How to Identify Unlawful Pay Disparities
Apr 12, 2021 | Written by: | Share
The federal Equal Pay Act of 1963 requires equal pay for equivalent work. Employers cannot pay different wages or benefits on the basis of gender for “equal work on jobs the performance of which requires equal skill, effort and responsibility and which are performed under similar working conditions”. Proving that two people are performing “equal” or comparable work, however, can be a challenging task, since people tend to disagree on whether particular job duties require comparable skills, effort and responsibilities.
To determine if you may be the victim of an Equal Pay Act violation, or to determine if your organization’s policies may violate the Equal Pay Act, asking the following questions may provide you with an answer:
- Are women and men differently compensated for doing similar or the same work, discounting variations based on credentials and/or experience?
- Does the wage classification system at your place of employment differentiate between “male” and “female” workers or tasks?
- Does your place of employment use a collective bargaining agreement to justify unequal rates?
- Does your place of employment provide different benefits based upon an employee’s gender?
- Does your place of employment’s retirement plan differentiate based on gender in optional retirement ages?
If you answered “yes” to any of the questions above, then you may have a valid claim under the Equal Pay Act.
In addition, the New Jersey Equal Pay Act, also known as the Diane B. Allen Equal Pay Act, went into effect in July 2018. Prior to its enactment, equal pay was governed generally by Title VII and the NJ Law Against Discrimination (NJLAD), as well as the federal Equal Pay Act of 1963. The aim of those laws was to abolish pay disparity only on the basis of gender. The New Jersey Equal Pay Act amended the NJLAD by broadening the prohibition against pay discrimination because of or based on an employee’s inclusion in any protected class. Specifically, it is now unlawful for “an employer to pay any of its employees who is a member of a protected class at a rate of compensation, including benefits, which is less than the rate paid by the employer to employees who are not members of the protected class for substantially similar work, when viewed as a composite of skill, effort and responsibility.” N.J.S.A. 10:5-12(t).
Accordingly, if you are a member of a protected class and can answer “yes” to any of the questions above based on race, gender, age, ethnicity, religion, etc., your employer may have a very hard time defending an action brought against it under the New Jersey Equal Pay Act.
If you are an employer and are concerned that your organization may be violating the New Jersey Equal Pay Act, it may be time to take a proactive step to hire an attorney to conduct a pay equity audit.
Sharon M. Flynn is an associate with Gebhardt & Kiefer, PC, and practices primarily in the areas of general litigation, employment law, and insurance defense.
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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.