Equal Pay Day 2017 fell on April 4 last year and marked the return to the House of Representatives of the Paycheck Fairness Act (PFA). It is the most recent iteration of a bill that has percolated in Congress for over two decades, but has never become law. Designed to ameliorate critical shortcomings its drafters had identified in the Equal Pay Act of 1963, the PFA will almost certainly be introduced on April 10, which is Equal Pay Day 2018.

In light of the building momentum for pay equity legislation in the states, coupled with the advent of the highly publicized #TimesUp campaign, could this be the year the PFA becomes law?

What is the PFA?

The PFA is a bill that contains proposed amendments to the Fair Labor Standards Act of 1938, a federal law applicable to both the public and private sectors. The FLSA articulates standards for the payment of wages, including the minimum wage, overtime provisions, and child labor working conditions. The PFA, if passed, would make several significant changes to current law, including:

  • narrowing the ability of an employer to justify pay disparities based on a factor other than sex as a defense in court;
  • strengthening non-retaliation provisions for employees that disclose information about wages in certain circumstances;
  • mandating collection of compensation data by the EEOC, disaggregated by sex, race, and national origin;
  • prohibiting employers from relying on wage history in the determination of wages; and
  • adding enhanced penalties for violations.

At this time, it is unclear whether the 2018 edition of the PFA will contain the same provisions as in years past. Nonetheless, businesses nationwide should mark their calendars for Equal Pay Day 2018 and track any developments in the PFA’s progress through the chambers of Congress, as it will no doubt have a significant impact on operations.

How Likely is the PFA to Become Law?

With Republican control of Congress comes majority status in the various committees. When the PFA was introduced in 2017 in the House of Representatives, it was referred to the Committee on Education in the Workforce, where it stayed. A substantially similar bill was introduced in the Senate. The PFA was read twice and referred to the Committee on Health, Education, Labor, and Pensions, where it remained. With a similar congressional makeup in 2018, one would be justified in expecting a repeat of 2017. Yet, certain undeniable political and social events have transpired since the PFA was last introduced. More and more state legislatures have taken action to strengthen equal pay laws, including California. That state recently passed the Fair Pay Act, which includes some elements of the PFA, such as making it more difficult for employers to justify pay disparities in court.

The #TimesUp movement proliferated in response to revelations that women are paid less than their male counterparts in the entertainment industry, in addition to providing a platform against sexual harassment. These changes indicate a building national awareness of and focus on pay equity issues. The drumbeat is getting loud enough that Congress may be compelled to act.

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