“How Much Do You Currently Make?” – Banning Salary History Questions

This post was written by Jessica Clay, a volunteer who serves on our Economic Justice Committee.

Women Are Still Paid Less Than Men

According to the National Women’s Law Center, and the Equal Employment Opportunity Commission (“EEOC”), American women who work full-time make only 79 to 80 cents for every dollar their male counterparts earn. Over the course of a year, this averages to more than $10,000 less in median earnings. The wag-gap is even more pronounced for women of color. The National Women’s Law Center found that Latina, Native American, and African American women make between 55 and 60 percent of the wages of white, non-Hispanic men, for full-time, year-round work.

Pay and compensation discrimination based on sex is prohibited under federal law by the Equal Pay Act of 1963, (EPA”), and Title VII of the Civil Rights Act of 1964, (“Title VII”), as well as under many state and local laws. The laws apply to all forms of employee compensation:  salary, bonuses, overtime pay, holiday pay, stock options and profit sharing, reimbursements, and benefits. Under the EPA, men and women are required to be given equal pay for equal work in the same establishment for jobs that are substantially equal. It is permissible, under the Act, to pay individuals differently based on seniority, merit, the quality or quantity of production, or any factor other than sex.  Title VII, likewise, prohibits discrimination in compensation based on sex, as well as, race, color, national origin, religion, or disability. Title VII, unlike the EPA, does not require that the employee’s job be substantially equal to a male counterpart. Likewise, Title VII does not require the comparator to work in the same establishment.

New Laws Preventing the Perpetuation of the Wage Gap

While pay discrimination can be based on experience, education, merit, or industry, it can also be perpetuated by allowing new employers to justify salaries based on the discriminatory pay of former employers. There is a growing trend of states and cities proposing legislation that bars an employer from asking a potential employee about their salary history. These laws are based on the idea that pay discrimination can follow a woman from employer to employer, throughout her career, because each job move is based on pay that is already lower than her male counterparts. Basically, pay discrimination can be compounded from job to job, throughout a woman’s career. These proposed laws seek to prohibit employers from relying on prior, likely inequitable, compensation-levels when setting salaries for incoming employees. Opponents of these measures contend that the law are unnecessary and will hurt the hiring process.

Earlier this year, in Rizo v. Yovino, the Ninth Circuit Court of Appeals, overturning a lower court ruling in California, held that employers may pay women less than men for the same job based on their previous salaries. In other words, if a woman is paid less than a male counterpart because of pay discrimination at her former employer, her next employer can legally continue that pay disparity. The Ninth Circuit rejected the reasoning of the lower court, which concluded that basing women’s salaries on their prior salaries was inherently discriminatory because women likely faced pay discrimination at their previous jobs because of gender bias.

To prevent the perpetuation of the wage-gap, Philadelphia, New York City, and Massachusetts, have all passed laws that prohibit employers from asking job candidates about their salary history or benefits before making a job or salary offer. Women often start out their careers with unequal pay, and the wage discrimination follows them throughout their careers, from job to job. Last year, Massachusetts passed the first law that bars an employer from asking an applicant about their current salary or salary history.  Philadelphia’s law, which was set to go into effect on May 23, is on hold by a federal court. New York’s law, an amendment to the NYC Human Rights Law, is set to go into effect later this year, and Massachusetts’s in July of 2018. In January, New York Governor Andrew Cuomo also proposed two executive orders aimed at eliminating the wage gap for public employees.  Numerous other states and local governments, are all considering similar laws, including: California, Illinois, Maine, Maryland, New Jersey, Pennsylvania, Rhode Island, Vermont, and Washington D.C. The expectation is that, if employers don’t set employee wages based on discriminatory salary history, instead salaries would be strictly market-based. A bill prohibiting employers from asking salary-history questions during job interviews nation-wide, has also been proposed at the federal level. Currently, the proposed Pay Equity for All Act of 2016, (H.R. 6030) is in the House Committee on Education and the Workforce.

