Pay Equity Bulletin
April 10, 2023
Pay Equity Bulletin: Spring 2023
This winter brought significant developments in pay equity matters. March 14 marked Equal Pay Day for women, which should serve as a reminder for employers to conduct pay equity assessments on a regular basis in order to avoid enforcement actions and legal claims related to unequal pay.
In addition, a number of states implemented or passed laws requiring the disclosure of pay ranges in job postings that will cover any employer posting positions for remote work that can be performed in those states.
U.S. Marks Equal Pay Day
Tuesday, March 14 was Equal Pay Day for 2023. Equal Pay Day is not attached to a particular date but instead marks the day each year that women catch up to the earnings of men for the prior year. Women on average still earn only 84 cents on each dollar a man earns, and the figure is significantly worse for many minority women. Equal Pay Day should serve as a yearly reminder to employers to assess their pay practices for discrimination. Employers that assess their compensation structure through pay equity audits are less likely to attract enforcement actions and costly litigation.
While the federal government took no significant action on Equal Pay Day to advance pay equity, statements from leadership in the Biden administration emphasize that the administration remains ready and willing to bring enforcement actions against employers with discriminatory pay practices. On Equal Pay Day, Charlotte Burrows, Chair of the Equal Employment Opportunity Commission (EEOC), issued a statement touting the accomplishments made towards equal pay since Equal Pay Day was instituted in 1996, when the event came a month later. But Chair Burrows cautioned that “[w]hile we have gradually chipped away at the gender pay gap, we still have significant work to do.” President Biden marked the day by issuing a Proclamation calling on Congress to pass the Paycheck Fairness Act, which would make it more difficult for employers to defend pay disparities in legal proceedings and would make it largely unlawful for employers to make decisions about compensation for new employees based on past compensation history.
The Acting Secretary of Labor, Julie Su, also issued press release noting what DOL is doing to close the pay gap and specifically noting OFCCP’s issuance of a fact sheet on proactive approaches to pay equity. Former OFCCP Director Jenny Yang posted on the DOL blog, Recommitting to Pay Equity on Equal Pay Day, in which she outlined how to improve pay equity, concluding that “[p]ay equity benefits all workers and the economy.”
Woman do not just lag behind men in compensation. According to a U.S. Government Accountability Office report released on Equal Pay Day, they are also underrepresented in management positions. Moreover, women compromise only 10% of the CEOs of Fortune 500 companies.
Remote Workers Covered by New Pay Range Disclosure Laws
This winter there have been significant developments regarding pay transparency laws across the country. New York State enacted a law requiring disclosure of pay ranges in job advertisements and California and Washington State issued much needed guidance for employers seeking to comply with similar laws that went into effect in those states on January 1. Employers should be paying attention to these laws regardless of whether they have worksites New York, California, or Washington because postings for remote work in those states will be covered.
- On December 21, 2022, New York Governor Kathy Hochul signed into law a bill requiring employers with four or more employees to include wage or salary ranges in all advertisements for hire, promotion, or transfer. The law would apply to all jobs “that can or will be performed, at least in part, in the State of New York.” The law extends to remote workers located in New York and is set to go into effect on September 17, 2023.
- Also in December, California and Washington State released guidance to assist employers in complying with their laws requiring disclosure of pay ranges in job postings. According to the guidance documents, both laws will cover postings for positions that can be performed remotely within those states.
- Washington State’s pay range disclosure law requires every job posting to include a wage scale or salary range, a description of available benefits, and an explanation of any other compensation offered. The Washington guidance lays out strict requirements for what information about benefits and other types of compensation must be included in the job posting, making Washington’s law arguably the most strenuous in the nation from a compliance perspective.
- The California guidance does not require employers to disclose benefits or other forms of compensation.
Employers across the country offering remote work in any of these states should be reviewing the requirements of the new laws even if they do not have operations in California, New York or Washington State because any remote positions will fall under the jurisdiction of those laws. Moreover, Colorado was the first to pass a law requiring disclosure of pay ranges in job postings and its law covers remote workers located in the state as well. Not to mention there are numerous municipalities and localities that passed similar laws, such as New York City and Jersey City, NJ, some of which may cover remote workers. Employers should not assume their job postings are free from coverage.
