SEIU Local 121RN President Gayle Batiste, RN, and Executive Director Sue Weinstein, RN, submitted comments supporting a new Equal Employment Opportunity Commission (EEOC) regulation regarding collecting information from employers that may show gender-based pay disparity. The letter, the entire length of which is linked below, says, in part:
"SEIU Local 121RN supports using the W-2 wage standard over the OES definition for wages. In the health care industry, it is important to capture overtime hours and shift differentials because those two items can dramatically increase an RN’s annual wages. In a nonunion hospital, distribution of overtime hours can be given to men over women because of stereotypes about men being the family breadwinners or favoritism by executive management who continue to be predominantly male...
"...Again, although unequal pay between men and women has been unlawful for over half a century, the problem persists nationwide, across industries, and regardless of specialization. SEIU Local 121RN strongly supports the EEOC’s proposal to require large employers to disclose pay band data for men and women annually on the EEO-1 Report as one more step to close the pay gap. To be a realistic means of actually making a dent in the gender pay gap, there must be a way for employees and their labor organizations to be involved in this process and partner with the EEOC to ensure large employers are complying with the Equal Pay Act."
Click here to read full the text of the letter.
Local 121RN's support was also noted in an article published on www.law360.com, a legal trade publication.
EEOC Gets Polarized Feedback On Rule To Fight Wage Gap
By Vin Gurrieri
Law360, New York (April 12, 2016, 6:37 PM ET) -- Fisher & Phillips LLP and Seyfarth Shaw LLPwere among recent commenters that urged the Equal Employment Opportunity Commission to scrap its proposed expansion of pay data collection, arguing it would not ensure equitable pay as intended, which puts them at odds with unions and advocacy groups that support the measures.
The management-side firms were among the approximately 320 commenters that offered feedback ahead of the April 1 closing of the 60-day public comment period on rules unveiled in late January by the EEOC and the Obama administration. The proposed changes to employer information reports, or EEO-1s, would require federal contractors and other employers with more than 100 workers to provide more pay data.
The EEOC’s proposal would add data on pay ranges and hours worked to the information collected from the EEO-1s, beginning with the September 2017 report. The data already collected from EEO-1 reports provides the federal government with workforce profiles that are sorted by race, ethnicity and gender.
At the time it announced the expanded pay data collection, the EEOC said it would use the information to assess discrimination complaints, guide agency investigations and identify existing pay disparities that may warrant a closer look.
Comments on the proposed rule revealed a deep chasm between detractors of the proposed regulations, who claimed the EEOC underestimated the hurdles employers would face and that the proposal would ultimately thwart equal pay goals, and employee rights advocates, who argue that any minimal burdens on employer pale in comparison to the benefit of ferreting out pay bias.
As examples of those divergent viewpoints, the National Association of Manufacturers said that the agency's "misdirected and burdensome proposal threatens to undermine, not enhance, efforts to promote pay equity," while the AFL-CIO commented that the expansion of pay data reporting will actually root out instances of pay discrimination and "hopefully increase voluntary employer compliance with those laws."
'No True Benefit'
Much like the National Association of Manufacturers, Seyfarth Shaw said the EEOC’s regulations would be too burdensome on employers, while adding that the agency wouldn’t end up collecting the compensation data it needs for a meaningful analysis.
“While we share the importance of ensuring that employees are paid fairly and equitably, the EEOC’s proposal will ensure no such thing,” Seyfarth Shaw’s comments said. “Instead, in practice, it would impose enormous burdens on employers who base complex compensation decisions on factors other than membership in a particular EEO-1 category and the millions of hours that would be spent on collecting the data will serve no true benefit.”
Similarly, Fisher & Phillips, which submitted comments on behalf of a consortium of 18 state hospitality associations, called the regulations a “recipe for disaster” and said the EEOC should either withdraw or at least consider overhauling them to mitigate the undue burden they place on employers.
“We are concerned that the proposed regulations, as currently written, would not accomplish anything noteworthy,” said Fisher & Phillips partner Robert Meneghello, who was the lead author of the comments. “Instead, they would merely set up employers for unwarranted disparate impact claims of discrimination founded on inaccurate theories using data not sufficiently valid to withstand scrutiny.”
Another management-side firm that chimed in was Jackson Lewis PC, which said the agency “significantly underestimated” concerns from the employer side as how much more of a burden they would face under the new regulations.
One of the burdens highlighted by Jackson Lewis is the likelihood of employers being hit with “false positives,” which could occur as a result of inaccurate data collected by the agency.
Fortney & Scott LLC, a female-owned Washington D.C.-based employment firm, wrote to express support for the EEOC’s larger goal of eliminating pay discrimination, but said it too had “serious concerns about the utility, cost, and legal propriety” of the agency’s EEO-1 revision.
