4.8 The Federal Equal Pay Act (epa)
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4.8 THE FEDERAL EQUAL PAY ACT (EPA)
4.801 Sex-Based Wage Disparities. Employers with employees subject to the FLSA may not discriminate on the basis of sex by paying lower compensation for equal work "within any establishment in which such employees are employed." 175 The term "establishment" is not expressly defined
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in the FLSA but is interpreted to refer to a distinct physical place of business rather than to an entire business or enterprise. 176
4.802 Employers and Employees Covered. The Equal Pay Act (EPA) covers employees engaged in interstate commerce or in the production of goods for interstate commerce or who are employed in an enterprise engaged in interstate commerce or in the production of goods for interstate commerce, as defined in section 3(b) of the FLSA. 177
The EPA covers exempt as well as nonexempt employees and, therefore, has broader coverage than the overtime provisions of the FLSA. It also applies to all state and local government employees, unless specifically exempt under section 3(e)(2)(C) of the FLSA, and to most federal government employees, as described in sections 3(e)(2)(A) and (B) of the FLSA. 178 It covers both male and female employees. 179
While the EPA prohibits pay differentials on the basis of sex, it does provide exceptions for pay differentials based on seniority or merit systems or a system measuring earnings by quantity or quality of production. Title VII also prohibits sex-based wage discrimination, and a violation of the EPA may, although not necessarily, also be a violation of title VII. 180
4.803 Definition of Equal Work.
A. In General. The employee has the burden of proving that he or she is being paid lower wages for work requiring an equal degree of skill, effort, and responsibility, and under similar working conditions, as an employee of the opposite sex. 181 The plaintiff must identify a particular "comparator" of the opposite sex and may not use a hypothetical or "composite" comparator. 182
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B. Substantially Equal Test.
1. In General. The term "equal work" means that the work must be substantially equal. 183 The jobs need not be identical. 184
The jobs at issue must share a "common core" of tasks in order to be "substantially equal." 185 If there is a "common core" of tasks, then the tasks that are unique to each position must be compared to determine if they make the work substantially different. 186
2. Additional Duties. In evaluating the effect of additional duties on the issue of work equality, the employer must consider whether the lesser-paid employee also performs extra duties of equal skill, effort, and responsibility; whether qualified female employees are given an opportunity to do the extra work; whether the extra duties in fact exist; whether the extra duties require more than a minimal amount of time and are of more than peripheral importance; and whether third persons who do the extra task as their primary job are paid less than the male employees in question. 187
3. Different Duties. The fact that duties may overlap does not establish equal work where job responsibilities, titles, and experience differ. 188
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4.804 Components of Equal Work.
A. In General. The requirements of equal skill, effort, responsibility, and similar working conditions cannot be aggregated to establish job equality. 189
B. Equal Skill. The skill needed to perform a job includes experience, training, education, and ability. 190
C. Equal Effort. "Effort" refers to the physical or mental exertion necessary to perform a job. 191
D. Equal Responsibility. Responsibility means the degree of accountability required in the performance of the job. 192
E. Performed Under Similar Working Conditions. The working conditions need not be identical but must be similar. The term "similar working conditions" includes "surroundings" and "hazards." 193 The intensity and frequency of the elements regularly encountered by a worker are considered "surroundings." 194 The physical hazards regularly encountered by an employee, their frequency, and the severity of possible injury are considered "hazards." 195
4.805 Retaliation. The EPA prohibits an employer from taking adverse action against an employee in retaliation for filing a complaint of discrimination in violation of the EPA. 196
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4.806 Employers' Defenses.
A. Statutory Defenses. There are four affirmative defenses enumerated in the Equal Pay Act. 197 These exceptions are narrowly construed against the employer. 198
1. Seniority System. A seniority system must be uniformly applied and observed. 199 Although a seniority system may be informal rather than written, it must be an established system that is known to the affected employees. 200
2. Merit System. A valid merit system need not be written. 201 Whether written or not, a merit system must be "an organized and structured procedure" that allows employees to be "evaluated systematically according to predetermined criteria." 202 An unwritten merit system must meet two additional requirements: the employees must be aware of it, and it must not be based on sex. 203 While subjectivity is permissible, the employer should be able to articulate demonstrable reasons for the decision that are unrelated to sex. 204
3. Production Incentive System. The production incentive system defense applies to wage payments directly tied to the amount or quality of production. 205
4. Any Factor Other Than Sex. The affirmative defense of "any factor other than sex" should not be strictly limited, as it is a broad,
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catch-all exception to the EPA. 206 While some level of subjectivity is inevitable in an employment...
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