The Paycheck Fairness Act Would Have Helped All Workers, Not Just Women

Moshe Z. Marvit April 10, 2014

Senator Barbara Mikulski (D-Md.) calls on the Senate to pass the Paycheck Fairness Act at an April 1 press conference. If enacted, the law would have protected all workers from being fired for discussing wages with each other. (Senate Democrats / Flickr / Creative Commons)

Despite being a part of the U.S. work­force for decades, Amer­i­can women are still earn­ing 77 cents for every dol­lar their male coun­ter­parts make. In an effort to close that per­sis­tent gap, Democ­rats in Con­gress have tried three times since 2009 to pass the Pay­check Fair­ness Act. And all three times — most recent­ly on Wednes­day morn­ing — Repub­li­cans in Con­gress have blocked the bill from pro­ceed­ing to debate and a full vote.

Though the act was framed as a way to fight the endur­ing dis­crep­an­cy in wages among gen­ders, in real­i­ty, it would have helped work toward bet­ter con­di­tions for all work­ers. On Tues­day, Pres­i­dent Oba­ma signed exec­u­tive orders that act­ed as a par­al­lel Pay­check Fair­ness Act for fed­er­al con­trac­tors and pub­licly urged Con­gress to pass the bill.

Pre­dictably, Repub­li­cans respond­ed by call­ing the act a job-killer and a non-starter in the cur­rent econ­o­my. If passed, the bill would have made sev­er­al amend­ments to the Fair Labor Stan­dards Act of 1938 (FLSA) and the Civ­il Rights Act of 1964. Specif­i­cal­ly, it would have man­dat­ed that fac­tors used to jus­ti­fy wage dif­fer­ences were not based on gen­der divi­sions and were con­sis­tent with busi­ness neces­si­ty; it would have required the Equal Employ­ment Oppor­tu­ni­ty Com­mis­sion (EEOC) to col­lect data from employ­ers regard­ing the sex, race, and nation­al ori­gin of employ­ees, thus dis­cour­ag­ing dis­crim­i­na­to­ry com­pen­sa­tion deci­sions; and it would have pro­hib­it­ed employ­er retal­i­a­tion against employ­ees who dis­close their wages to each other.

This last pro­vi­sion was meant to shine a light on work­ers’ pay so that it would be more dif­fi­cult for employ­ers to secret­ly pay women — or any­one — less than equal­ly qual­i­fied col­leagues. Though it was a cen­tral part of the leg­is­la­tion that Repub­li­cans vil­i­fied as eco­nom­i­cal­ly prob­lem­at­ic, it actu­al­ly broke no new legal grounds.

In effect, the pro­vi­sion is meant to deal with a prob­lem sim­i­lar to the one made appar­ent in Lil­ly Ledbetter’s case against Goodyear that went before the Supreme Court in 2007. When Led­bet­ter was first hired by Goodyear, she was paid the same as her male coun­ter­parts. Over time, how­ev­er, her pay failed to increase at the same rate as her male cowork­ers’; as she approached retire­ment, she found that she was earn­ing far less than the low­est paid man in her posi­tion. Pre­sum­ably, had she dis­cussed her wages with cowork­ers ear­li­er, she would have known and act­ed upon the pay dis­crep­an­cy soon­er — per­haps even cir­cum­vent­ing the Supreme Court’s ratio­nale for deny­ing her case, which was that she had failed to file suit 180 days from her first paycheck.

Pro­hibit­ing employ­er retal­i­a­tion against work­ers for dis­cussing their wages is an impor­tant pro­tec­tion, and it’s one that is already enshrined in fed­er­al law. Under the Nation­al Labor Rela­tions Act (NLRA), it is a vio­la­tion to retal­i­ate against employ­ees for dis­cussing their wages. The core sec­tion of the NLRA, Sec­tion 7, states that employ­ees shall have the right … to engage in oth­er con­cert­ed activ­i­ty for the pur­pose of col­lec­tive bar­gain­ing or oth­er mutu­al aid or pro­tec­tion.” And there is per­haps no more basic form of con­cert­ed activ­i­ty than dis­cussing one’s wages and terms of employment.

The prob­lem is that employ­ees’ labor rights, as artic­u­lat­ed in the NLRA, have noto­ri­ous­ly weak penal­ties. Labor and employ­ment attor­ney Vin­cent Mer­sich explains to In These Times that an employ­ee who is retal­i­at­ed against by being demot­ed, sus­pend­ed, or any­thing short of fired for dis­cussing her wages can antic­i­pate lit­tle response under the NLRA. The employ­ee must first hope that the Labor Board takes her case; if they do and the employ­ee is suc­cess­ful before a judge, he says, the best [the employ­ee] could hope for is a notice and post­ing require­ment.” If an employ­ee is fired, for that mat­ter, the strongest rem­e­dy she can expect from the Labor Board is lost wages.

Under the Pay­check Fair­ness Act, an employ­ee would not have to rely on hav­ing the Labor Board take her case. Instead, she would be able to go straight to fed­er­al court and seek real reme­dies, includ­ing com­pen­sato­ry and puni­tive damages.

This prospect scares Repub­li­cans. As much as they com­plain about the Labor Board and its pro-union bias,” they much pre­fer its reg­u­la­to­ry struc­ture to one where work­ers could take their cas­es direct­ly to court, have their cas­es heard before a jury of their peers, and be award­ed dam­ages that actu­al­ly com­pen­sate work­ers for their loss­es, while pun­ish­ing and deter­ring employ­ers. Right now, Repub­li­cans can rein in and con­trol the Labor Board by block­ing nom­i­nees — there­by deny­ing the Board a quo­rum — or halt­ing fund­ing; although the Sen­ate does have to approve fed­er­al judge appoint­ments, the same lev­el of inter­fer­ence is not pos­si­ble in the court sys­tem. Con­ser­v­a­tives com­plain about the Labor Board, but they fear the courts.

The right to dis­cuss one’s wages is the­o­ret­i­cal­ly already a fed­er­al­ly pro­tect­ed one under the nation’s labor laws, but the weak­ness of the Labor Board makes it essen­tial­ly a right with­out a rem­e­dy. The approach tak­en by the Sen­ate with the Pay­check Fair­ness Act of try­ing to shift var­i­ous labor rights to oth­er more effec­tive statutes is like­ly the best way to save labor law and pro­tect work­ers. Though the act failed by six votes to get a fil­i­buster-proof major­i­ty on Wednes­day, Democ­rats should cer­tain­ly keep trying.

Moshe Z. Mar­vit is an attor­ney and fel­low with The Cen­tu­ry Foun­da­tion and the co-author (with Richard Kahlen­berg) of the book Why Labor Orga­niz­ing Should be a Civ­il Right.

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