Our recommendation is for employers to refrain from asking the (wage history) question on the application or during an interview; phrase questions in terms of pay expectations rather than wage history – Richard Lehr, employment law expert
By Richard I. Lehr Esq.
On Sept. 1, 2019, the Clarke-Figures Equal Pay Act becomes effective in Alabama. Gov. Kay Ivey signed the legislation creating the law on June 10, near the end of the 2019 regular session of the Alabama Legislature.
The act prohibits race or sex discrimination in pay, if the work “requires equal skill, effort, education, experience and responsibility, and performance under similar working conditions,” unless the difference in pay is due to “a seniority system, a merit system, quantity or quality of production or a differential based on any factor other than sex or race.”
This prohibition contained in the Alabama law above:
- Substantially overlaps with the federal Equal Pay Act of 1963, which prohibits sex discrimination in pay decisions under a similar standard, but unlike the federal EPA, Alabama’s Equal Pay Act also prohibits race discrimination.
- Some overlap also exists with Title VII of the Civil Rights Act of 1964, under which employees can bring pay discrimination claims due to race, sex, color, national origin or religion, but only after filing a charge with the U.S. Equal Employment Opportunity Commission. Unlike Title VII, the Clarke-Figures Equal Pay Act has a two-year statute of limitations, no charge filing requirement and no minimum threshold number of employees for coverage.
- Some degree of overlap also occurs with Section 1981, a federal law prohibiting race discrimination under which pay claims can be pursued. Alabama’s Equal Pay Act differs from Section 1981 because it covers sex as well as race and also because Section 1981 sometimes has a four-year statute of limitations, depending on the exact facts of the case.
Alabama’s Equal Pay Act differs from all these federal laws because it contains less generous damages provisions than the EPA, Title VII or Section 1981. Thus, we anticipate that the Clarke-Figures Equal Pay Act will seldom be used for “pure” pay discrimination cases, as most attorneys will utilize the more profitable federal statutes and more experienced federal courts.
WAGE HISTORY PROVISION
Of greater concern is the language that addresses inquiries regarding an applicant’s compensation history. The act creates a cause of action for retaliation if an individual chooses not to disclose wage history and believes that he or she suffered an adverse action due to that nondisclosure. Specifically, the statute states:
An employer shall not refuse to interview, hire, promote, or employ an applicant for employment, or retaliate against an applicant for employment because the applicant does not provide wage history. Wage history means the wages paid to an applicant for employment by the applicant’s current or former employer. – Alabama Act No. 2019-519
OPTIONS FOR ALABAMA EMPLOYERS
Therefore, an employer in Alabama may inquire about an applicant’s or employee’s wage history, but may not treat the applicant or employee adversely because the applicant or employee chooses not to disclose wage history. One of the easiest employment claims to bring is retaliation. In essence, an individual claims that he or she exercised a protected right, suffered adverse treatment and therefore the two are connected in the form of retaliation. So, what are the options for Alabama employers?
- Continue to ask about wage history, with knowledge of the potential implications for a retaliation claim.
- Discontinue asking about wage history altogether. Rather, ask an individual her or his compensation expectations as opposed to wage history.
- Continue as is, with a disclaimer noted next to the wage history question on an application or if discussed during an interview, that failure to respond will not result in adverse treatment.
Often, more individuals apply for a particular job than are selected. So, imagine a situation where an individual is not selected, did not answer the question on the application about wage history, and then claims that he or she was denied employment because of that. Our recommendation is for employers to refrain from asking the question on the application or during an interview; phrase questions in terms of pay expectations rather than wage history.
Richard Lehr is a founding partner with the Birmingham labor and employment law firm, Lehr Middlebrooks Vreeland & Thompson, P.C.