Paycheck Fairness Act

Per Steve Kean's request, I am forwarding (through office mail) to each of
you some information that I have on comparable worth which is what the
proposed Paycheck Fairness Act introduced in both the Senate (S.77) and the
House (H.R. 781) is all about. I have also noticed another act introduced in
the Senate (S.8) entitled "Enhancing Economic Security for America's Working
Families Act" that has buried in it the same wording as the Paycheck Fairness
Act. I don't know how this happens--I'm sure it is intended! S.8 also
requests a minimum wage increase and something on family care but it didn't
show when I printed the document. S.77, H.R. 781 and S.8 can be located at
http://thomas.loc.gov/. Enter the bill number without the periods (i.e. "S7"
, "HR781", "S8") and click Search.

To the best of my knowledge and drawing from all I have read, the Paycheck
Fairness Act is responding to the supposed wage gap between the sexes. There
has been much press over the last few years about the huge gap that exists in
pay between men and women. The government through the EEOC and the OFCCP use
this gap to further justify why they exist - to stamp out discrimination
These agencies would like for us to believe that the gap is the result of
discrimination and ignore other factors such as hours of work, experience and
tenure, years and type of education, interrupted careers (especially for
women during their childbearing years), and industry and occupation--all of
which differ considerably between men and women. The government tells us
that women earn on an average 25 percent less than their male counterparts
but I have read research where once all the factors are looked at there is
only about 6 percent gap that can not be explained. I will send you the
article supporting this.

The are two sections that concern me the most in S.77 and H.R. 781--Sec.
8-Collection of Pay information by the Equal Employment Opportunity
Commission-- which states "Section 709 of the Civil Rights Act of 1964 (43
U.S.C. 2000e-8) is amended by adding at the end the following: (f) (1) Not
later than 18 months after the date of enactment of this subsection, the
Commission shall-- (A) complete a survey of the data that is currently
available to the Federal Government relating to employee pay information for
use in the enforcement of Federal laws prohibiting pay discrimination and,in
consultation with other relevant Federal agencies, identify additional data
collections that will enhance the enforcement of such laws; and (B) based on
the results of the survey and consultations under subparagraph (A), make
rules to provide for the collection of pay information from employers as
described by the sex, race, and national origin of employees.

I'm sure the "other relevant Federal Agencies" will include the OFCCP who we
know have been using the comparable worth methodology (the "Dubray" method)
to force Federal Contractors into making large salary adjustments for women
and minorities in their Glass Ceiling Audits (even though there is no legal
basis to analyze compensation this way). Many companies have given in to
their strong arm tactics and paid obscene amounts in back pay and equity pay
just to get the OFCCP to go away. We are one of the few companies that have
refused to agree with them which has resulted in our 1997 Glass Ceiling Audit
being turned over to the Department of Labor's Solicitors Office.

Also, in Sec. 3-Enhanced Enforcement of Equal Pay Requirements, the Secretary
of Labor can establish voluntary guidelines to rate different jobs based on
criteria such as educational requirements, skill requirements, independence,
working conditions, and responsibility. Market considerations are not
identified as criteria that the Secretary may consider or include. Moreover,
the Secretary would have the authority to issue regulations to implement the
guidelines. Employers would be encouraged to compare the wages paid to
similarly rated jobs and identify pay disparities between those occupations
dominated by women and those dominated by men. This would require Enron to
implement a compensation system to accurately monitor the "value" we place on
different jobs. This would be an administrative nightmare.

The Society for Human Resources Management (SHRM) has published some
"Talking Points" about the Paycheck Fairness Act as below.

SHRM strongly supports the Equal Pay Act and Title VII of the Civil Rights
Act of 1964 (Title VII) that prohibit gender-based wage discrimination.
However, SHRM opposes S. 77 and H.R. 781, the Paycheck Fairness Act, which
would expand remedies under the Equal Pay Act of 1963 to include unlimited
punitive and compensatory damages.

The Paycheck Fairness Act is designed to advance the concept of comparable
worth through DOL rulemaking. Comparable worth-related legislation advances
the notion of the government, rather than the private market, ultimately
determining wages.

S. 77 and H.R. 781 would lead to unnecessary litigation and backlogs in the
courts. Congress rejected the theory of comparable worth during the Equal
Pay Act debate. Moreover, federal courts have rejected comparable worth as a
legal theory under the Equal Pay Act.

Title VII of the Civil Rights Act already provides significant remedies for
sex discrimination in employment, including any claim that equal pay is being
denied based on gender. These remedies include punitive and compensatory
damages (plus lost back pay and jury trials) capped at between $50,000
through $300,000, depending on the size of the employer.

Congress squarely rejected the concept of unlimited damages for employment
discrimination.

Compensation programs should be designed to ensure fair treatment of all
employees, but should be determined by the market and employer needs, not by
the dictates of government or special interest groups.

Because of the complexity of administering, the difficulty of enforcing and
the inefficiency of regulating private-sector compensation practices, SHRM
strongly opposes any efforts to legislate or regulate comparable worth or
"pay equity."

SHRM encourages organizations of all sizes to regularly perform compensation
or job evaluation audits to ensure such systems do not discriminate based on
gender.

Comparable worth requirements set by the government would force employers to
increase pay for many different jobs and occupations while freezing pay for
others, irrespective of business needs and labor market conditions.

If I have missed anything or you need further information or clarification,
please do not hesitate to contact me. I will keep a watch out in the HR
publications I read and forward on any new information. I am interested in
what kind of support this proposed law is getting and if it looks like it
will make it this go around or not! As an HR practitioner I have utilized
SHRM's Government Affairs web-site to email Sen. Hutchison and Sen. Gramm
urging them to oppose the proposed legislation. If you want a copy of this
let me know.

Thanks!

Felecia Acevedo
ext. 3-9815