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The Equal Pay Act is a part of the Fair Labor Standards Act (FLSA) and has the same basic coverage with two principal exceptions in that it:
- Applies to executive, administrative, and professional employees who are normally exempted from the FLSA, and
- Covers all state and local government employees unless they are specifically exempted.
Most federal government employees are covered by the Equal Pay Act.
Under the FLSA, men and women must receive equal pay when they:
- Are employed in the same establishment;
- Perform jobs requiring equal skills, effort, and responsibility; and
- Perform under similar working conditions.
These conditions apply unless the differential can be shown to be based on any factor other than sex. For example, it is not unlawful for employees doing the same work to be paid at a different rate if the difference is based upon length of service, skill, or similar factors.
It is also unlawful for an employer to discriminate between men and women performing equal work with respect to benefits. The Equal Pay Act also prohibits employers from making benefits available for spouses or families of employees of only one gender, or for having a pension or retirement plan which establishes different retirement ages based on sex.
If there is a wage differential, it is up to the employer to prove that the difference is justified under one or more of the Act’s defenses.
What constitutes equal skill, equal effort, or equal responsibility cannot be precisely defined. However, “equal” does not mean “identical.” Jobs with minor differences can be equal. Differences must be substantial.
Jobs on different machines or equipment are not necessarily unequal, if the difference in skill or effort is inconsequential.
- Equal skill in performance. A man and a woman are administrative assistants. Both spend two-thirds of their working time supervising support-staff, and one-third in various tasks. Since there is no difference in skills required for the majority of their work, the “equal skill” determination depends on the “various tasks” performed.
- Equal effort in performance. A male supermarket checker spends part of his time carrying heavy packages and a female checker devotes equal effort performing dexterity work, such as rearranging displays of small items. The difference does not appear to make their efforts unequal. Occasional activity which requires extra effort does not qualify as unequal effort. Suppose that men and women work side by side on a line assembling parts. One of the men must lift the assembly and place it on a pallet. A wage difference might be justified for the person (but only for the person) who expends extra effort, provided he does substantially more work over a considerable portion of the day.
- Equal responsibility in performance. Sales clerks: One employee determines whether to accept personal checks. This additional responsibility may affect the business operations, so a higher wage would be permissible. (Responsibility to turn off lights at the end of the day doesn’t qualify).
- Similar working conditions. Jobs in different departments are not necessarily performed under different conditions. Working conditions must be substantially different if the jobs are to be considered unequal on that basis.
- Extra duties. Additional duties may not be a defense where the higher pay is not related to the extra duties, such as where the employee doesn’t actually perform extra work, or where the work consumes a minimal amount of time and is of peripheral importance.
Covered employers must keep any records which relate to wages, job evaluations, job descriptions, seniority systems, etc. which may used in equal pay determinations, and preserve such records for at least two years.
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['Equal Pay Act']
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