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Equal Pay is the Law, But Does it Have Teeth?

Posted by David P. Martin | Mar 08, 2023 | 0 Comments

Alabama Clarke-Figures Equal Pay Act at Ala. Code § 25-1-30 requires that an employer (inclusive of public employers) cannot pay persons performing the same work different rates of pay when they have the same skill, effort, education, experience, responsibility, and performance conditions, Men and women, and people of different races must receive the same pay for the same work if their qualifications are the same. The statute also applies in the same way to employer hiring and promotion practices. If this statute is violated, then the employee can sue to obtain the difference in wages with interest. Such a claim would have to be brought within two years. If a lawsuit is also brought with the same violations under federal law, then there will be an offset as to any subsequent recovery.

In support of this act, the State of Alabama launched a task force in August to close the gender-based wage gap throughout the state. It is called the Alabama Workforce and Wage Gap Task Force. This task force met throughout the fall and eventually narrowed its recommendations to define the term “salaries” so as to include only wages and not benefits. On its face, this would look like it would permit ongoing discrimination since benefits are often part of the wage package. However, IRS and ERISA guidelines frequently regulate this area and require equal treatment of similarly classed individuals as to eligibility for benefits. It was therefore felt not necessary to include benefits. 

The committee also discussed recommending that the damages under the statute be increased. The statute makes it difficult for individuals to bring litigation since there is no provision for attorney's fees or added damages above the wages lost. An attorney would have to take a recovery out of the wages sought. Aside from the difficulty of hiring an attorney willing to take that risk on smaller cases, there is also the problem of the individual not being made whole if the attorney is paid out of the individual's recovery. It would be beneficial if this act is to have any teeth, to actually allow for recovery of attorney's fees or a statutory fine for successful litigation. It would also be appropriate to reduce or eliminate the offset for the federal recovery. There are already mechanisms in place to allow damages for frivolous lawsuits, and so it seems that, at the least, the statute should allow for that.

My opinion is that this statute will seldom be used in litigation until the damages are increased. It is more likely federal law will be relied on since there is an offset anyway under the Alabama statute as to any recovery under federal law. This statute appears to be an example of placating a growing call for fairness in the workplace without actually putting any teeth into rectifying that unfairness. I recall a lawyer once saying, “you can write any law you want, but just let me write the ‘provided however' section.” That seems to be what happened here. The task force should continue to discuss and push for damages.

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David P. Martin

Senior & Managing Attorney

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