During this webinar, FortneyScott's experienced practitioners will: Catalogue of the Administration’s activities focused on Higher Education; Trace the trends across agencies; Discuss expanded use of Title VI; and, Provide practical guidance for all employers.
On March 24, 2025, the U.S. Department of Labor (DOL) announced Catherine Eschbach as the new Director of the Office of Federal Contract Compliance Programs (OFCCP). In an email to OFCCP staff, Director Eschbach announced that under her leadership, all reform options are on the table and “most of what OFCCP has been doing is out of step, if not flat out contradictory to our country’s laws.” Her email went further to outline “OFCCP’s transition to its new scope of mission”: Verifying that federal contractors have wound down their affirmative action efforts 91 days after President Trump’s EO 14173 rescinded EO 11246. Examining federal contractors’ prior submissions to determine whether there are any indications of discrimination and whether OFCCP should undertake additional investigations. Advising the Secretary of Labor of measures to deter DEI as required by Section 4 of EO 14173. Determining statutory authority for Section 503 and VEVRAA and whether they should be housed elsewhere in Labor Department. “Rightsizing” the staff and geographic footprint of agency. Federal contractors should pay particular attention to the last bullet above. The new Director indicates that OFCCP will review prior submissions from closed audits to review for illegal DEI. If you receive any communication from OFCCP, or other federal agencies, with regard to past submissions or requesting additional information from closed audits, please contact your FortneyScott attorney immediately With this transition of enforcement for OFCCP, federal contractors need to take the necessary action and steps to ensure they understand and comply with the new obligations as outlined in EO 14173 and above. FortneyScott is assisting many of its clients in these matters. Please reach out to your FortneyScott attorney should you have any questions.
On March 19, the Department of Justice (DOJ) and Equal Employment Opportunity Commission (EEOC) released two technical assistance documents addressing “unlawful DEI,” a 1-page summary, What to Do if You Experience Discrimination Related to DEI at Work , and a longer question and answer (Q&A) document, What You Should Know About DEI-Related Discrimination at Work . In the documents, the agencies remind employees and employers that Title VII prohibits employment discrimination based on protected characteristics, such as race and sex, and that any decisions motivated, in whole or in part, by a protected characteristic are unlawful. The EEOC press release reiterates that “[t]he widespread adoption of DEI, however, does not change longstanding legal prohibitions against the use of race, sex, and other protected characteristics in employment” and the accompanying DOJ press release notes that “[u]nder Title VII, DEI initiatives, policies, programs, or practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic.” The EEOC’s technical assistance document also states that Title VII’s protections apply equally to all workers not just to minority groups. Finally, these official documents provide employees, who question their employers’ DEI practices, with instructions on how to file charges with the EEOC. In the technical assistance document, the EEOC provides the following examples of DEI practices that could be considered to violate Title VII: “Balancing” a workforce based on protected characteristics was provided as an example of unlawful conduct; DEI training may give rise to a colorable hostile work environment claim if a reasonable person would consider it intimidating, hostile, or abusive; Opposition to DEI training may be a protected activity if the employee believes that the training violates Title VII; and, Employee resource groups (ERGs), or similar programs, may violate Title VII’s prohibition of segregating employees if they are not open to all. Although the Supreme Court has not yet ruled on whether an “operational need” for diversity can justify voluntary affirmative action efforts under Title VII, the EEOC is taking the position that a company’s “diversity interest” is not a bona fide occupational qualification (BFOQ) justifying decisions based on protected characteristics. Should you have any questions regarding these or other developments, please contact your FortneyScott attorney. For additional information, be sure to visit FortneyScott’s website and the new Resource Page on Compliance with Trump Administration Changes, including our prior Webinars and Podcasts .
