2 | Developments in Equal Pay Litigation ©2023 Seyfarth Shaw LLP “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.”8 The new laws enacted in New York and Illinois have similar standards.9 The Massachusetts Equal Pay Act prohibits differences in pay for “comparable work.”10 Other states apply different standards for comparing the work between a plaintiff and his or her alleged comparators. State laws also differ with respect to the affirmative defenses available to defendants. California’s law requires employers to affirmatively demonstrate that any pay differences are based on one or more of a limited number of factors. It also limits the factors that employers can use to justify pay differentials and requires that the factors be applied reasonably and, when viewed together, must explain the entire amount of the pay differential.11 The Massachusetts law also creates an affirmative defense for an employer that has: (1) completed a self-evaluation of its pay practices that is “reasonable in detail and scope in light of the size of the employer” within the three years prior to commencement of the action; and (2) made “reasonable progress” toward eliminating pay differentials uncovered by the evaluation. State laws also differ in terms of the procedural rights and remedies available to plaintiffs and defendants. For example, the California Fair Pay Act allows employees to bring an action directly in court without first exhausting administrative remedies—provided the employee does so within two years (or three if the violation was “willful”)—and the employee may recover the balance of wages, interest, liquidated 8 Cal. Lab. Code § 1197.5(b). 9 NY Lab. Law § 194(1) (“equal work on a job the performance of which requires equal skill, effort and responsibility, and which is performed under similar working conditions,” or “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions”); 820 Ill. Comp. Stat. 112/10(a) (“the same or substantially similar work on jobs the performance of which requires substantially similar skill, effort, and responsibility, and which are performed under similar working conditions”). 10 Mass. Gen. Laws. c. 149 § 105A. 11 Id.
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