September 21, 2021

Volume XI, Number 264


September 20, 2021

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OFCCP Tagged for Pay Data Collection Role in Newly Proposed Paycheck Fairness Act

As yet another confirmation that pay equity will be a priority for the Biden-Harris administration, the proposed Paycheck Fairness Act has been reintroduced in the U.S. House of Representatives as H.R. 7.  The proposed legislation has a long history but has never been given a vote in the Senate – it last passed in the House of Representatives in 2019.

In summary, the current version of the Act would address the gender wage gap by amending the equal pay provisions of the Fair Labor Standards Act of 1938 to:

  1. restrict the bases on which pay disparities may be legally justified and exclude “any factor other than sex”;

  2. enhance nonretaliation prohibitions,

  3. make it unlawful to require an employee to sign a contract or waiver prohibiting the employee from disclosing information about the employee’s wages, and

  4. increase civil penalties for violations of equal pay provisions.

Notably, this version of the Act would require OFCCP to:

implement a survey to collect compensation data and other employment-related data (including hiring, termination, and promotion data) and designate not less than half of all nonconstruction contractor establishments each year to prepare and file such survey, and shall review and utilize the responses to such survey to identify contractor establishments for further evaluation and for other enforcement purposes as appropriate.

It seems this new OFCCP obligation could supplement OFCCP plans to require contractors to annually certify their AAP compliance, and seeks to fill the gap while EEOC studies the viability of collecting pay data for all employers through the EEO-1 reporting mechanism. For those of you who recall, this has remnants of the retired EO survey of years past.

There will likely be changes to the bill as it passes through the legislative process.  As always, we will keep you updated with further developments.

Jackson Lewis P.C. © 2021National Law Review, Volume XI, Number 33

About this Author

Laura Mitchell, Jackson Lewis, Management Representation lawyer, Contractual Drafting Attorney

Laura A. Mitchell is a Principal in the Denver, Colorado, office of Jackson Lewis P.C. She represents management exclusively in all areas of employment law, focusing on affirmative action and government contractor compliance.

Ms. Mitchell is a Principal in the firm’s Affirmative Action and OFCCP Defense practice group, representing government and non-government contractors in Office of Federal Contract Compliance Programs (OFCCP) matters, preparing for and defending OFCCP audits, and counseling employers on issues stemming...

F. Christopher Chrisbens, Jackson Lewis, litigation attorney, employment law, intellectual property legal counsel, OFCCP compliance lawyer
Of Counsel

F. Christopher Chrisbens is Of Counsel in the Denver, Colorado, office of Jackson Lewis P.C. Over his years as a litigation attorney, manager, trainer and workplace investigator, Mr. Chrisbens has developed a diverse array of employment law skills serving employers in a variety of legal and corporate settings.

Mr. Chrisbens began his career as a litigator and appellate practitioner in Los Angeles, California, and later returned to Boulder, Colorado where he was partner in a Boulder firm practicing in the areas of commercial...