Linking women’s salary to their previous salary can compound wage discrimination in the workplace. While much is still left to be done to close the wage gap, these types of laws are a step in the right direction. We must continue the fight for Equal Pay.

 

Sources

H.R.6030 – Pay Equity for All Act of 2016 114th Congress (2015-2016), https://www.congress.gov/bill/114th-congress/house-bill/6030

Facts About Equal Pay and Compensation Discrimination, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/eeoc/publications/fs-epa.cfm

FAQ About the Wage Gap, National Women’s Law Center, https://nwlc.org/resources/faq-about-the-wage-gap/

Introduction of the Pay Equity Act of 2016, Congressional Record, September 14, 2016, Extension of Remarks, https://www.congress.gov/crec/2016/09/14/CREC-2016-09-14-pt1-PgE1269-3.pdf

Equal Pay Act Charges (Charges filed with EEOC), (includes concurrent charges with Title VII, ADEA, ADA, and GINA) FY 1997 – FY 2016, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/eeoc/statistics/enforcement/epa.cf1m

Written Testimony of Jocelyn C. Frye, Senior Fellow, Center for American Progress, Hearing of March 16, 2016 – Public Input into the Proposed Revisions to the EEO-1 Report, https://www.eeoc.gov/eeoc/meetings/3-16-16/frye.cfm

Asking for Salary History Perpetuates Pay Discrimination from Job to Job, National Women’s Law Center, https://nwlc.org/resources/asking-for-salary-history-perpetuates-pay-discrimination-from-job-to-job/

Lawmakers Advance Bill to Ban Salary History Questions, U.S. News and World Report, Best States, New Jersey News, https://www.usnews.com/news/best-states/new-jersey/articles/2017-05-23/lawmakers-advance-bill-to-ban-salary-history-questions

Banning Salary History Questions: A Game Changer?, Society for Human Resource Management, Oct. 6, 2016, https://www.shrm.org/resourcesandtools/hr-topics/compensation/pages/banning-salary-history.aspx

Recruiting and “Off-Limits” Questions about Salary History – What Employers Need to Know, Drinker Biddle & Reath LLP, https://www.lexology.com/library/detail.aspx?g=0c070d26-9a3f-4aa4-ac68-757f41653682

Legislation Limiting an Employer’s Ability to Inquire About and Consider Applicants’ Prior Salary History Gains Momentum, Employment Matters Blog, https://www.lexology.com/library/detail.aspx?g=a066dabe-216e-402c-b6c7-19afba71f10f

The “New York Promise Agenda” Promises to Increase Employee Protections, Orrick Employment Law and Litigation, http://blogs.orrick.com/employment/2017/01/23/the-new-york-promise-agenda-promises-to-increase-employee-protections/

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A Great Resource: OESW’s Monthly Newsletter

Did you know that Minnesota has an Office on the Economic Status of Women? OESW advises the legislature and provides information and statistics on women in Minnesota. The office gathers information on population characteristics, educational attainment and enrollments, marital and parental status, household characteristics, labor force status and employment characteristics, and basic information on women’s legal and economic rights.

OESW publishes a monthly newsletter, and their May issue is a follow up to February’s, which included research findings about media coverage of women’s sports. Check it out below.

OESWNewsletterIssue14

 

Women of Color Opportunities Act is a Good Investment

This piece was written by our treasurer, Beth Anderson, and published on the Savage Pacer website on April 25, 2016.

Minnesota’s 2016 legislative session is well underway in St. Paul and our Legislature is discussing difficult issues like transportation funding and the copper/nickel mining prospects up north. But I want to draw your attention to a lesser-known series of bills introduced by Representative Rena Moran in the House and Senator Sandy Pappas in the Senate, addressing the educational and economic disparities of women of color in our state. Known as the Women of Color Opportunities Act (WOCOA), this legislation is designed to develop programs for women and girls of color in order to increase their economic success in our state.