Trump Administration’s Focus on Higher Education
There were several important developments impacting federal contractors’ obligations on Friday, March 14. President Trump issued a new Executive Order eliminating federal contractor minimum wage, apprenticeship and Project Labor Agreement obligations imposed by President Biden’s Executive Orders. Additionally, an appellate court stayed the nationwide injunction on the new Certification of compliance with discrimination laws related to “illegal DEI,” which now permits the Certification obligations to be included in federal contracts. The Rescinded Executive Orders President Trump rescinded EO 14026, Increasing the Minimum Wage for Federal Contractors. This now rescinded EO applied to new or renewed federal contracts in 2022 and established an annual increase of the minimum wage for workers working on federal contracts with the minimum wage increasing to $17.75 beginning January 1, 2025. Effective immediately, federal contractors should use the rate provided in a Wage Determination, and will no longer be required to increase the hourly wage rate in order to meet the federal contractor minimum wage (this applies to both Service Contract Act and Davis-Bacon Act contracts). With regard to Davis-Bacon covered contracts, the apprenticeship obligations also were ended, as EO 14119, Scaling and Expanding the Use of Registered Apprenticeships in Industries and the Federal Government and Promoting Labor-Management Forums was rescinded. This Biden EO directed federal agencies to prioritize federal contractors and grantees who participated in registered apprenticeship programs when making award and funding decisions. Despite this EO being rescinded, we still anticipate the Trump Administration and Congress are supportive of future apprenticeship programs based on the bi-partisan support for these programs during the Secretary of Labor's confirmation hearings. Another Davis-Bacon related Executive Order rescinded focused on Project Labor Agreements (PLAs) -- EO 14126, Investing in America and Investing in American Workers, which favored companies that participated in registered apprenticeship programs and offered equitable compensation practices. Under the now rescinded EO, federal agencies were to favor grant applicants that have PLAs or support voluntary union recognition. Additionally, if applicants offered benefits such as childcare and paid leave, then that would give the applicant greater weight when being considered for funding. The Reinstitution of Compliance Certification The U.S. Court of Appeals for the Fourth Circuit granted the government's request to stay the nationwide preliminary injunction issued by the Maryland district court on March 6 relating to obligations of Federal contractors and grant recipients to certify compliance with the new prohibition on “illegal DEI.” We previously reported on the nationwide injunction, here . As a result of the Fourth Circuit stay, federal agencies now can renew efforts to require Federal contractors and grant recipients to certify compliance, subject to potential liabilities under the False Claims Act. In the future, the Fourth Circuit will address whether the certification obligations are lawful. In light of this ruling, it is important that federal contractors and grantees continue their efforts in ensuring there is no "illegal DEI."
In this content-packed webinar, our experienced practitioners address: The latest developments relating to Executive Order 14173’s new restrictions on “illegal Diversity, Equity and Inclusion (DEI),” and updates on related judicial developments; Practical lessons learned in evaluating whether DEI programs comply with EO 14173; The EEOC’s focus on protecting Americans from discrimination and investigating DEI practices at law firms; and, New initiatives by federal agencies to investigate antisemitism at higher ed institutions.
During this webinar, FortneyScott's experienced practitioners will: Catalogue of the Administration’s activities focused on Higher Education; Trace the trends across agencies; Discuss expanded use of Title VI; and, Provide practical guidance for all employers.
On March 24, 2025, the U.S. Department of Labor (DOL) announced Catherine Eschbach as the new Director of the Office of Federal Contract Compliance Programs (OFCCP). In an email to OFCCP staff, Director Eschbach announced that under her leadership, all reform options are on the table and “most of what OFCCP has been doing is out of step, if not flat out contradictory to our country’s laws.” Her email went further to outline “OFCCP’s transition to its new scope of mission”: Verifying that federal contractors have wound down their affirmative action efforts 91 days after President Trump’s EO 14173 rescinded EO 11246. Examining federal contractors’ prior submissions to determine whether there are any indications of discrimination and whether OFCCP should undertake additional investigations. Advising the Secretary of Labor of measures to deter DEI as required by Section 4 of EO 14173. Determining statutory authority for Section 503 and VEVRAA and whether they should be housed elsewhere in Labor Department. “Rightsizing” the staff and geographic footprint of agency. Federal contractors should pay particular attention to the last bullet above. The new Director indicates that OFCCP will review prior submissions from closed audits to review for illegal DEI. If you receive any communication from OFCCP, or other federal agencies, with regard to past submissions or requesting additional information from closed audits, please contact your FortneyScott attorney immediately With this transition of enforcement for OFCCP, federal contractors need to take the necessary action and steps to ensure they understand and comply with the new obligations as outlined in EO 14173 and above. FortneyScott is assisting many of its clients in these matters. Please reach out to your FortneyScott attorney should you have any questions.
