Photo of Paul Evans

Employers in New York State may soon be required to disclose a salary range in job postings to applicants and employees. New York’s S9427 was just sent to Governor Kathy Hochul’s desk, and if signed, employers in New York State will join employers in New York City (read more here), Colorado (read more here

Pay transparency laws (laws requiring employers to disclose compensation ranges to applicants) are spreading like wildfire across the US. Regulators are hoping such laws eliminate pay differentials based on gender or race. Putting good intentions aside, the laws are a source of huge consternation for businesses as the state and local requirements vary greatly in

Many thanks to our colleagues in London, Yindi Gesinde, moderator, and Monica Kurnatowska, for co-presenting.

Moving the Dial on Inclusion & Diversity in Your Organization

Creating a diverse and inclusive workforce remains a business imperative for global employers. Despite stakeholder and social pressure to accelerate progress, many companies have been unable to move

On March 30, Governor Jay Inslee signed SB 5761, amending the Washington Equal Pay and Opportunity Act, to require all employers with 15 or more employees to disclose the wage scale or salary range along with a general description of all benefits and other compensation in every job posting. Beginning January 1, 2023

On March 15, 2022, the US Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued a new directive putting federal contractors on notice that it will more closely scrutinize their pay equity audits. Making headlines, the directive states that federal contractors are expected to hand over information about their internal pay analyses when being audited by the office, including documents that are protected by the attorney-client privilege and/or work product doctrine.

Background

Executive Order 11246 requires affirmative action and prohibits federal contractors from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. Contractors also are prohibited from discriminating against applicants or employees because they inquire about, discuss, or disclose their compensation or that of others.

As part of their affirmative action obligations, supply and service contractors are required to perform an in-depth analysis of their total employment practices to determine whether and where impediments to equal employment opportunity exist. This includes conducting an in-depth analysis of their compensation systems to determine whether there are gender-, race-, or ethnicity-based disparities, as provided in 41 CFR 60-2.17(b)(3).3.

To comply with the regulations, most companies doing business with the federal government  conduct an evaluation of their pay practices for potential gender, race, or ethnicity-based disparities.  Oftentimes, these analyses are performed with the help of outside counsel who provides legal advice regarding, among other things, compliance with the requirements enforced by OFCCP. And, until now, these pay audits have been considered privileged and confidential.

Impact of the new directive

During a compliance evaluation, a supply and service contractor is required to provide OFCCP with compensation data. In addition to requesting additional compensation data, interviews, and employment records, the OFCCP is now making explicit that it may also seek the contractor’s evaluation under § 60-2.17(b)(3), which the OFCCP calls the “pay equity audit.”

Continue Reading OFCCP Emboldened To Demand Contractors’ Internal Pay Analyses

On March 3, President Biden signed the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act,” H.R. 4445, into law. The landmark legislation allows a plaintiff to elect not to arbitrate covered disputes of sexual assault or sexual harassment. To understand the implications of the new law, click here.

Baker McKenzie’s Mind the Gap report outlines the main barriers to I&D success and key actions that companies can take to further develop their I&D programs. In this episode of TMT Talk, Kate AlexanderJulia Wilson, and Paul Evans focus on the insights from a survey of 900 employment and I&D leaders, looking

President Biden is expected to sign into law landmark #MeToo legislation, which allows a plaintiff to elect not to arbitrate covered disputes of sexual assault or sexual harassment. The “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,” amends the Federal Arbitration Act (FAA), by narrowing its scope and applicability. The bill’s passage had bipartisan support in both the House and the Senate.

Historically, some employers have implemented arbitration programs that require both the employer and its employees to arbitrate most or all types of employment claims, including claims alleging sexual harassment or sexual assault. Largely in response to the #MeToo movement, which began in late 2017, some states passed laws designed to prohibit or restrict employers from requiring employees to arbitrate sexual harassment or sexual assault claims. For example, in New York, employers are prohibited from requiring the arbitration of sexual harassment claims except where inconsistent with federal law. New York’s prohibition on mandatory arbitration in relation to sexual harassment claims went into effect on July 11, 2018, and it has applied to contracts entered into on or after that date. New Jersey and California have enacted similar laws. New Jersey’s law prohibits any provision of an arbitration agreement that waives a substantive or procedural right or remedy relating to employment discrimination, harassment, and retaliation claims. This law applies to all contracts and agreements entered into, renewed, modified, or amended on or after March 18, 2019. Further, on October 10, 2019, California enacted a law, which prohibits employers from requiring employees to sign new mandatory arbitration agreements concerning disputes arising under the California Fair Employment and Housing Act (FEHA) or California Labor Code.  California’s law applies only to agreements dated January 1, 2020 or after. However, courts have found these statutes to be pre-empted by the FAA.

On February 7, 2022, the U.S. House of Representatives overwhelmingly passed H.R. 4445, 335 to 97. Shortly thereafter, on February 10, 2022, the bill passed the Senate in an unrecorded voice vote.

Continue Reading Landmark #MeToo Legislation Allows Employees To Pursue Sexual Harassment & Assault Claims In Court, Rather Than Arbitration

As the Omicron wave recedes, a raft of states have announced plans to lift their mask mandates.

In the past few days alone, California, Connecticut, Delaware, Illinois, Massachusetts, Nevada, New Jersey, New York, Oregon, and Rhode Island have announced changes to their face covering rules. And if the number of Omicron cases continues to dwindle

As we previously reported, at the end of last year, the New York city council passed a bill to require NYC employers with four or more employees to disclose in job postings – including those for promotion or transfer opportunities – the minimum and maximum salary offered for any position located within New York