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Local firm unveils new tool to track pay equity laws

SHERRY KARABIN
Legal News Reporter

Published: March 16, 2018

Decades ago the federal Equal Pay Act of 1963 sought to prohibit wage discrimination based on gender, but the 2016 presidential election campaign of Democrat Hillary Clinton and the recent #MeToo and Time’s Up movements are shining an increasingly bright light on the issue.

As pay equity takes center stage, Fisher Phillips partner Cheryl Pinarchick said tougher legislation and ordinances are being enacted across the country in an effort to try to eliminate the “pay gap” and litigation and multimillion dollar settlements are on the rise.

“Even though the idea of ‘equal pay for equal work’ has been the law of the land for decades, disparities persist.

“But a renewed focus on pay equity, helped along by the presidential campaign and the advocacy of celebrities such as Patricia Arquette, Reese Witherspoon and Jennifer Lawrence, is creating new laws, regulations and lawsuits,” said Pinarchick. “The social media campaigns that have followed have brought the issue of pay equity into the spotlight in a way that has not been seen in the past.

“A number of bellwether states have enacted robust pay equality statutes and even localities are passing ordinances addressing pay equity issues,” she said. “The pace of the changes can make it difficult for employers to keep up with the new rules.”

At the end of 2016, before the #MeToo and Time’s Up movements, the management-side labor and employment law firm launched its Pay Equity Practice Group, which Pinarchick co-chairs together with partners Cheryl Behymer and Kathleen Caminiti.

“Fisher Phillips has long positioned itself as an authority in this area of law,” said Caminiti. “When it became apparent that these issues were overlapping with other types of employment law, the firm launched the practice group to get ahead of potential litigation and assist clients in taking proactive steps.”

In February, members of the practice group unveiled the Pay Equity Interactive Map, which summarizes the laws and legislation in each state, updating any changes that may occur.

The map, which can be accessed via the firm’s website, is available to clients, employers and the general public.

“Each state is color coded based on the provisions that are in effect in that state,” said Pinarchick. “The gray color indicates that the pay equity laws in the state address only pay disparities based on gender specific, while red means that the rules apply to gender plus other protected categories of employees.”

In Ohio, wage discrimination is prohibited under Ohio Rev. Code § 4111.17, which Pinarchick said took effect in 2000 and largely mirrors the federal Equal Pay Act “except for the fact that the law prohibits pay disparities based upon numerous protected categories of employees, not just gender.

“The Ohio law protects a number of different protected classes, including race, color, religion, sex, age, national origin and ancestry,” she said. “The fact that pay disparity exists, however, does not necessarily mean the disparity is unlawful.

“There are certain affirmative defenses available to employers charged with violating the law, including seniority and a merit system.”

Despite the law, statistics from the nonprofit National Partnership for Women & Families show Ohio still has a long way to go to close the gender wage gap.

According to the organization’s 2016 fact sheet, the average woman who works full time in Ohio is paid 78 cents for every dollar paid to a male employee. Women of color fared far worse, with African-Americans receiving 66 cents and Latinos 60 cents.

Asian women, however, received 86 cents for every dollar paid to white non-Hispanic men.

Last year State Reps. Kathleen Clyde (D-Kent) and Stephanie Howse (D-Cleveland) introduced House Bill 180 (Ohio Equal Pay Act), which would require businesses that contract with the state to obtain an Equal Pay Certificate certifying that the employer offers the same opportunities to its employees, regardless of gender.

It would also prohibit gag orders on employees that keep them from discussing their salaries with each other and mandate that government entities evaluate their pay scales to ensure compensation is similar across job categories for positions requiring similar skills, responsibilities and working conditions.

The bill was referred to the House Government Accountability and Oversight Committee.

As pay equity continues to remain at the forefront of the national dialogue, Caminiti said she’s advising her clients to consider an internal, privileged audit of their pay practices.

“The audit should take a holistic approach, reviewing employee pay, the factors that go into determining compensation and how much discretion is involved,” said Caminiti. “Sometimes when an employer runs the numbers, it starts to see gaps.

“If that happens, it’s a good idea to dig in and figure out the genesis of the disparities and correct the issues going forward,” said Caminiti. “The audit is a good way to avoid litigation down the road.”

“The federal Equal Pay Act and the more robust state laws allow employees to file potentially costly pay collection actions and we predict those actions are likely to rise exponentially in the near future as wage and hour claims have done over the past few years,” said Pinarchick.


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