On March 19, the Department of Justice (DOJ) and Equal Employment Opportunity Commission (EEOC) released two technical assistance documents addressing “unlawful DEI,” a 1-page summary, What to Do if You Experience Discrimination Related to DEI at Work , and a longer question and answer (Q&A) document, What You Should Know About DEI-Related Discrimination at Work . In the documents, the agencies remind employees and employers that Title VII prohibits employment discrimination based on protected characteristics, such as race and sex, and that any decisions motivated, in whole or in part, by a protected characteristic are unlawful. The EEOC press release reiterates that “[t]he widespread adoption of DEI, however, does not change longstanding legal prohibitions against the use of race, sex, and other protected characteristics in employment” and the accompanying DOJ press release notes that “[u]nder Title VII, DEI initiatives, policies, programs, or practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic.” The EEOC’s technical assistance document also states that Title VII’s protections apply equally to all workers not just to minority groups. Finally, these official documents provide employees, who question their employers’ DEI practices, with instructions on how to file charges with the EEOC. In the technical assistance document, the EEOC provides the following examples of DEI practices that could be considered to violate Title VII: “Balancing” a workforce based on protected characteristics was provided as an example of unlawful conduct; DEI training may give rise to a colorable hostile work environment claim if a reasonable person would consider it intimidating, hostile, or abusive; Opposition to DEI training may be a protected activity if the employee believes that the training violates Title VII; and, Employee resource groups (ERGs), or similar programs, may violate Title VII’s prohibition of segregating employees if they are not open to all. Although the Supreme Court has not yet ruled on whether an “operational need” for diversity can justify voluntary affirmative action efforts under Title VII, the EEOC is taking the position that a company’s “diversity interest” is not a bona fide occupational qualification (BFOQ) justifying decisions based on protected characteristics. Should you have any questions regarding these or other developments, please contact your FortneyScott attorney. For additional information, be sure to visit FortneyScott’s website and the new Resource Page on Compliance with Trump Administration Changes, including our prior Webinars and Podcasts .
Trump Administration’s Focus on Higher Education
There were several important developments impacting federal contractors’ obligations on Friday, March 14. President Trump issued a new Executive Order eliminating federal contractor minimum wage, apprenticeship and Project Labor Agreement obligations imposed by President Biden’s Executive Orders. Additionally, an appellate court stayed the nationwide injunction on the new Certification of compliance with discrimination laws related to “illegal DEI,” which now permits the Certification obligations to be included in federal contracts. The Rescinded Executive Orders President Trump rescinded EO 14026, Increasing the Minimum Wage for Federal Contractors. This now rescinded EO applied to new or renewed federal contracts in 2022 and established an annual increase of the minimum wage for workers working on federal contracts with the minimum wage increasing to $17.75 beginning January 1, 2025. Effective immediately, federal contractors should use the rate provided in a Wage Determination, and will no longer be required to increase the hourly wage rate in order to meet the federal contractor minimum wage (this applies to both Service Contract Act and Davis-Bacon Act contracts). With regard to Davis-Bacon covered contracts, the apprenticeship obligations also were ended, as EO 14119, Scaling and Expanding the Use of Registered Apprenticeships in Industries and the Federal Government and Promoting Labor-Management Forums was rescinded. This Biden EO directed federal agencies to prioritize federal contractors and grantees who participated in registered apprenticeship programs when making award and funding decisions. Despite this EO being rescinded, we still anticipate the Trump Administration and Congress are supportive of future apprenticeship programs based on the bi-partisan support for these programs during the Secretary of Labor's confirmation hearings. Another Davis-Bacon related Executive Order rescinded focused