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VOL. 132 | NO. 88 | Wednesday, May 3, 2017




Avoid Being a Labor Department Target

BY COURTNEY LEYES

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Recently, The Daily News ran a story regarding the U.S. Department of Labor’s current investigation of Google. Specifically, the government allegedly discovered “systemic compensation disputes” across Google’s workforce. The dispute in this case, as with most pay equity cases, is what constitutes “comparable work.”

Google has taken a more stringent approach, contending that only those employees who have the same job titles should be compared for purposes of the government’s investigation. On the other hand, the government has taken a broader approach, contending that job titles are not necessarily indicative and actual job responsibilities and duties should be examined for purposes of comparison.

Before we get into what you can do to avoid being the next target of the federal government (and the subject of an expensive investigation), you must first understand the basic laws regarding pay discrimination. In addition to Tennessee’s Equal Pay law, there are two federal statutes that mandate Tennessee employers to pay women equally – the famous Equal Pay Act, which Tennessee’s statute mirrors, and Title VII, which prohibits employment discrimination on the basis of sex/gender.

Tennessee Code Annotated Section 50-2-202(a) states: “No employer shall discriminate between employees in the same establishment on the basis of sex by paying any employee salary or wage rates less than the rates the employer pays to any employee of the opposite sex for comparable work on jobs the performance of which requires comparable skill, effort and responsibility, and that are performed under similar working conditions . . . .”

So, what can you do to avoid a situation such as this? You can perform a self-audit, because it’s better with the devil you know, right?

First, examine your written policies and perhaps consider adding some provisions regarding pay equity. Affirmatively state the company’s commitment to pay equity, and reiterate that an employee with questions or concerns about his/her pay should go to HR.

Second, consider the scope of your audit. If you have multiple facilities, look at each facility in a vacuum. The statutory language for both the EPA and Tennessee’s state law states you cannot discriminate between employees “in the same establishment.” The Equal Employment Opportunity Commission and Department of Labor have interpreted this literally, meaning that a female attorney working in her law firm’s Memphis office could not compare herself to a male attorney working in the firm’s New Orleans office.

Third, when examining the pay records, do not be wedded to job titles. As we know that job titles alone cannot determine whether an employee is exempt from the overtime provisions of the Fair Labor Standards Act, the federal government will not be amused with you giving various creative titles for the same job in an effort to skirt your obligations to pay your female employees equally to their male counterparts for equal work.

Finally, if you discover a pay disparity and there is not a legal justification for it, consult your employment attorney.

Courtney Leyes, an associate in Fisher Phillips’ Memphis and Gulfport offices, represents employers throughout Mississippi and the greater Memphis area.

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