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Maryland’s Equal Pay Law: Are You In Compliance?

Watching the U.S. Women’s National Team play in and win the World Cup this past weekend took me right back to my own days of competitive girls’ soccer.  But nostalgia wasn’t the only thing that came to mind as the win brought additional attention to the Team’s recent lawsuit for equal pay.  That lawsuit, filed in March, generally alleges that the players on the Women’s National Team (“WNT”) are paid less than the players on the Men’s National Team (“MNT”) for performing the same job duties, despite the fact that the WNT has both earned more revenue than and outperformed the MNT.  This, the suit alleges, violates Title VII and the federal Equal Pay Act (“EPA”).

As many readers are likely aware, Maryland has its own version of the EPA, called the Equal Pay for Equal Work law.  Some of the key provisions of this law are as follows:

– It applies to all employers in Maryland regardless of employer size.

– It generally prohibits employers from paying an employee of one sex or gender identity (in contrast to the federal EPA, which only covers sex) less than that paid to an employee of another sex or gender identity when both employees work in the same establishment and perform comparable work or work on the same operation, in the same business, or of the same type.

– It also prohibits employers from providing less favorable employment opportunities based on sex or gender identity.  This means (a) assigning an employee to a less favorable career track or position; (b) failing to inform an employee about a promotion or advancement opportunity; or (c) limiting or depriving an employee of an employment opportunity that would be available but for the employee’s sex or gender identity.

– Variations in wages may exist if such a variation is based on (a) a seniority or merit increase system that does not discriminate based on sex or gender identity; (b) jobs requiring different ability or skill or the regular performance of different duties or services; (c) work performed during different shifts or times of the day; (d) a system that measures performance based on quantity or quality of production; or (e) a bona fide factor other than sex or gender identity.

– A “bona fide factor other than sex or gender identity” includes education, training, or experience in which the factor (a) is not derived from a gender-based differential in compensation; (b) is job related and consistent with business necessity; and (c) accounts for the entire differential.

– Employers may not reduce an employee’s wages in order to be in compliance with the law.

– Employers generally may not prohibit employees from discussing their wages, except if a reasonable limitation of such discussion on time, place, and manner is provided to employees via a written policy.

Employers should also take note that earlier this year, the Maryland General Assembly passed an amendment to the law’s penalties section.  Specifically, effective October 1, 2019, employers found to have two or more violations of the law within a three-year period may be subject to an additional penalty of 10% of the amount of damages owed by the employer.

Readers wishing to learn more about the Equal Pay for Equal Work law may do so here.

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