approach to job postings . There are pros and cons to each approach, but you will want to work with your legal counsel to understand your options. 5. Conduct a Privileged Audit In addition to tracking and complying with pay transparency laws, you should consider the bigger picture when it comes to pay equity in general: • The federal Equal Pay Act (EPA) requires you to provide men and women in your workplace with equal pay for equal work. Under federal law, disparities in pay among employees with substantially equal job duties are only legally permissible if based on a factor other than sex, such as seniority, merit, qualifications, skills, education, or level of responsibility. • Moreover, many state laws go well beyond federal law in terms of scope and lawful justifications for pay differentials. • Nearly every state has its own law that also prohibits gender-based wage discrimination . • Many states – including California, New York, New Jersey, and Oregon – have also expanded their pay equity laws to go beyond gender and extend to other legally protected categories, including race, ethnicity, age, and religion . One of the best ways to determine whether your company has any significant pay disparities is to conduct a legally privileged pay audit. Through an audit, you will be able to identify potential pay disparities among employees performing comparable work, determine whether there are lawful explanations for those disparities, and take steps to correct them as appropriate. An audit also provides an opportunity to identify and correct weaknesses in the organization’s systems, so you can protect against future pay equity claims. Work with legal counsel. In some locations, you may even be able to avail yourself of a legal safe harbor if you can prove you undertook a valid pay equity audit. We recommend that any such audit be conducted with advice from an attorney, preferably someone who understands the nuances of pay equity laws, so that it is cloaked with the attorney-client privilege and can remain confidential. By conducting a privileged audit, your organization will be better positioned to ensure compliance with federal and state equal pay laws while minimizing the risk for litigation based on equal pay. Conclusion We will continue to monitor developments throughout the country on pay equity. Make sure you are subscribed to Fisher Phillips’ Insight System to get the most up-to-date information. If you have questions, please contact your Fisher Phillips attorney, the authors of this Insight, or any member of our Pay Equity and Transparency Practice Group.
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