1. 1 Orrick, Herrington & Sutcliffe LLP 1 Enforcement, the Law and the Politics of Equal Pay Presented by Gary Siniscalco Employment Law & Litigation Group New York October 4-5, 2012

2. 22 In the news…and here to stay…

3. 33 Hot Areas of Litigation and Enforcement  Pay  Promotion  Pregnancy and Work/Life Balance

4. 44 EQUAL PAY

5. 55 Pay Cases

6. 66 Recent Pay Cases of Interest  Dukes v. Wal-Mart Class cert. denied  Velez v. Novartis Pharmaceutical Corp. Jury verdict  Barghout v. Bayer Healthcare Novartis look-a-like  Carter v. Wells Fargo Advisors Settlement  OFCCP v. Astra Zeneca Settlement  EEOC v. Port Authority of NY & NJ Dismissal  King v. Acosta Sales & Marketing Difference due to starting pay Uh-Oh!

7. 77 Legal Framework: Title VII and EPA Basis for Investigation Charge OnlyCharge or Directed Investigation Title VIIEPA ComparatorsEqual or similarly-situatedEqual work Protected ClassSex, race, etc.Sex only Defenses206(d) defenses Seniority Merit Measurement system (quality or quantity of production) Any other fact Same TheoryIntent or disparate impact theoryStrict liability (no intent required) ProofPattern data & individual cohort comparisons Individual cohort comparisons (pattern?) Geographic Scope Established or broaderBy establishment unless…?

8. 88 Legal Framework: Title VII and EPA Basis for Investigation Charge OnlyCharge or Directed Investigation Title VIIEPA Limitations Period300 days prior to charge2 years prior to date of filing lawsuit Administrative Discovery RFI, subpoena, right to petition and enforcement RFI, subpoena and enforcement (no right to appeal) 29 CFR 1601.1629 CFR 1620.31

9. 99 KING V. ACOSTA SALES OPINION BY J. EASTERBROOK

10. 10 Legislative Efforts on Equal Pay  Paycheck Fairness Act fails again  “End Pay Discrimination Through Information Act”

11. 11 What Are The Agencies Doing to Address Equal Pay? National Equal Pay Enforcement Task Force – White House Report  New avenues of attack  EEOC – directed EPA investigations  OFCCP – 40% of resources  Revision to pay data request  Withdrawal of discrimination guidelines (too narrow and constraining)  Pending – New Pay Data Requests v. National Academy of Sciences Report

12. 12 Common Themes Regarding Relevant Statistical Data  Aggregated vs. disaggregated data  Relevant comparator groups  Burdensome requests for company-wide data

13. 13 Pay Investigations  Anticipating an OFCCP (or EEOC) systemic pay analysis  Consider:  by establishment  by larger business unit

14. 14 Pay Investigations OFCCP (and EEOC)  Who is doing equal or similar work?  Sort by business unit; department; job code or function; job title.

15. 15 Pay Factors and Analysis, including  Regression analysis: identifiable factors affecting current pay:  Starting pay and job hired into and date of hire of employee  Pre-hire experiences and education  Time with company – and predecessor?  Time in current job  Promotion history  Performance ratings and rankings

16. 16 Pay Differences  Analysis includes:  Mean/median pay  Pattern distribution  Cohort comparators  Pay differences  Is showing “no pattern” of pay bias enough?

17. 17 ADMINISTATION’S POLICIES ON PAY

18. 18 EQUAL PAY – EEOC TRAINING

19. 19 EPA RFI S

20. 20 OFCCP’S PROPOSED NEW FORM DATA REQUEST __ __ __ __ NOT APPROVED BUT…

21. 21 ANALYZING PAY DATA

22. 22 Pay Litigation or Privileged Pay Equity Study The Players  In-House  Legal  HR  Comp  IT  Outside  Counsel  Expert(s)  Labor ─ Economist/Statistician  Comp Expert

23. 23 Pay Litigation or Privileged Pay Equity Study (cont’d) Documents All comp policies All comp training All comp directives Base Bonuses Benefits  Bonus decisions – all related documents; including meeting notes; lists of attendees/evaluatees  Documents on incentive or merit increases ─ If performance based, documents regarding performance criteria } re

24. 24 Pay Litigation or Privileged Pay Equity Study (cont’d) Data  HRIS payroll history – pay changes, promotions and job title changes  Performance ratings  Detail employee/cohort data on comp factors  OFCCP factor analysis

25. 25 Pay Litigation or Privileged Pay Equity Study Other  Any compensation, pay equity or pay survey reports or analyses already done  Any market analyses  Documents regarding starting pay  Pay status sheets  Resumes/applications/manager or HR notes

26. 26 SAMPLE AUDIT APPROACH