Unsuccessful Cloture Vote for Dems on Paycheck Fairness Act

Democrats attempted to overcome a Republican filibuster on the Paycheck Fairness Act by calling for a cloture vote today. Democrats were two votes short of the required 60 votes to achieve cloture (which would place a time limit on debate about the Act). The roll call vote showed that 58 Democrats voted in favor of cloture, while 40 Republicans and 1 Democrat (Nelson, of Nebraska) voted against cloture. One Republican, Sen. Lisa Murkowski, was not present for the vote as she continues to await the poll results in Alaska from her mid-term election challenge by Joe Miller.

With Republicans gaining 6 Senate seats in the November 2010 elections, the likelihood of seeing the Act up for vote again in its present form is unlikely. Democrats may attempt some concessions, much like what was attempted unsuccessfully to gain passage of the Employee Free Choice Act, to get this matter for vote prior to January, 2011. However, with the inability to overcome a Republican filibuster and elections completed for the next two years, little incentive exists for Republicans to cooperate in bringing this matter to a vote.

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.