In recent years, many states have passed equal pay laws.
At the federal level, well…
For U.S. Representative Rosa DeLauro (D-CT-03), last week marked the fourteenth time (according to Wikipedia) that she had introduced the Paycheck Fairness Act. The measure is designed to combat the wage disparity woman face compared to men (women still earn, on average, just 77 cents for every dollar paid to men).
What is the PFA?
When Congress amended the Fair Labor Standard Act in 1963, it included equal-pay provisions. These equal-pay provisions make it unlawful for an employer to pay men and women doing the same or similar work differently — unless the employer can demonstrate that it based the pay differential on “any other factor other than sex.”
The PFA would strike “any other factor other than sex” and insert “a bona fide factor other than sex, such as education, training, or experience.”
Additionally, the PFA enhances nonretaliation prohibitions and makes it unlawful to require an employee to sign a contract or waiver prohibiting them from disclosing information about their wages. The bill also increases civil penalties for violations of equal pay provisions.
The bill directs the Department of Labor to:
- Establish and carry out a grant program for negotiation skills training for girls and women.
- Conduct studies to eliminate pay disparities between men and women.
- Make available information on wage discrimination to assist the public in understanding and addressing such discrimination.
The bill also establishes the National Award for Pay Equity in the Workplace for an employer who has made a substantial effort to eliminate pay disparities between men and women.
Finally, the bill requires the EEOC to issue regulations for collecting from employers compensation and other employment data according to the sex, race, and national origin of employees to enforce laws prohibiting pay discrimination.
You can find a fact sheet from Rep. DeLauro on the legislation here.
What’s the problem with the PFA?
President Biden supports the PFA. In 2021, the House passed last week by a 217-210 vote on party lines, with just one Republican voting in favor of the measure. But, it never progressed in the Senate.
This time around, the challenge is even greater. Here are three reasons why:
- The Republicans control the House. With 222 Republicans to 213 Democrats, PFA seems unlikely to have enough support to make it out of the House.
- The Senate cloture rule. Even if the House were to approve the measure, it must get through the Senate too. There are 48 Democrats and three Independents. However, Senators Fetterman and Feinstein are on medical leave. So, that leaves a 49-49 balance. Notwithstanding, 60 Senators must agree to end the debate (e.g., filibuster) on the PFA and move to a vote on the actual legislation. The PFA does not have Republican support. Good luck finding 11 for cloture.
- Business groups dislike the PFA. In 2021, the Chamber wrote to the House of Representatives to explain why it opposed the PFA. Here are a few reasons:
- “The PFA imposes a new multi-factor test that includes a vague ‘business necessity’ test that would effectively eliminate the ability of an employer to make compensation decisions based on [experience, education, location, and shift work].
- “[The PFA] would also for the first time allow for compensatory and punitive damages, [which Title VII already permits].”
- “This bill would also modify existing rules concerning collective actions, making it easier for plaintiffs’ attorneys to mount class action suits by reducing the criteria necessary for employees to join a class.”
What will happen to the PFA?
The same thing that happened the last 13 times that Congress introduced it. It won’t hit the President’s desk.