The firm, which noted that its comments represented the views of a coalition of employers that have nearly 1 million employees in the U.S., said that the regulations, if adopted, would “conflict with statutory and regulatory requirements and unduly and unnecessarily burdens employers, without accomplishing the goals articulated by the EEOC.”
A 'High-Value Target'
A slew of business advocacy groups and industry trade associations filed comments saying they are not on board with the EEOC’s proposal, in part because of privacy issues.
The U.S. Chamber of Commerce, for one, said the EEOC didn’t make enough of an effort solicit input from the employer community before issuing its proposed regulations, adding that the agency offered “absolutely no discussion” about any threat to confidentiality or privacy of the information it is requiring employers to submit.
“The EEOC offers no rationale to support its claim that the mass collection of data will be useful for any law enforcement or policy enhancement,” the Chamber said. “In short, the EEOC has sprung upon employers a proposal that would impose significant new, costly administrative burdens, yield data of no utility, and fail to protect confidential information.”
Fisher & Phillips also raised confidentiality concerns, saying the information the EEOC would aggregate “will be a high-value target for hackers on a large scale, and may compromise individual privacy on a small scale.”
A variety of other business groups, including the National Association of Manufacturers, National Growers Association, National Retail Federation, American Fuel & Petrochemical Manufacturers, and the HR Policy Association, echoed the Chamber’s arguments against the EEOC proposal.
'Valuable Insight'
On the other side of the divide, unions, Democratic members of Congress, and the American Bar Association were among the groups that praised the EEOC proposal as a needed step to address the gender pay gap.
A group of nearly 80 House Democrats wrote in favor of the EEOC’s proposal, saying the data that would be gleaned from the EEO-1 revision is necessary to identify and end patterns of pay disparity while also supporting employers who are taking proactive steps to close the wage gap.
Similarly, Sen. Harry Reid, D-Nev., and nearly three dozen Democratic senators commented in support of the EEOC’s regulations, saying the additional data collection is “overdue” in light of the persistence of the wage gap.
“The compensation data collected by the revised EEO-1 will give the public valuable insight into what the pay gap looks like both geographically and by industry,” the Democratic senators said. “Employers will also benefit by, for the first time, being able to benchmark their performance versus their competition [and] they will also be able to empower their human resource departments to make data-driven changes to address any pay gaps that may exist within a firm.”
A local chapter of the Service Employees International Union that represents about 8,500 registered nurses and other health care professionals at hospitals throughout Southern California said the proposed measures are necessary to combat wage disparity, noting that many nonunionized female RNs have anecdotally told the union that they have received lower wages or given less overtime hours than male colleagues with equal skill.
The National Association of Women Lawyers said the pay reporting changes are needed because women in the legal industry are paid 80 percent of what men are paid and representation of women and minorities in the higher ranks of the profession is diminishing.
Employees, however, are often unaware they are being paid unequally because pay information is confidential and employers discourage or prohibit employees from sharing salary information.
“The reporting requirements of the proposed EEO-1 forms will enhance the government’s ability to identify and remedy pay discrimination in the workforce,” the NAWL said, while adding that the EEOC’s proposal actually minimized the financial burden on employers of compliance.
'Long Overdue'
Several groups in favor of the EEOC proposal directly addressed the arguments that the rule would be burdensome, arguing that any additional requirements imposed on employers are necessary and manageable.
The New York County Lawyers Association’s labor relations and employment law committee as well as the women in the law committee threw cold water on the arguments presented by critics of the EEOC's rules, saying they “believe [comments from objectors] are insufficient to stifle this initiative.”
In response to the argument that the new reporting will open them to unwarranted investigations by the EEOC, the two committees said those concerns should be minimal for employers that can substantiate legitimate explanations for disparities in pay.
"For one, there is no basis to conclude that the EEOC will elect to target minor or infrequent disparities over more systemic issues, or that the EEOC’s process for verification of legitimate pay rationales will impose any greater burden on employers than any other investigation it may conduct,” the committees said. “With time, processes for further streamlining the investigation may easily be developed.”
The AFL-CIO commented that the proposed data collection would be only a minimal burden on employers that already have to file an EEO-1 form and are familiar with existing reporting requirements.
“Collecting pay data will help identify pay discrimination, improve enforcement of pay discrimination laws, and hopefully increase voluntary employer compliance with those laws,” the AFL-CIO said. “The addition of compensation data to the EEO-1 is a long overdue and reasonable way to track compensation trends and bring to light potential discriminatory pay practices.”
The ABA also took direct aim at criticisms by commenters of earlier unsuccessful data collection initiatives by the federal government, saying that the EEOC’s current proposal lays out clear objectives and plans for using the data that will be collected.
“Enhancing the ability of the government to target resources to identify and remedy pay discrimination in workforce, therefore, is critical to closing the wage gap, which adversely affects women, families, and the economy,” the ABA said.
--Editing by Jeremy Barker and Kelly Duncan.