specified amount (salary level test); and (3) the employee regularly performs certain job responsibilities (duties test). See 29 U.S.C. 213(a)(1); 84 Fed. Reg. 51230. The test at issue in Helix is the salary basis test. But, as the Court explained, the analysis has “a layer of complexity” due to the Secretary of Labor’s two separate rules applicable to bona fide executives – one that applies to employees paid less than $100,000 annually, and another (the “HCE” rule) that applies to employees paid at least $100,000 annually. (That threshold has been raised to $107,430 since the events in Helix.)Like an employee earning less than $100,000, HCEs satisfy the bona fide executive test if they are compensated on a salary basis (salary basis test) and are paid a specified minimum amount per week (salary l

t to place newly hired teachers at the first step of the salary schedule and without providing credit for step placement for prior teaching experience in other school districts. The female teachers’ complaint identified twenty-six (26) male teachers who received salary step credit for prior teaching experience in other school districts upon their employment by the School District.The female teachers asserted claims of discriminatory employment practices by the School District pursuant to the Equal Pay Act, the Fair Labor Standards Act and the Equal Protection Act. The claimants requested, and the court granted, collective certification to allow them to pursue their claims collectively rather by individual suits.DiscussionThe Equal Pay Act prohibits employers from compensating employees of one sex differently than it compensates employees of another when the work all the employees perform requires equal skill, effort, and responsibility and is performed under similar working conditions.29 U.S.C. § 206(d)(1). The Fair Labor Standards Act (“FLSA”) provides a mechanism through which individual Equal Protection Act (“EPA”) litigants can aggregate their claims and proceed collectively.Because the female teachers were similarly situated, the court allowed their claims to proceed collectively.Notable to this certification was that the School District advocated against collective certification on the basis that the teachers’ claims were barred by the two-year statute of limitations applicable to Equal Pay Act claims. In this regard, most of the claimant teachers had been initially employed by the School District more than two years prior to the filing of the suit. The federal court rejected this assertion on the premise that, for a continuing violation, the statute of limitations begins on the date of the last occurrence of discrimination, rather than the first. Thus, although the female teachers were hired years ago, beginning as early as the 2000 calendar year, their claims were not foreclosed