30 | Developments in Equal Pay Litigation ©2023 Seyfarth Shaw LLP level.”231 This was fatal to the plaintiffs’ attempt to proceed collectively because, without that, the alleged violations of law were too varied to form the basis of a collective action: “Plaintiffs’ compensation was determined by their supervisors in consultation with their branch managers, and the composition of the compensation depended on their department code, role, and title, which resulted in some plaintiffs receiving incentive bonuses while others could not. Thus, any purported compensation policy affected plaintiffs differently depending on role, title, location, etc.”232 Even within a single establishment, a compensation policy that is particularized with respect to each collective action member can defeat certification, because each plaintiff’s claims would rest on their particular circumstances, rather than one overarching unlawful policy.233 But if plaintiffs can show that the members of the collective action were subjected to the same discriminatory compensation structure, those claims may be allowed to proceed to trial on a collective basis. For example, in Cartee-Haring v. Central Bucks School District,234 a schoolteacher alleged she was paid less than male teachers at the same level. The salaries of teachers in the school district at issue were set by a salary grid, which contained increasing “steps” along the vertical y axis and educational levels listed horizontally across the x axis. The steps reflected the number of years of experience the teacher had been teaching in public schools in Pennsylvania. The educational levels reflected the level of education the teacher had received.235 Based on her 14 years of experience teaching in Pennsylvania public schools, the plaintiff should have been placed in step 15. But she had been placed in step 1. Seven other teachers in the district also testified that they were placed in the wrong step or educational levels when they began teaching for the district.236 The Plaintiff had never sought conditional certification of her putative collective action, but eventually sought final collective action certification of all female teachers who were employed by the district from 2000 to the present who were subject to the district’s salary schedules.237 The court held an evidentiary hearing, wherein eight teachers testified in favor of certification. The court found this sufficient to allow the case to proceed to trial as a finally certified collective action: “The testimony given at the evidentiary record made clear that Plaintiff established, by a preponderance of the evidence, that several women were similarly situated to Plaintiff in that they were also female educators, employed by the District, who were subjected to the same District Salary Schedules.”238 Another issue that often comes up in the context of collective action certification is the concept of 231 Id. at *7. 232 Id. Although the employer’s corporate leadership was involved in approving total salary adjustments for each branch, individual compensation decisions were the result of a collaboration between local branch managers and the employee's supervisors: “supervisors provide compensation recommendations to the branch managers, who can then approve the recommendation without corporate approval.” Id. 233 See, e.g., Bertroche v. Mercy Physician Assocs., Inc., No. 18-cv-59-CJW-KEM, 2019 WL 4307127, at *26-28 (N.D. Iowa Sept. 11, 2019) (granting the employer’s motion to decertify the collective action where discovery revealed that the employer’s compensation scheme was designed to account for each physician plaintiff’s different medical and business decisions, which would result in different total compensation amounts, and so plaintiffs and opt-ins could not be similarly situated to each other for purposes of proceeding as a certified collective action: “the different ways in which physicians operate their medical practices can serve to differentiate them from one another such that they should not be able to proceed collectively,” and the dissimilarities among plaintiff’s medical practices weighed in favor of decertifying the collective action: “because the compensation scheme looks at the specific factual situation of each physicians’ practice, pursuing this avenue would require each plaintiff to present evidence that is specific to her medical practice”). 234 Cartee-Haring v. Cent. Bucks Sch. Dist., No. 20-cv-1995, 21-cv-2587, 2022 WL 3647819 (E.D. Pa. Aug. 24, 2022). 235 Id. at *1. 236 Id. at *4. Plaintiff also identified 26 male teachers who were placed at a higher step than their years of experience or education would warrant. 237 Id. at *5. 238 Id. at *6. The court also held that the alleged discriminatory payments were a continuing violation, meaning that the statute of limitations begins to run on the date of the last occurrence of discrimination, rather than the first. This meant that plaintiffs’ statute of limitations was tied to their last paycheck, rather than to their date of hire, which is when the discriminatory payment allegedly began. Id. at *7. “Unequal payment constitutes a continuing violation when an ‘employer's continued failure to pay the member of the lower paid sex the wage rate paid to the higher paid sex occurs. It is no defense that the unequal payments began prior to the EPA's statutory period.” Id. (quoting 29 C.F.R. § 1620.13(b)(5)). The employer immediately sought to appeal the court’s statute of limitations ruling, but the court held that it had not established its right to an interlocutory appeal. Cartee-Haring v. Cent. Bucks Sch. Dist., No. 20-cv-1995, 21-cv-2587, 2022 WL 16553376 (E.D. Pa. Oct. 31, 2022).
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