Dive Brief:

• A lawsuit by the U.S. Senior Women's National Soccer Team (WNT) has been granted class and collective action status under the Equal Pay Act and the Fair Labor Standards Act (Morgan et al v. U. S. Soccer Federation, Inc., No. 19-cv-01717 (C.D. Cali. Nov. 8, 2019)).
• The judge approving the request noted that "the crux" of the plaintiffs' complaint is that although the WNT is called upon to perform the same job responsibilities as the Men's National Soccer Team and, "despite the fact that the WNT's performance has been superior" to that of the men's team, the defendant, the United States Soccer Federation, compensates the female players less on a per-game basis than the male soccer players. The court also noted that female players have been subjected to inferior terms and conditions in their employment, citing as an example that the U.S. Soccer Federation decides who flies commercial or via charter to games and that charter flights are more comfortable, create less opportunity for both lost baggage and missed connections, and better opportunity for rest before and after games. In 2017, the organization chartered flights for the men 17 times but did not do so "even once" for the female players, the court said.
• The Soccer Federation had argued that there was no discrimination because the total compensation of the female players exceeded that of similarly situated male players, regardless of whether the female employees received a lower rate of pay than male comparators. The court noted that this argument has been "explicitly rejected" in other instances because to decide otherwise would lead to the "absurd result" that an employer that pays a woman $10 an hour and a man $20 an hour would not violate the EPA as long as the woman "negated the obvious disparity by working twice as many hours."

Dive Insight:

Between an influx of salary history ban laws, pressure from federal enforcement agencies, and demand from shareholders and employees, pay equity is becoming a priority for many employers. The best way to avoid pay disparities, according to U.S. Equal Employment Commission Commissioner Charlotte A. Burrows, is through prevention, she told attendees at a recent event. To avoid the accidental or intentional creation of pay gaps, employers can conduct regular analyses, Burrows said.

It's worth thinking about how these analyses will play out, speakers at the National Employment Law Institute's (NELI) 42nd annual Employment Law Update said last year. Questions employers need to consider, according to the NELI speakers, include whether the audit will be privileged in the event of future litigation; what data already exists; which positions will be compared; and what compensation will be studied. For example, will only base pay be examined or will bonuses be examined as well?

Employers' action around ensuring pay equity may trigger positive consequences beyond payroll. Pay transparency can also be an aid in attracting and retaining top talent, according to a recent study by Mercer.