last update 1-01-2003


Have you seen situations where men and women were doing the same or substantially similar work but being paid at different rates. This is not only unfair, it is also illegal.

The Equal Pay Act (29 USC 206(d)) is a federal law that prohibits an employer from paying men and women different wages or salaries for substantially similar work performed under the same working conditions. Men and women must be paid equally for performing in positions that are substantially equal in skill, effort, and responsibility. This section of the law is in the same section as is minimum wage and overtime provisions.

The section dealing with minimum wages and overtime wages, which includes the Equal Pay Act, has a number of exemptions which apply to claimants. However, 29 USC 213 specifically states that equal pay claims are not subject to the same exemptions--such as executive, administrative, professional or outside sales positions.

Whether positions are equal in skill, effort, and responsibility depends on the actual duties of the persons involved. Job titles or descriptions alone do not determine whether the positions are similar. The day-to-day duties are critical. If the jobs require the same levels of education, experience, and responsibility, the same physical or mental exertion, and the same types of work environments, the positions are substantially similar.

The only exceptions to this rule is if the variation in pay is the result of (1) a seniority system, (2) a merit system, (3) a system which measures earnings by quantity or quality of production, or a differental based on any factor other than sex. 29 USC 206(d)

If there are differences in the skill, effort or responsibility required, an employer is permitted to pay different salaries or wages for the two positions. For example, if a male employee and a female are both punch machine operators, but the female employee works the graveyard shift while the male employee works the day shift, the jobs are not substantilly similar because they are not performed under the same working conditions. It is not unlawful for an employer to pay a higher wage or "premium" to persons who work the less desirable shifts.

The differences in the requirements for the positions must be related to performance of the position and meaningful to the position. An employer could legitimately pay a higher salary to an employee who was certified or licensed in his or her field, while paying less to someone who is a novice or helper. An employer could not, however, justify differences in pay for skills or degrees that are unrelated to the position. For example, if a male security guard at a mall had a college degree in biology while the female security guard had only a high school diploma, an employer could not pay the two differently for performing the same position even though the male employee was better educated, since his education did not relate to the position he was performing.

A suit claiming a violation of the Equal Pay Act can be brought in Federal or State Court. 29 USC 216 However, the claim is only valid for the two year period immediately preceding the filing of the suit. Thus, it is a moving window that begins two years ago and comes to the present. If you wait a week to file your suit, you lose the claim for that week two years ago. There is one exception to the 2 year provision and that is if the cause of action arose out of a willful violation of the Act, the time period is extended to 3 years after the cause of action accrued. 29 USC 255

The amount of a claim under the Equal Pay Act is for the amount of unpaid compensation due to the unequal pay, plus an additional equal amount as liquidated or penalty pay by the employer. In addition, the complainant can request an amount be charged the employer for reasonable attorney's fees and for costs of the litigation. If recovery is made, the attorney's fees are mandatory. Although the liquidated damages are also mandatory unless the employer proves that the violation was in good faith and predicated on reasonable grounds. Even if the employer meets its burden of proof, the court, in its discretion, may still decide to award full or partial liquidated damages. 29 USC 216

If you believe you were paid less than an employee of the opposite sex even though you performed a position that was equal in skill, effort, and responsibility, give me a call so that we can discuss the facts of you case.

========================  WARNING  =======================
                      AND DISCLAIMER
This information is provided for the reader's benefit in
becoming familiar with the legal matters discussed.  Your
particular facts may be different from the points above.
You should not rely on the above data without consulting a 
attorney to discuss the specific facts of your case
and the law of your state.

If you live in Louisiana and want to talk about your situation, please call me at:

    Marvin E. Owen
    3036 Brakley Drive
    Baton Rouge, La 70816
    ph 225-292-0099
    toll-free 1-888-292-0116

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