NEW JERSEY’S NEW EQUAL PAY ACT AND HOW CALIFORNIA PAY EQUITY TASK FORCE PROVIDES GUIDANCE

By: Michelle J. Douglass, Esq. | March 8, 2019

To date, there are no reported decisions that substantively address the new law. Inevitably, a New Jersey State Court will be presented with an issue requiring application of the law to a set of facts. For instance, “substantially similar work” is left undefined, but it is obvious that the legislative intent of the new law is to make this a broader standard than the equal work standard set forth under the federal EPA. New Jersey’s Equal Pay Act is strikingly similar to that of the California Fair Pay Act.

The California Fair Pay Pay Act took effect in 2015, also sets forth a “substantially similar work” standard for equal pay, with such work measured by a composite of skill, effort and responsibility, performed under similar working conditions, and it eliminates the EPA’s requirement that job comparisons be limited to the same physical establishment. The case law developed under the California Fair Pay Act should serve as a tool by which to guide application of the New Jersey Equal Pay Act.

The California Commission on the Status of Women and Girls (CCSWG) formed the California Pay Equity Task Force in 2016 to focus on providing an overview of current California law and addresses key issues related to employees, unions, and employers alike. The California Pay Equity Task Force recently published guidance and approved resources for employer compliance with the state’s equal-pay laws including tools that provide a Step-by-Step Wage Rate Evaluation Template (geared toward assessing whether employees are performing substantially similar work) and Guidance for Employers on Starting Compensation.

Step-by-Step Wage Rate Evaluation Template for Employers

California law, as does New Jersey's new law, generally requires employers to pay the same wage rate to employees who perform substantially similar work. While determining whether employees are performing “substantially similar work” is a nuanced and employer- and position-specific process, the Task Force recommends that employers focus on the “overall job content and actual duties performed” to begin this assessment. Employers are also encouraged to begin by “group[ing] together those positions that require the same skill, effort and responsibility (when viewed as a composite) based on function (e.g., HR, Legal, Marketing, etc.) and role from entry level to VP (e.g., assistant, director, vice president).”   However, this comparison is only a starting point, and the Task Force further suggests that employers ask the following questions to ensure accuracy in grouping positions:

• “Is the position fungible? Can you move someone from one position to another?”

• “Does this position involve the same depth, or breadth of scope? Does the role require the same skill, effort and responsibility?”

• Is “relying on ‘job family’ … consistent with whether the job requires the same skill, effort, and responsibility when viewed as a composite and performed under similar working conditions”?

In developing this Template, the Task Force reviewed a broad spectrum of federal authority and provides illustrative comparisons and examples, as referenced in end notes throughout the Template. In particular, the Template includes specific benchmarks for identifying comparators

• “Skill is measured by factors such as the experience, ability, education, and training required to perform a job.”

• “Effort is the amount of physical or mental exertion needed to perform a job. Effort may be exerted by two employees in a different way, but may still be similar.”

• “Responsibility is the degree of accountability required in performing a job.”

The Template also provides guidance and examples related to assessing appropriate affirmative defenses under California law, including a discussion on the validity of “a seniority system, a merit system, a system that measures earnings by quantity or quality of production” and other bona fide factors that are “consistent with a business necessity and is job related.” In discussing these “other bona fide factors” the Task Force identifies “education, experience, certifications, ability, seniority, performance, skill, training, and geography” as a non-exhaustive list.

The “STEP-BY-STEP JOB EVALUATION TEMPLATE FOR EMPLOYERS TO DETERMINE WAGE RATE” may be accessed in full at:

https://women.ca.gov/wp-content/uploads/sites/96/2018/11/12-Step-by-Step-FINAL-approved-01.10.2018.pdf

Additionally, the EEOC Guidance is an added resource, available at https://www.eeoc.gov/policy/docs/compensation.html,
which further provides:

If a significant portion of the tasks performed in the two jobs is the same, an inquiry should be made as to whether the comparators perform extra duties which make the work substantially different. Jobs with the same common core of tasks are equal, even though the comparators perform extra duties, if the extra duties are insubstantial. See, e.g., EEOC v. Central Kansas Med. Ctr., 705 F.2d 1270, 1272-73 (10th Cir. 1983) (janitors and housekeepers performed equal work; any extra work performed by the janitors was insubstantial or was balanced by additional responsibilities performed by housekeepers), overruled on other grounds by McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988); Corning Glass Works v. Brennan, 417 U.S. 188, 203 n.24 (1974) (noting that Court of Appeals concluded that extra packing, lifting, and cleaning performed by night inspectors was of so little consequence that the job remained substantially equal to those of day inspectors); Goodrich v. International Bhd. of Elec. Workers, 815 F.2d 1519, 1525 (D.C. Cir. 1987) (job of female union employee was not substantially equal to that of males who did the same work because males had additional duties which, though consuming little time, were essential to the operation and mission of the union); Brock v. Georgia Southwestern College, 765 F.2d 1026, 1034 (11th Cir. 1985) (two college teachers' jobs could be compared under EPA even though one served as Coordinator of Business Education Division because any additional duties he performed were ephemeral and took up insignificant amount of time), overruled on other grounds by McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988) (adopting definition of "willful" violation announced in Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985)).

Cases that may prove helpful to interpretation of New Jersey’s Equal Pay Act are as follows:

• E.E.O.C. v. Port Authority of New York and New Jersey, 768 F.3d 247, 256-258 (2nd Cir. 2014) (court rejects argument that “an attorney is an attorney is an attorney” and holds that a “successful EPA claim depends on a comparison of actual job content; broad generalizations drawn from job titles, classification, or divisions, and conclusory assertions of sex discrimination, cannot suffice”; in order for jobs compared to be “substantially equal,” a plaintiff must establish that the jobs compared entail common duties or consent, and do not simply overlap in titles or classifications. “The use of identical evaluative criteria such as ‘project management,’ ‘communication,’ ‘flexibility and adaptability,’ and ‘attendance,’ moreover speaks only to the breadth of the standards used, not to whether the attorneys subject to evaluation face varying workplace demands.”);
• Randall v. Rolls-Royce Corp., 637 F.3d 818, 822–23 (7th Cir. 2011) (assessing skill, effort, and responsibility when mixed within same California Pay Equity Task Force Content Approved on January 10, 2018 Page 12 job title and rejecting application of “comparable worth”; court emphasized that job title is not determinative, as a “title covers a multitude of positions differing in authority (such as number of employees supervised) and responsibility”);
• Brennan v. Prince William Hospital Corp., 503 F.2d 282, 288 (4th Cir. 1974) (“Job descriptions and titles, however, are not decisive. Actual job requirements and performance are controlling.”);
• Ingram v. Brink’s, Inc., 414 F.2d 222, 231 (1st Cir. 2005) (“The EPA is more concerned with substance than title.”);
• EEOC Guidance (“Job content, not job titles or classifications, determines the equality of jobs.” (citing Katz v. School Dist. of Clayton, Mo., 557 F.2d 153, 156-57 (8th Cir. 1977) (teacher’s aide performed duties of teacher and job was substantially equal to that of teacher).