Alabama adopts equal pay law
Alabama generally has a reputation as being very favorable to employers and less protective of employees. The state adheres to the at-will doctrine of employment law more adamantly than most other states.
But that changed on June 10, 2019 when Governor Kay Ivey signed a bill passed by the Alabama Legislature that adds protections for employees against sex and race discrimination. The law is called the Clark-Figures Equal Pay Act (Alabama Act 2019-519, which started out as House Bill 225 during the 2019 legislative session).
The law provides that employers cannot pay their employees wage rates less than the rates paid to employees of another sex or race if the rate is for—
- Equal work.
- Within the same establishment.
- For jobs that require equal skill, effort, education, experience, and responsibility.
- With performance under similar working conditions.
However, employers can pay different rates if the rate of pay is based on one of the following:
- Seniority system.
- Merit system.
- System that ties earnings to quantity or quality of production.
- System that bases the difference in pay on a factor other than race or sex.
Heightened pleading standard will be applied
If employees file lawsuits based on the provisions of the act, they must “particularly plead” that they were paid less than someone else for equal work despite equal skill, equal effort, equal education, equal experience, and equal responsibilities. They must also “particularly plead” that the difference in pay rate was not permissible—that is, it was not based on a seniority system, merit system, quantity or quality of production, or something other than race or sex.
The expression “particularly pled” is what we lawyers call a heightened pleading standard. It means that plaintiff can’t assert a claim by using conclusory allegations, but must state a claim in specific detail. Although the exact meaning of this expression will ultimately have to be decided through litigation, we expect Alabama courts will require the plaintiff to identify the person who was paid more and exactly how much more. The plaintiff will probably also have to show exactly how the other persons’s job requires the same skill, effort, education, experience, and responsibilities as the plaintiff’s job.
In short, it’s probably going to be hard for an employee to win a case under this act.
Recovery limited
The act also contains an unusual provision about recovery under both state and federal law. As a result of this law, a plaintiff can potentially sue in both federal and state court for race or sex discrimination. So that sets up a situation in which a plaintiff may file two different lawsuits for a single act of discrimination and potentially be awarded money twice:
- For violating this new Alabama equal pay act by a state court.
- For violating the federal Equal Pay Act of 1963 by a federal court.
But if that double recovery were to occur, this act requires the plaintiff to return the lesser award to the employer he or she sued and won against.
Inquiries about wage history
The act also provides that an employer can’t retaliate against or refuse to interview, hire, promote, or employ an applicant who won’t divulge his or her wage history. This sets up a rather intriguing catch-22 for employers. You’ll notice that the act doesn’t prohibit the employer from asking about wage history. But if the employer bases a employment decision on that failure to divulge, then the employer runs the risk of being sued for discrimination or retaliation.
So when dealing with wage history, an employer has three options:
- Ask about the wage history and run the risk of being sued.
- Ask about the wage history on the job application, but with a disclaimer: “Refusal to provide this information will not and cannot be a basis for making any hiring decisions related to this application.” This may somewhat reduce the risk of a lawsuit, but probably not by much.
- Don’t ask about the wage history and thereby not make an employment decision (especially the initial starting wage or salary) with the same degree of precision as might be the case if the employer had the wage history.
Recommendation
We suggest that employers reword the wage-history question. Instead of asking for wage history, ask how much the applicant wants or expects to be paid.
Final Observation
When this new law becomes effective on October 1, 2019, Alabama employment law will be changed in a significant way. We are likely to see an uptick in state court lawsuits alleging wage disparities. This possibility is certainly not welcome news for employers.
Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.
© 2019
