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.

arency Office within the U.S. Department of Labor’s Wage and Hour Division regarding implementation of regulations related to the WWPA.The proposed office would be allowed to engage in investigations of a covered employer’s “facility and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such covered employer, owner, operator, agent, or covered employee.” Whether counsel would be permitted to participate in the interviews of the employer, owner, or operator is unclear, but given the addition of “privately” it would not be unreasonable to assume the expectation would be that the right to counsel would be denied. In those inspections, the secretary of labor would be empowered to select representatives of labor organizations or worker advocacy organizations with specific knowledge of the industry to “aid and accompany” investigators in the investigation.The bill would impose civil penalties for violations of 29 U.S.C. §§ 206 and 207 in amounts equal to $10,000 and $25,000. Violations of 29 U.S.C. § 8 would be subject to civil penalties in amounts not more than $76,987 per violation, or, for repeat or willful violations, in amounts not more than $769,870 per violation. The WWPA would also require the director of the Fairness and Transparency Office and the administrator of the Wage and Hour Division to jointly enter into a memorandum of understanding with the assistant secretary of labor for occupational safety and health “to encourage efficient enforcement of relevant labor laws, including … cross-training of inspectors and investigators.”Within a year of the enactment of the WWPA, OSHA would be required to publish a proposed standard requiring that all covered employers:have readily available a person “adequately trained to render first aid”; andprovide all covered employees access to an occupational medical consultation service “through a physician who is board certified in occupational medicine.”OSHA w

rt a claim under the EPA, an employee must show that she was paid less than a male comparator working in a substantially equal job. But does the employee also have to prove that the employer’s reasons for the alleged pay disparity between herself and the male comparator were a pretext for gender discrimination? The U.S. Court of Appeals for the Eleventh Circuit recently addressed this question in the case of Baker v. Upson Regional Medical Center (March 8, 2024) and took the opportunity to clarify the legal standard for establishing a claim of pay discrimination under the EPA. The EPA places the initial burden of proof upon the employee to establish a prima facie case of pay discrimination. This burden is satisfied when the employee presents evidence that her employer has paid different wages to male and female employees for equal work “on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” See EPA, 29 U.S.C. § 206(d)(1). Once the employee establishes a prima facie case, the burden shifts to the employer to prove that the difference in pay is justified by any of the following exceptions: 1) a seniority system; 2) a merit system; 3) a system which measures earnings by quantity or quality of production; or 4) a differential based on any factor other than sex. Id. Baker filed suit in Federal District Court alleging that her employer, Upson Regional Medical Center, violated the EPA by giving her a bonus compensation arrangement which was less favorable than that received by a male colleague. Upson conceded that Baker was paid less than the male colleague, but argued that the pay disparity was based on factors other than sex. Specifically, the evidence was undisputed that Baker was a physician who had been practicing for less than three years. She lacked board certification in her specialty. By comparison, her male comparator was board certified with fifteen years of practice experience, and had not been s