The legislation consists of five bills that develop programs in key areas of education and employment and economic development. These bills are common sense ideas and programs that promote the tools that all of our young people need to succeed in our city and state. Yet these same tools have been disproportionally unavailable to women and girls of color. Here is a brief summary of the bills proposed:

  • Increase academic success by decreasing the school suspension rate for girls of color, increasing on-time high school graduation rates, and encouraging girls of color to pursue post-secondary education. (HF 3031/SF 2885)
  • Educate women and girls of color in financial literacy to lay the groundwork for an economically secure future. (HF 3032/SF 2865)
  • Encourage girls of color to explore and pursue STEM (science, technology, engineering and math) careers by funding competitive grants to community-based, STEM-affiliated organizations experienced in serving girls of color. (HF 3033/SF 2916)
  • Increase the number of women of color in high-wage, high-demand, nontraditional jobs through job skills training and apprenticeships. (HF 3098/SF 3056)
  • Provide small business loans and technical assistance to businesses owned by women of color. (HF 3099/SF 2931)

Here in Savage, with an 82 percent white population, you might ask, “Why should Savage care about the Women of Color Opportunities Act?” My answer is several-fold.

Increasingly our business community relies on a diverse, skilled, and educated workforce. If we hope to attract world-class businesses to Savage and the surrounding communities, we have to be able to provide a workforce that is well-trained and ready to produce. This may mean an apprenticeship in a skilled trade, it may mean a two-year college degree, or it may require an accredited four-year college degree. Any way you slice it, high school drop-outs and illiterate citizens do not cut it in today’s work force.

Our community is changing. In 2000, the city of Savage was 10 percent non-white, in 2010 we were 18 percent non-white, and 2013 estimated statistics showed Savage to be 20 percent non-white. These numbers are pretty typical at state levels, too. As our population ages, more diverse communities are following. According to the Minnesota State Demographic Center, younger Minnesotans are more racially diverse than older Minnesotans. There are three counties in Minnesota where the children under 5 are over 50 percent children of color. More people of color are living in Savage than ever before. This brings diversity and vibrant cultures into our local melting pot. It’s a good thing. But we in Savage must make sure that the necessary components for a successful education and successful employment are also available for this growing community.

Making sure that all of our children have the opportunity to succeed in school and at work benefits all of us. There is a bigger tax base when we are all gainfully employed and there is less reliance on government services. Statistically we have heard a lot in Minnesota about the documented employment gap between white Minnesotans and black Minnesotans — a 2013 study found that blacks were three times as likely to be unemployed as whites. And we have heard a lot about the education disparity between whites and blacks — in 2003, white Minnesotan eighth-graders topped the charts on national math tests while black Minnesotan eighth-graders came in 22nd of the 50 states. This achievement gap has been well-documented and discussed. What has not been clear is how to fix it.

Achievement gaps are often attributed to income level and home environment. Low-income families often have few educational resources. Recent immigrants don’t always have the English language skills needed to keep pace in school or the financial literacy that leads to good economic decisions. The Women of Color Opportunities Act attempts to address these resource gaps head on.

Making sure our women and girls of color graduate from high school, increase their financial literacy, pursue post-secondary education, obtain high-paying jobs, and have the tools available to start their own businesses will go a long way towards ending these disparities and making our communities a better place to live.

The bills introduced in the Women of Color Opportunities Act are administered by two departments: the Department of Education and the Department of Employment and Economic Development. The bills ask for a nominal amount of funding for pilot programs and grants to local community groups to achieve the goals of the bill. In this way, local groups who work with girls and women in the community receive the funds they need to make a difference. Reporting and oversight is at the state level and the pilot programs must be developed so they can be transferred and used throughout the state.

According to the bill’s authors, the estimated cost of this set of bills is about $4.9 million. The Minnesota Management and Budget Office is projecting a $900 million surplus in 2016. It seems to me that this small expenditure — 0.5 percent of our projected surplus — is well worth the investment in our future Minnesotans. You can ask Representative Drew Christensen and Senator Dan Hall for their support at rep.drew.christensen@house.mn andsen.dan.hall@senate.mn.

