Wednesday, September 22, 2010

Halloween? It's not even October

Rumors are flying that the Paycheck Fairness Act will be taken up by the Senate in the very near future. The Obama Administration made it no secret that the Act is at the top of its agenda. This is concerning, given the Administration's desire to make a strong showing as mid-term elections approach. Should you contact your Senator concerning his/her vote on the PFA? Consider:
  • Two store managers are hired at the same time; one is male, one is female. The jobs are offered at $40,000. The male demands  $45,000 while the female takes the offer as presented.
    • Current law: The pay discrepancy can be defended by demonstrating that the difference is based upon something other than gender. In this case, it was a demand of one of the candidates.
    • Proposed PFA: If the company acquiesces to the male's demands but doesn't give the female the same increase--even though she didn't demand/negotiate it--the company could only defend a PFA challenge by the female if it demonstrates that no discrimination is present (which could also necessitate a showing that no pay discrimination was present at the male's prior workplace), that paying the increased salary is job-related, and that the increased salary is consistent with "business necessity."
It remains to be seen whether the Administration can carry enough momentum into the legislature to have this Act passed. Further, it's possible that any version which does clear both bodies differs from what is presently proposed. Regardless, we are sticking with our mantra--be wary of any Act which includes "fairness," "equal," or "fair" in it--because it usually isn't for employers.

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