Burr & Forman

01.8.2019   |   Articles / Publications

Employee Benefit Plan Review: The Elusive “Any Factor Other Than Sex” Exception to the Equal Pay Act

In an article published in the latest issue of Employee Benefit Plan Review, Nina Maja Bergmar discusses the Equal Pay Act and exceptions that can be made, such as a seniority system, a merit system and more. A particular exception known as “any factor other than sex” has some caveats, as now, “courts across the country have begun to question whether an employer can base salary decisions on employee’s prior salaries pursuant to the “any factor other than sex” exception,” explains Bergmar.

In 2017, the U.S. Court of Appeals for the Ninth Circuit issued, in Rizo v. Yovino, that the “any factor other than sex” exception should instead be construed as “legitimate, job-related factors such as prospective employee’s experience, educational background, ability or prior job performance,” therefore making prior salary an illegitimate factor.

The Equal Pay Act presents many potential repercussions for those employers who do not comply. According to Bergmar, if an employer is found to have unlawfully paid an employee a lower wage than their colleagues for equal work, the employee can collect back pay for the pay differential and liquidated damages in an amount equal to the back pay.

To avoid any liabilities, employers should review pay practices to ensure they comply with the Equal Pay Act.

Download the full article “The Elusive “Any Factor Other Than Sex” Exception to the Equal Pay Act” written by Nina Maja Bergmar.

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