Wage disclosure promotes good business through better pay and better workers

This piece was written by our treasurer, Beth Anderson, and published on the Savage Pacer website on October 19, 2015.

Employers and employees alike are squeamish when discussing wages and how they are determined.

Traditionally, employers have discouraged employees from comparing salaries or discussing their wages. In some cases it has even been a condition of employment. In Minnesota, that is now illegal. And I argue that wage discussions amongst employees should be encouraged to the benefit of employers and employees alike.

The Women’s Economic Security Act (WESA) was enacted in Minnesota on Mother’s Day 2014. The law covers many issues involving women’s rights in the workplace and is designed to address the causes of the gender pay gap and to protect the rights of pregnant employees. The Minnesota Legislative Office on the Economic Status of Women just issued a report on WESA implementation over the last year and I thought it was a good time to discuss one of its provisions: wage disclosure.

WESA makes it illegal to prohibit employees from discussing wages or to retaliate against employees who discuss their wages or another employee’s wages. This is a key provision for women workers, or for any workers that have faced wage discrimination. How do you know if you are being paid in accordance with your peers if you can’t discuss it with them? We know in general from salary surveys and hiring statistics what types of salaries can be expected in broad job categories, but most of us don’t know how our personal salary compares to that of a similarly employed co-worker.

The Minnesota Department of Labor and Industry is tasked with enforcing the wage disclosure protection portion of WESA. Between July 2014 and September 2015, there have been only three worker’s complaints regarding the wage disclosure provision of the law. This may be because employees are not experiencing problems with discussing salaries, but I think it is more likely that the traditional reticence we have for discussing our salaries and wages has kept us from exercising this right.

After all, if you found out you were making less than a similarly qualified co-worker, it might make you feel bad about your job, perhaps decrease your job satisfaction. And if you found you were making more than your co-worker, you might not want to discuss it with them if it only served to make them feel bad about themselves or their job. Why risk the discomfort?

One obvious reason to risk it is economic. If you are underpaid, you can use the information to negotiate for a fair wage. For example, it has been shown that even small differences in starting salaries can multiply over time and have a large effect on your lifetime earnings. Since most future pay raises are based on current salaries, if you start with a smaller salary, it can affect not only your current wealth, but your future earning potential. A $5,000 difference in starting salary can grow to a $12,000 difference in salary 30 years down the road. And that’s an extra $12,000 each year!

Similarly, if you find your salary is less than your co-workers mid-career, you can use that information to argue for a raise, or correction, to bring your wages in line with the going rate. Some of this can be done based on national or local wage statistics, but disparities within a company may not be picked up by comparison with national averages or ranges, and the differences can be significant. Wage disclosure discussions will help make salaries fair an d lessen the inequalities.

A second reason for having this wage discussion is to make the market more efficient. If a worker is not being paid according to similarly qualified co-workers, it may be because they are underperforming. Having the wage discussion could prompt better performance on the part of the worker or it could cause the employee to seek employment that is more suited to their skills. Both the employer and the employee benefit from having high-performing, fairly-compensated employees. The market should self-correct, matching the right employees to the right tasks.

In order for this to work, an employer has to determine what factors influence salaries in their company and clearly communicate that to the employees. Are wages and salaries based on customer satisfaction, hours worked, quality of product produced, sales figures, seniority, specialized skills or education, commitment to the company, etc.? What matters when setting salaries and what doesn’t matter? If your company hasn’t clearly stated this, it might be a good time to ask.

As a small business owner myself, I know the challenges involved in applying a consistent standard to employee wages and clearly communicating the criteria. Jobs evolve, employees gain experience and education, and the company’s performance varies. Every year, I reflect on the salaries I am paying my employees and how they compare to each other and to national standards. I take into consideration the performance of the individual, the performance of the company as a whole, the education and training the employee brings to the position, and the complexity of what is being asked of the employee. I use the annual salary review to make changes where necessary to eliminate arbitrary or unconscious bias that may have crept into the compensation packages over the years. I envision the discussion that I would have with that employee if confronted with questions regarding their pay in comparison with others in the company. And I walk away with a new appreciation for the bargain we all make to provide a fair wage for a job well done.

