Report of the Equal Pay Act Subcommittee of the ABA Section of Labor and Employment Law Federal Labor Standards Legislation Committee

Thu Feb 20 15:24:38 EST 2003
By Dr. Jon Wainwright with the Equal Pay Act Subcommittee of the ABA Section of Labor and Employment Law Federal Labor Standards Legislation Committee

The equal pay provisions of the Fair Labor Standards Act ("Equal Pay Act" or "EPA") require an employer to provide equal pay for men and women who perform equal work within an "establishment," unless the difference is based on a factor other than sex. Because the EPA is part of the Fair Labor Standards Act ("FLSA"), the FLSA procedural rules apply to EPA claims. NERA Senior Vice President Dr. Jon Wainwright, a member of the EPA Subcommittee of the ABA Section of Labor and Employment Law Federal Labor Standards Legislation Committee, assisted the Subcommittee with a study of all EPA cases from 1 January 2002 through 31 December 2002. This report summarizes the 72 relevant cases in that time period and their implications to EPA case law.

The Subcommittee outlines the requirements a plaintiff must meet in order to establish a prima facie case, namely: (1) the employer pays different wages to employees of the opposite sex; (2) the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and (3) the jobs are performed under similar working conditions. If a prima facie case is established, the burden shifts to the employer to prove that the wage differential is justified by a preponderance of the evidence under one of four affirmative defenses: (1) a seniority system; (2) a merit system; (3) a system pegging earnings to quality or quantity of production; or (4) any factor other than sex.

This study was presented at the Federal Labor Standards Legislation Mid-Winter Committee Meeting at the Marriott CasaMagna Hotel in Puerto Vallarta, Mexico, February 19-21, 2003.