on Project Labor Agreements (PLAs) -- EO 14126, Investing in America and Investing in American Workers, which favored companies that participated in registered apprenticeship programs and offered equitable compensation practices. Under the now rescinded EO, federal agencies were to favor grant applicants that have PLAs or support voluntary union recognition. Additionally, if applicants offered benefits such as childcare and paid leave, then that would give the applicant greater weight when being considered for funding. The Reinstitution of Compliance Certification The U.S. Court of Appeals for the Fourth Circuit granted the government's request to stay the nationwide preliminary injunction issued by the Maryland district court on March 6 relating to obligations of Federal contractors and grant recipients to certify compliance with the new prohibition on “illegal DEI.” We previously reported on the nationwide injunction, here . As a result of the Fourth Circuit stay, federal agencies now can renew efforts to require Federal contractors and grant recipients to certify compliance, subject to potential liabilities under the False Claims Act. In the future, the Fourth Circuit will address whether the certification obligations are lawful. In light of this ruling, it is important that federal contractors and grantees continue their efforts in ensuring there is no "illegal DEI."
In this content-packed webinar, our experienced practitioners address: The latest developments relating to Executive Order 14173’s new restrictions on “illegal Diversity, Equity and Inclusion (DEI),” and updates on related judicial developments; Practical lessons learned in evaluating whether DEI programs comply with EO 14173; The EEOC’s focus on protecting Americans from discrimination and investigating DEI practices at law firms; and, New initiatives by federal agencies to investigate antisemitism at higher ed institutions.
Filter Out the Noise – What Employers Need to Know About the Trump Administration Changes
In this webinar, FortneyScott’s highly experienced attorneys, including David Fortney, Leslie Silverman (former Vice Chair of EEOC), and Nita Beecher, will discuss the practical implications for employers due to the latest changes at EEOC, including: Impact of President Trump’s unprecedented personnel actions resulting in a lack of a quorum; Response of Acting Chair Andrea Lucas to President Trump’s Executive Orders; Likely focus of the EEOC under the Trump Administration; and, Impact on EEOC of the Trump Administration’s efforts to secure reversal of the Supreme Court’s seminal Humphrey’s Estate decision.
On February 21, Judge Adam B. Abelson in the District Court for Maryland issued a preliminary injunction enjoining defendants (other than the President) from acting under parts of EO 14173. Specifically, the defendants are ordered not to: “pause, freeze, impede, block, cancel, or terminate any awards, contracts or obligations . . . or change the terms of any Current Obligation,” make federal contractors certify that they do not engage in DEI practices that violate anti-discrimination laws, or bring any enforcement actions (including FCA claims) based on the EO’s certification requirement. The government is still permitted to make lists of organizations to investigate. We will keep you apprised of any further developments.
There have been significant changes at the Equal Employment Opportunity Commission (EEOC) during President Trump’s first four weeks in office, as part of the widespread changes at federal agencies. To learn the latest EEOC developments, join FortneyScott’s next webinar on February 25, from 12 noon to 1:00pm (Eastern) as the latest in FortneyScott’s ongoing series of webinar s and podcasts that provide employers with the latest information on the key Trump Administration changes. Register here . In this webinar , FortneyScott’s highly experienced attorneys, including David Fortney, Leslie Silverman (former Vice Chair of EEOC), and Nita Beecher, will discuss the practical implications for employers due to the latest changes at EEOC, including: Impact of President Trump’s unprecedented personnel actions resulting in a lack of a quorum; Response of Acting Chair Andrea Lucas to President Trump’s Executive Orders; Likely focus of the EEOC under the Trump Administration; and, Impact on EEOC of the Trump Administration’s efforts to secure reversal of the Supreme Court’s seminal Humphrey’s Estate decision. Click here to register for this important and timely free webinar on Tuesday, February 25, 2025, from 12 noon to 1:00pm (Eastern).
