Developments in Equal Pay Litigation

6 | Developments in Equal Pay Litigation © 2021 Seyfarth Shaw LLP Then, on September 12, 2019, the EEOC issued a Paperwork Reduction Act Notice, wherein it stated that it was not planning to continue using the EEO-1 Report to collect Component 2 data information . 25 The EEOC’s decision to stop collecting Component 2 data settled the matter only briefly. In 2020, states and localities began to enact pay transparency laws that required employers to submit data reporting that was very similar to the EEOC’s rescinded Component 2 data reporting requirements. For example, in 2020, California passed its Pay Data Reporting Law. Under the new law, on or before March 31, 2021, and each year thereafter, private employers with 100 or more employees, are required to submit a pay data report to the California Department of Fair Employment and Housing that includes the number of employees by race, ethnicity, and sex in ten categories, which track the federal EEO-1 categories. 26 The pay data report must include previous year W-2 earnings and hours worked for all employees and must be submitted in a searchable and sortable format. 27 Other states have passed different pay transparency laws, some of which address different aspects of pay transparency. For example, a new Colorado law requires employers to notify employees of “promotional opportunities.” Promotional opportunities are job vacancies that are superior to the job held by at least one employee at the same company. The law mandates that such postings must include a list of information about the position, including detailed compensation and benefits information . 28 The Colorado law also requires employers to “keep records of job descriptions and wage rate history for each employee for the duration of the employment plus two years after the end of employment in order to determine if there is a pattern of wage discrepancy.” 29 Violations of the job posting requirements are subject to state agency enforcement or a private right of action. 30 In the latter case, the law provides courts the option to provide private litigants with a rebuttable presumption that records not kept in violation of the law’s recordkeeping requirements would have contained information favorable to the employee's claim and an instruction to the jury that failure to keep records can be considered evidence that the violation was not made in good faith. 31 Other states have enacted similar types of laws, including Maryland and Washington, and some cities, including Cincinnati and Toledo, Ohio. The state of equal pay legislation in the fifty states is a complex and rapidly developing issue. For a complete and up-to-date analysis of the equal pay statutes in each state, please see Seyfarth’s companion publication, the “50 State Pay Equity Desktop Reference.” 32 25 Paperwork Reduction Act Notice, 84 Fed. Reg. 48138 (Sept. 12, 2019); see also Press Release, U.S. Equal Employment Opportunity Commission, EEOC Holds Public Hearing on Proposed EEO-1 Report Amendments (Nov. 4, 2019), https://www.eeoc.gov/eeoc/newsroom/release/11-4-19a.cfm; Press Release, U.S. Equal Employment Opportunity Commission, EEOC Holds Public Hearing on Proposed EEO-1 Report Amendments (Nov. 4, 2019), available at https://www.eeoc.gov/eeoc/newsroom/release/11-4-19a.cfm. 26 Cal. Gov. Code § 12999. The law requires that a “private employer that has 100 or more employees and who is required to file an annual Employer Information Report (EEO-1) pursuant to federal law shall submit a pay data report to the department covering the prior calendar year . . . .” The categories of jobs required to be included in the report on are: executive or senior level officials and managers, first or mid-level officials and managers, professionals, technicians, sales workers, administrative support workers, craft workers, operatives, laborers and helpers, service workers.” Id. § 12999(b)(1)(A-J). 27 Id. , § 12999(b)(4). 28 C.R.S.A. § 8-5-201. The law requires employers to “make reasonable efforts to announce, post, or otherwise make known all opportunities for promotion to all current employees on the same calendar day and prior to making a promotion decision.” Id. § 8-5- 201(1). The law also requires employers to “disclose in each posting for each job opening the hourly or salary compensation, or a range of the hourly or salary compensation, and a general description of all of the benefits and other compensation to be offered to the hired applicant.” Id. § 8-5-201(2). 29 Id. , § 8-5-202. 30 Id. , § 8-5-203. 31 Id. , § 8-5-203(5). The law states that “the court may order appropriate relief, including a rebuttable presumption that records not kept by the employer in violation of section 8-5-202 contained information favorable to the employee’s claim and an instruction to the jury that failure to keep records can be considered evidence that the violation was not made in good faith.” Id. 32 See Seyfarth Shaw Pay Equity Group, 50 State Pay Equity Desktop Reference: What Employers Need To Know About Pay Equity Laws, 2019 Q4 Edition , available at https://www.seyfarth.com/images/content/5/4/v2/54844/50-State-Pay-Equity-Desktop- Reference-RPT-Q4-Digital-M4.pdf.