The Obama Administration has made it clear that closing the persistent gender “wage gap” is one of its top EEO priorities. As such, OFCCP has ramped up its enforcement of equal pay laws, including rewriting its compensation investigation guidelines with Agency Directive 307, revamping its Division of Statistical Analyses, and reinventing the pay data component of audit submissions with the new compliance evaluation scheduling letter. Similarly, EEOC has identifies enforcement of the Equal Pay Act as an Agency-wide priority in its 2013-2016 Strategic Enforcement Plan. As a result, now more than ever, it’s important to proactively analyze your pay data for potential discrimination before the federal government comes knocking on your door.
And if that weren’t enough, President Obama recently announced new tools that will soon make finding pay discrimination even easier for OFCCP and EEOC. The “Pay Transparency” Executive Order gives employees the ability to freely discuss pay without fear of retaliation from employers. The planned “Equal Pay Report” will require federal contractors to submit summaries of employee pay to the government by EEO-1 category, race, and gender.
And while it is becoming critically important for employers to do EEO pay self-analyses on a proactive basis, and certainly before submitting any compensation data to OFCCP in an audit, it’s equally important to do so under attorney-client privilege.
As our colleague Scott Pechaitis recently wrote for our Wage and Hour blog, Is Your Expert Analysis Protected by the Attorney-Client Privilege?, “when obtaining an analysis from an expert consultant, attorneys must take care to establish and maintain the attorney-client privilege. Otherwise, the analysis may end up becoming your adversary’s best piece of evidence.”
At the end of the day, make sure you are doing your proactive pay analyses and doing them under privilege.