Developments In Equal Pay Litigation - 2024 Update

©2024 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 35 managers brought claims on behalf of a putative collective action comprised of female store managers who worked in hundreds of chain locations across several states. The court first held that the female employees had adequately alleged an EPA claim, despite the fact that comparable employees would have worked at other chain locations. The Court held that the plaintiffs had alleged that the employer has ‘a rigid top down, hierarchical corporate structure,’ with a ‘top down wage policy,’” which was enough at the motion to dismiss stage to show that the multiple chain locations constituted a single establishment under the EPA.267 The court relied on the same reasoning to conditionally approve a nationwide collective action.268 However, in Goins v. United Parcel Service Inc.,269 a group of 18 named plaintiffs sought to bring a nationwide class action on behalf of all female employees of the employer for, among other things, sexbased wage discrimination. The complaint floundered at the pleading stage, however, because the court held that plaintiffs had failed to allege the facts necessary to show that each putative class or collective action member worked in the same “establishment,” as required by the federal EPA. The court noted that the federal EPA allowed for “unusual circumstances,” where employees who work in geographically separate locations could nevertheless be held to be working in the same establishment, but held that “plaintiffs fail to allege sufficient facts showing that the ‘unusual circumstances’ necessary to consider multiple sites part of the same ‘enterprise’ are present.”270 The court found, among other things, that plaintiffs failed to allege facts that would show that “the thousands of [employer] facilities nationwide, where employees are governed by several collective bargaining agreements and supervised by hundreds of thousands of managers, embody the ‘unusual circumstance’ that is the exception to the rule of EPA claims being limited to a single establishment.”271 Accordingly, the court dismissed the EPA and California EPA claims that were brought on behalf of a collective and a class, respectively. Some courts will refuse to conduct the “establishment” analysis at all at the conditional certification stage. For example, in Santiago v. Information Resources, Inc.,272 two plaintiffs sought conditional collective action certification of all female analysts, consultants, principals, vice presidents, and senior vice presidents who worked in or out of the employer’s New York office. One of the Plaintiffs, a consultant, alleged she was paid 10% less than male consultants for the same work. She sought to represent a broad collective action of other female employees of various job titles, arguing that the employer subjected female employees to “biased treatment and standards due to their gender,” and permitted “a culture that ‘marginalized’ women and limited their career opportunities.”273 The court noted the relatively lenient standard governing conditional certification, as well as the early procedural posture of the case, 267 Id. at *3. 268 Id. at *4. The court stressed that a plaintiff’s burden at the conditional certification stage is a “low bar,” and credited Plaintiff’s allegations that the employer exercised “’centralized, top-down compensation authority,’” which was an “’incubator for pay inequality.’” Id. See also Finefrock v. Five Guys Ops., LLC, 344 F. Supp. 3d 783, 789-91 (M.D. Pa. 2018) (holding that plaintiffs had provided a sufficient modest factual showing that the employer could be considered a single establishment for purposes of the EPA, pointing to the employer’s nationwide job descriptions and policies, the frequency with which plaintiffs had transferred store locations, and the fact that final compensation decisions were approved by the central office, and also concluding that those same factors allowed for conditional certification of a nationwide collective action: “[b]ecause the focus of the inquiry at this conditional certification stage is not whether there was an actual violation of law, but rather whether the proposed Plaintiffs are similarly situated, the court finds that Plaintiffs have met their modest factual burden”); Gambino v. City of St. Cloud, No. 6:18-cv-869-Orl31TBS, 2018 WL 5621517, at *8 (M.D. Fla. Oct. 11, 2018) (holding that city employees worked within the same “establishment,” noting that the Eleventh Circuit recognizes that “[u]nder appropriate circumstances, multiple offices may constitute a single establishment for EPA purposes”) (citing Marshall v. Dallas Indep. Sch. Dist., 605 F.2d 191, 194 (5th Cir. 1979)). 269 Goins v. United Parcel Serv. Inc., No. 21-cv-08722-PJH, 2023 WL 3047388 (N.D. Cal. Apr. 20, 2023). 270 Id. at *13. 271 Id. 272 Santiago v. Info. Res., Inc., No. 20-cv-7688(AT)(SN), 2022 WL 476091 (S.D.N.Y. Feb. 16, 2022). 273 Id. at *2. The employer, a data analytics and market research company, organized its employees into separate departments, each focused on a different client industry, and according to three progression levels based on their competencies and skills acquired through experience and training. Employees’ salaries are based on factors such as business needs, employee duties and responsibilities, education, certification and licensure, training, and market salary reference data, and they are negotiable. Salary increases and bonuses are based on a performance evaluation system.

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