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Monday, October 11, 2010

Paycheck Fairness Bill on Senate Lame Duck Calendar

By Tommy Eden, Attorney

The Paycheck Fairness Act (S. 3772) that would amend the Fair Labor Standards Act (FLSA) to increase remedies for violations of the Equal Pay Act and make it more difficult to defend against such claims was reintroduced in September by Senate Majority Leader Harry Reid. The House has already passed its companion bill (H.R. 12) on Jan 9, 2009. The White House has urged the bill’s passage calling it "a common-sense bill that will help ensure that men and women who do equal work receive the equal pay that they and their families deserve.”

The Paycheck Fairness Act would do the following:

• Damages under the EPA will be expanded to include potentially unlimited compensatory and punitive awards.

• Employers will be prevented from relying on the “factor other than sex” affirmative defense in wage discrimination cases. An employer would be required to show that any wage discrepancy is caused by a bona fide factor other than sex, such as education, training and experience, and that this factor is job-related and consistent with business necessity. Rebuttal of a claim would require showing that an alternative employment practice exists that could achieve the same business purpose.

• Anti-retaliation provisions would protect employees who have made a complaint, filed a charge, testified or otherwise assisted in an investigation or proceeding related to an unfair wage complaint. It would also protect employees who have inquired about or discussed theirs or their coworkers’ wages.

• The requirement that employees work in the same establishment for wage comparison purposes would be eliminated. An employer’s establishment would include workplaces located in the same county or similar political subdivision of a state.

• Reinstate the Equal Opportunity Survey administered by the Office of Federal Contract Compliance Programs (OFCCP) which was abolished during the Bush Administration. This will allow the agency to gather certain employment information from federal contractors and subcontractors related to their Affirmative Action Programs, personnel activity and compensation.

The reintroduced Paycheck Fairness Act has been placed on the Senate calendar for November 17, 2010 during the lame duck congress. Supporters appear to be close to the filibuster-proof 60 votes needed to advance the bill in the Senate.

Common Sense Counsel: call your Senators and let them know your views.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at