Whether you are an employer or an employee or both, the wage disclosure discussion will result in better pay and better workers. If you have questions about the wage disclosure protection provision of WESA, you can contact the Labor Standards unit of the Minnesota Department of Labor and Industry at 651-284-5070.

Paycheck to Paycheck and Economic Justice

Economic justice is one of Minnesota NOW’s core issues, a term that encompasses a number of concerns including education, livable wages, job discrimination, pay equity, housing, childcare and more.

On Tuesday, October 21st, Minnesota NOW’s Economic Justice Committee hosted a screening and discussion of the film Paycheck to Paycheck: The Life and Times of Katrina Gilbert. The film follows Katrina Gilbert, a mother of three who experiences numerous setbacks in her struggle to secure economic stability for herself and her children.

Katrina works as a Certified Nursing Assistant (CNA) where she makes $9.49 an hour. Similar to many single mothers living in poverty, she is forced to make hard choices about things like which bills to pay and what healthcare services to forego so that she has enough money left to provide the necessities for her family. She wants a better life for her kids, and decides to go back to school to help her achieve that goal, only to have her financial aid application rejected.

Katrina is one of millions of single mothers living in poverty in the United States. Stories like hers are not uncommon, even here in Minnesota. Below is a selection of statistics from the economics section of the Status of Minnesota Women and Girls report (2014):

  • Women make up the majority (60%) of low-wage workers in Minnesota, many of whom do not have access to paid sick days.
  • Sixty-seven percent (67%) of female-headed households in rental housing and 49% of those who own their home are paying costs that exceed the recommended 30% of their income.
  • Minnesota has the third highest cost in the United States for quality childcare, making it difficult for working mothers and families to balance the responsibilities of work and family.
  • There are more than twice as many Minnesota elder women living in poverty than men (38,463 compared to 16,915).

These statistics, and the full report linked above, show how far we have left to go in the fight for economic justice.

Legislation like the Women’s Economic Security Act (WESA), signed into law during the last legislative session, is a good start. Minnesota NOW will continue to fight for economic justice, and we’d love for you to join us.

  1. Follow us on Facebook and Twitter, and share with your friends.
  2. Join our Action Committee. We’re got big plans for 2015, and we need a team of fired up advocates to help us out!
  3. Make a donation. We are a volunteer run organization, and make the most of every dollar.

To learn more about Minnesota NOW and to become a member go to our website.

Equality & Safety: What the ERA Means to Me

As a self identified feminist, and an outspoken one at that, I often find myself in conversations concerning the validity of ‘modern feminism’. Many people think that women are ‘basically equal’ to men now, so there’s no need for feminism. That is absolutely not the case. Not only are women economically unequal to men in this country, but our rights aren’t even solidified in the constitution. This means that our rights can essentially be repealed by court decisions and in Congress if they so choose. So I thought in light of the upcoming Women’s Equality Day, I would like to take a minute and write about what constitutional protection through the ERA means to me and why I find it important.

First off, the ERA or Equal Rights Amendment reads as follows:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.

When I first heard about the ERA, I assumed it was going to be a long and drawn out packet of information. As you can see, it is not. The fact that the ERA is one sentence is symbolic for me. We’ve been trying to get this passed since 1923. One sentence added to the constitution would give all women equal constitutional rights, and 90 years later we’re still struggling to make it happen.

Women’s equality in this country still has a long way to go. Ask any woman who regularly goes out in public and I can guarantee you she’ll have at least one ‘street harassment’ story to tell you. It is unsafe for women to go for a run or jog alone at night, to walk to their car, or even to walk home after a night out because of the underlying threat of violence. And if that violence does occur, it is often the woman and not the attacker who is blamed because of what they were wearing, what they were drinking, or a litany of other offenses that you ‘should have known better’ than to do.

