Developments in Equal Pay Litigation

18 | Developments in Equal Pay Litigation © 2021 Seyfarth Shaw LLP The variety of factual circumstances or job duties that that courts have relied upon to find that work was not “equal” for purposes of an EPA violation are as wide and vast as the American workplace itself. To take just a few recent examples: one court decided that newsroom photographers performed equal work, despite variations in the type and amount of video editing required by their individual jobs because, among other things, their performance evaluations showed that they were required to produce similar types of video projects as their comparators . 130 Another held that, even though plaintiff and her alleged comparator held the same job title, their work was not sufficiently similar because her comparator was handling about six or seven different clients and six or seven different service lines compared to plaintiff’s one, and managed more revenue and supervised more employees than plaintiff. 131 Many courts have been willing to dismiss a plaintiffs’ allegations at the pleading stage where the complaint makes conclusory or boilerplate allegations of similarity without describing job details in sufficient detail . 132 B. Significant Class And Collective Action Decisions Unlike the EEOC, which can bring lawsuits on behalf of a class of aggrieved individuals without meeting the requirements for class certification, private litigants must establish that their equal pay lawsuits can be decided on a collective or class-wide basis. The procedures for establishing a collective action under the federal EPA are governed by the opt-in procedures of the Fair Labor Standards Act (“FLSA”). Those procedures can confer a significant litigation advantage to plaintiffs because the standard applied at the conditional certification stage is much more lenient than the standards applied to certify a class action under Rule 23 of the Federal Rules of Civil Procedure or its state-law analogues. 1. Recent Cases Involving Collective Action Certification Section 216(b) of the FLSA allows an action under the EPA to proceed “by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” 133 The only statutorily- mandated procedural prerequisite to bringing a collective action is that: “no employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” 134 Although § 216(b) is silent as to how the collective action certification issue should be analyzed, most district courts use a two-step approach in analyzing collective action certification requests. 135 At the conditional certification stage, the court does not make any final decisions as to whether a collective action is appropriate. At the more onerous second-stage analysis, the court will ultimately account for all of the important facts learned through discovery that inform which putative plaintiffs, if any, are similarly situated to the existing plaintiffs . 136 130 See Galligan v. Detroit Free Press , 436 F. Supp. 3d 980, 993 (E.D. Mich. 2020) (holding that newsroom photographers’ work was equal despite different amounts of time spent editing different levels of video projects: “given the substantial overlap in overall work performed by [plaintiff and comparator], the one modest difference concerning percentage of time that each of them spent editing photos does not compel a finding, as a matter of law, that [plaintiff and comparator] do not perform equal work,” but finding that their work was different than reporters in the same newsroom). 131 Whitlock v. Williams Lea, Inc. , No. 16-CV-6347, 2019 WL 1382267, at *5 (N.D. Ill. Mar. 27, 2019) (finding that although Senior Account Managers shared common general duties of supervising direct and indirect reports for one or multiple clients across various service lines and ensuring delivery of the contract services, plaintiff’s comparator’s work was not equal because he supervised many more clients and employees: “[p]erhaps the differences that [employer] identified are somehow insignificant – like maybe it did not take much effort to supervise employees, so the difference in the number of supervisees was insignificant to the job – but [plaintiff] has not provided any such evidence”). 132 See, e.g., Kairam v. West Side GI, LLC , 793 F. App’x 23, 26 (2d Cir. 2019) (upholding district court’s dismissal of EPA claim brought by physician plaintiff because “[t]he [complaint] alleges details about [plaintiff’s] position, including, among other things, that she analyzed patterns to see whether particular doctors were experiencing problems with particular insurers,” and “analyzed denials to improve billing procedures,” but with respect to her comparator, she merely alleged that he was paid to run a practice that “involved administrative duties at [the same employer]”). 133 See 29 U.S.C. § 216(b) (providing a private right of action “by any one or more employees for and on behalf of himself or themselves and other employees similarly situated”). 134 Id. 135 See Knox v. John Varvatos Enters., Inc. , 282 F. Supp. 3d 644, 652-53 (S.D.N.Y. 2017) (citing Hoffmann–La Roche Inc. v. Sperling , 493 U.S. 165 (1989); Braunstein v. E. Photographic Labs., Inc. , 600 F.2d 335, 336 (2d Cir. 1978); Damassia v. Duane Reade, Inc ., 2006 WL 2853971, at *2 (S.D.N.Y. Oct. 5, 2006)). 136 Id. at 654.