Business Law 101

By Albert L. Kelley

THE EQUAL PAY ACT

 

Although there have been great strides through the years to increase the number of women in the workforce, to improve their salaries, and to allow them to work in areas previously restricted to men, progress is often slow.

 

Women as a whole make far less than men in similar positions. In 2010, for full time year round employees, women’s median earnings were 81% of men’s. For full–time wage and salary workers, women’s earnings were 74.4% of men’s. When race is considered, this disparity still exists, though not to the same extent. Black women make 94% of black men and Hispanic women earn 91% of Hispanic men.  In other words, while black men as a whole make less than white men; black women make less than black men (under the same study, they found that Hispanic men made less than black men). There are numerous theories for this disparity, and there is insufficient room here to discuss them.

 

In 1963, to address the concern about this difference in salaries, Congress passed an amendment to the Fair Labor Standards Act called the Equal Pay Act. The EPA simply states that no employer shall discriminate in the payment of wages within a facility on the basis of sex for equal work. Unfortunately, this is easier said than done. A major question arises as to what is equal work.

In Montana, at the Yellowstone County Jail, this issue arose comparing the salaries of female jailers (called matrons) to the mail jailers (called jailers). The duties of the matrons resembled the duties of the jailers. Both had responsibility for booking prisoners, showering and dressing them, and placing them in appropriate sections of the jail depending on the sex of the offender. Because 95% of the prisoners were male and only 5% were women, the matron had more bookkeeping duties than the jailers. Yet, the jailers were paid $125 more per month than the matrons. The County argued that the discrepancy reflected the hazardous nature of the jailers work with male prisoners and the state’s interest in protecting women. The Court, however, found that the working conditions were substantially equal and that the wage difference was based on sex, thus violating the Equal Pay Act.

 

Through court decisions, there are essentially five guiding principles to help us determine the equal work standard:

 

  1. The equal work standard only requires that the jobs be substantially equal; not identical.
  2. When there is a wage difference between men and women, the burden is on the employer to show there is a reason other than sex.
  3. Where some, but not all, of the members of one sex perform extra duties, those extra duties do not justify giving all members of that sex extra pay.
  4. Women must be offered the opportunity to do the same extra jobs as men.
  5. Job titles and job descriptions are immaterial in showing the work is unequal. It is the actual work performed that matters.

One escape that the EPA gives the employer is the catch-all exception. It states that a pay differential may be given for any reason other than sex. Examples are job assignments to lower-related jobs while retaining the previous salary, completion of a bona-fide training program, and part-time work.

 

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University. He is also the author of “Basics of Business Law” and “Basics of Florida’s Small Claims Court” (Absolutely Amazing e-Books). This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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