Senate Hearing Previews Contentious Vote on Paycheck Fairness Act

By Bill Leonard Apr 3, 2014
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Less than a day after a hearing by the Senate Health Education Labor and Pensions (HELP) Committee on the Paycheck Fairness Act, Majority Leader Harry Reid, D-Nev., announced that the full Senate would vote on the legislation on April 8, 2014. The day has been dubbed Equal Pay Day by the National Committee on Pay Equity.

“We’re going to have a vote on paycheck fairness. And it’s undetermined at this stage whether we can have a vote on minimum wage next week [April 7-11]. It’s according to how much Republicans stall us,” Reid told reporters.

Senate Democrats along with President Barack Obama are pushing for approval of the Paycheck Fairness Act (S. 84) and other legislation that would increase the federal minimum wage to $10.10 per hour. Passing the two measures is a cornerstone of the Democratic National Committee’s 2014 political agenda, which party officials are calling “A Fair Shot for Everyone.”

During the April 1 HELP Committee hearing on the Paycheck Fairness Act, Sen. Lamar Alexander, R-Tenn., accused Senate Democrats of using a vote on the bill as a political ploy to gain advantage during the upcoming congressional elections.

“White House officials have announced that there will be no compromise on this bill,” Alexander said. “So, if they aren’t willing to work with Republicans and address the concerns we have with the legislation, then the only reason I see for holding a vote is an attempt to make some political gains in this mid-term election year.”

Alexander questioned the need for the hearing and said that the HELP committee would be better served discussing ways to increase job opportunities and improve the workplace flexibility for families’ primary caregivers.

“I think improving workplace flexibility would better serve working mothers then discussing a bill that would ultimately put more administrative burdens and regulations on employers,” Alexander said.

Sen. Barbara Mikulski, D-Md., responded to Alexander that she would be happy to discuss workplace flexibility but added that the Paycheck Fairness Act was needed to help women level the playing field with their male counterparts.

“We’re here today for a very simple reason: to demand equal pay for equal work. Women are the backbone of our economy. They make up almost half of the workforce, and 40 percent of them are the sole breadwinners in their families,” Miksulski said in her opening remarks. “It’s not just for our pocketbooks—it’s about the family checkbooks, and getting it right in the law books. It’s time to end pay inequity and time for Congress to address this issue.”

Mikulski introduced S. 84 in 2013, which is similar to bills that stalled in 2012 and 2009. Employers and business groups have opposed passage of the measure, claiming that it would erode employer defenses for legitimate pay disparities by requiring them to prove any differences in pay are the results of business necessities.

“What the Paycheck Fairness Act seeks to do is require employers to justify individual pay decisions on a case-by-case basis based on vague, but clearly onerous, standards,” said Camille Olson, a partner in the San Francisco law office of Seyfarth Shaw, LLP.

Olson testified at hearing on behalf of the U.S. Chamber of Commerce, which strongly opposes passage of S. 84.

Olson told the committee members that the Paycheck Fairness Act would irrevocably harm protections and accepted employment standards already in place under the Equal Pay Act of 1963 and Title VII of the Civil Rights Act.

“If the Paycheck Fairness Act became law, it would be imprudent and highly risky for an employer to ever reward applicants or employees in a job title for their individual educational, training, or experience, without providing that same reward to all employees with similar job titles, regardless of any business decision as to whether someone should be fired or disciplined because of work-rule violation,” Olson testified.

Deborah T. Eisenberg, an associate professor of law at the University of Maryland, refuted Olson’s claims and said that the legislation was needed to better reflect the realities of the 21st workplace and to close several “gaping loopholes” included in the Equal Pay Act.

“It’s been 50 years since the Equal Pay Act was enacted, and women still are earning on average 77 cents on the dollar less than men, so clearly something needs to be done to bridge the pay gap,” Eisenberg said.

According to Eisenberg, the Paycheck Fairness Act would amend the “any factor other than sex” defense,” which she called “a gaping loophole that has swallowed the equal pay for equal work rule in some jurisdictions”

“As proposed, the legislation would instead use a common sense fairness notion that a wage differential between two employees who perform the same jobs should be based on a bona fide factor related to the job or business,” Eisenberg testified. “This standard is already working well in a majority of federal circuit courts and has been adopted by the Equal Employment Opportunity Commission.”

Sources familiar with the issue say the bill will most likely be passed by the Senate but does not have enough support to clear the House. House Republican leaders have indicated that they oppose passage of the bill and have no plans to cast any votes on the proposal during 2014.

Bill Leonard is a senior writer for SHRM.

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