On top of that, women still make anywhere from 75-85 cents on the dollar (average is about 77 cents) to what men make in comparable roles with comparable experience. This gap is even more severe for women of color, who average 55-64 cents for each dollar. That’s economic inequality, and despite legislation that expressly forbids that kind of discrimination, it still happens. Passing the ERA will give teeth to the laws we already have in place, and will formally recognize the rights of women as equal to the rights of men.

These are just a few examples of why the ERA is important to me. Can you think of other reasons why you think it’s important? Leave them in the comments or Tweet them to us @Minnesota_NOW!

By the way, if you want to join us in a discussion about the ERA, join us on August 26th at Urban Growler! See the details here.

Interview – Representative Andrea Kieffer

By: Colette Hayward

Andrea Kieffer is a Minnesota Politician and is currently serving in the House of Representatives. She is a member of the Republican Party and represents District 53B, including cities in Washington County. A University of Minnesota Alum, she is seen as an active figure in her community with many people having positive things to say about her. Representative Kieffer was also one of only four Republican House Representatives who voted to legalize same-sex marriage back in May of 2013.

In March of 2014 I attended my first legislative hearing; part of my internship involves public policy and I was excited to attend and see what all a hearing entailed. I researched a little bit of information about what I should expect and later that week I sat in on the Women’s Economic Security Act (WESA) committee hearing. If I’m being totally honest I wasn’t 100% sure what was going on the entire time, but it was interesting to listen to the brave souls who attended so they could share their stories in favor of the bill. When I was conducting my research, I read an article about a comment from Representative Andrea Kieffer regarding women that ended up becoming national news. Although I don’t think she intended for the comment to be taken so negatively many people did take it that way and that is when I decided I wanted a chance to talk with her.

Now, for the record, I will say that the purpose of this blog is not to shame her but rather to address the comment that was made and clarify her thoughts. Representative Kieffer was quick to respond to my emails inquiring about an interview and followed up with a phone call. Representative Kieffer made the point that there are two sides to every story, and as with almost everything in life, this is a thought to live by. If you haven’t heard exactly what she said the quote is, “We heard several bills last week about women’s issues and I kept thinking to myself, these bills are putting us back in time. We are losing the respect that we so dearly want in the workplace by bringing up all these special bills for women and almost making us look like whiners”. Now I can personally agree as a women’s studies major that a statement like this is insulting to women and coming from a woman in a power position it is hard – if not impossible – to swallow. When I questioned Representative Kieffer about this comment she said she, “still firmly believes it puts women back in the workforce,” but that it was early in the morning and she shouldn’t have used the word whiners.

We discussed a few other legislative topics and there were several aspects of the WESA bill that Representative Kieffer agreed with. She also discussed the minimum wage increase with me and made some interesting points. Regarding the WESA bill, she said that we need to remember the difference between equal pay and comparable pay, and what WESA asked for is comparable pay. I understand that equity pay is already common law, but I don’t think men and women are paid equally. She said the numbers are exaggerated when people say the pay gap is around 15%-20%, and that the reality is actually closer to 5%-6%. Whether the numbers are exaggerated or not a 5% pay gap is still one worth fighting for and I think that it is still an area that should be prioritized by politicians. Representative Kieffer sent me the clip of the hearing so I could hear for myself what she and others had said. I did listen to it and it helped solidify what I would put in my blog.

The moral of this interview is that we need to remember to listen to both sides of the story. Whether or not you still feel the same way after hearing both sides is irrelevant, but at least you are informed. I appreciate Representative Andrea Kieffer taking time out of her day to have an interview with me, and although we may not see everything in the same way, I can at least say I know both sides of the story. I hope this was beneficial for others as well and with WESA being signed into law I hope this blog post will help you better understand how discussions regarding the bill were framed.