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Posts Tagged ‘EPA’

Seldom Defeated on the Field, U.S. Women’s National Soccer Team Suffers Tough Setback in Equal Pay Lawsuit

Posted on: May 5th, 2020

By: Jeffrey A. Hord

The iconic U.S. Women’s National Soccer Team (USWNT) is rarely handed a defeat on the soccer pitch, having won four FIFA Women’s World Cup titles and four Olympic gold medals in the past 30 years. However, last Friday, a federal district court judge dismissed the USWNT’s claims under the Equal Pay Act (EPA) in its ongoing lawsuit against the United States Soccer Federation (USSF).  

In its lawsuit, the USWNT alleged different types of discriminatory treatment, but the core of the lawsuit is that they were paid less than the U.S. Men’s National Soccer Team for performing similar work.  Asserting that the treatment violated the EPA (and Title VII), the USWNT sought more than $66 million in damages…or, the amount the men would have earned if the Men’s National Team had achieved the exact level of success the USWNT has attained in recent years.

In its motion for summary judgment, USSF argued that the players’ claims should be dismissed because both the Men’s National Team and the Women’s National Team had negotiated their own pay and working conditions in a series of collective bargaining agreements (CBA) which reflected the two groups’ different preferences.  For example, the USWNT’s CBA emphasized guarantees for the players in the form of fixed salaries, whereas the men’s CBA created a compensation structure much more heavily based on incentives. 

In granting USSF’s motion, Judge R. Gary Klausner effectively ruled that the USWNT voluntarily chose their own payment structure when negotiating the CBA and, while it may have turned out to be less lucrative, they are bound by the terms of the CBA. Judge Klausner also dismissed that portion of the USWNT’s Title VII claim which cited “turf disparity” as an example of allegedly unequal working conditions.  The Court found that, based on the USWNT’s evidence, there was no way a jury could conclude USSF had “intentionally discriminated against the USWNT” by subjecting them to substandard turf surfaces more frequently than the Men’s National Team. 

The only claims to survive Friday’s ruling were the players’ claims about unequal treatment with respect to travel conditions (specifically, charter flights and hotels) and support services (specifically, medical and training support).  Unless the case resolves, the case will now proceed to trial on those issues.

While it remains to be seen whether Judge Klausner’s Order will survive appeal, this ruling nonetheless reinforces a well-settled legal principle: courts will not allow a party to a contract – even Olympic heroes and World Cup champions – to escape the terms of a contract knowingly agreed upon.

[1] Under the EPA, female plaintiffs have the burden of showing they performed substantially equal work as their male counterparts, under similar working conditions, and that the male workers were paid more.

[2] A spokesperson for the USWNT has already confirmed the players’ intention to file an appeal to the Ninth Circuit.

The EPA Acts, Kind of, on Asbestos

Posted on: April 26th, 2019

By: Koty Newman

On April 17, 2019, the EPA finalized a significant new use rule (“SNUR”) governing asbestos use. The SNUR ensures that any discontinued uses of asbestos will not re-enter the marketplace without the EPA’s review. The EPA explains that this will close a loophole in its regulatory scheme for asbestos. Thus, if a manufacturer or processor would like to reintroduce asbestos into any product that is now free of asbestos, but contained it in the past, the reintroduction of asbestos would be subject to EPA review. Under the SNUR, the following uses for asbestos are examples of uses subject to EPA review: adhesives, sealants, roof and non-roof coatings, cement products, high-grade electrical paper, pipeline wrap, and any other building material. The EPA characterizes these uses as neither ongoing nor already prohibited under the Toxic Substances Control Act. The SNUR keeps prior asbestos prohibitions in place and does not amend them in any way. The SNUR will be effective sixty days after the date it is published in the Federal Register.

Critics of the SNUR say it does not go far enough. The Asbestos Disease Awareness Organization likens the SNUR to a smokescreen, as it only applies if companies wish to reintroduce to the marketplace a product that is already obsolete. The Asbestos Disease Awareness Organization called for a complete ban of asbestos.

The SNUR is not likely to have a great impact on business because industries are already utilizing economically viable products without any significant need for the reintroduction of asbestos. Even so, if a company wishes to reintroduce asbestos to a product, it must notify the EPA at least ninety days prior to initiating manufacturing or processing of the product that falls under the SNUR.

Regarding ongoing uses of asbestos in the United States, the EPA is evaluating those uses in the context of its separate asbestos risk evaluation. Some uses that the EPA is looking at in the context of its risk evaluation, but that are not affected by the SNUR, are sheet gaskets, oilfield brake blocks, and aftermarket automotive brakes/linings. If the EPA finds that a use constitutes an unreasonable risk of injury to health or the environment, the EPA could decide to prohibit the use.

If you have any questions or would like more information, please contact Koty Newman at [email protected].

Leveling the Paying Field

Posted on: April 5th, 2018

By: Michael M. Hill

The Eleventh Circuit has held differences in work experience and salary history—factors many employers traditionally consider in setting pay rates—may not justify differences in pay between employees performing the same job.

Bowen v. Manheim Remarketing, Inc., No. 16-17237 (11th Cir. Feb. 21, 2018), was a suit under the Equal Pay Act (“EPA”), which requires employers to pay men and women the same for performing equal work on jobs requiring equal skill, effort, and responsibility, and performed under similar working conditions.  The plaintiff in Bowen was a woman who was promoted to a management position previously held by a man, and she alleged she was paid less than he was because of her sex.

The court, however, threw the case out before trial and granted judgment in favor of the employer because the employer showed that the male comparator, when he started in that same position, had been with the employer for twice as long as the plaintiff (6 years to her 3 years).  He also had come into the job from another position earning the same salary, whereas the plaintiff was promoted from a lower-paying position.  (One defense to an EPA claim is that the difference in pay was based on some “factor other than sex.”)

But the Eleventh Circuit reversed the trial court’s judgment on appeal and held the case should go to trial.  Despite these objective and undisputed gender-neutral factors between the two employees, the appellate court held that a jury still may find the employees’ sex played some role in the reason for the pay disparity.

One surprising point about the Eleventh Circuit’s holding is its reasoning that, even if the difference in work experience and salary history could justify starting the plaintiff off at a lower salary, these same factors would not justify maintaining this pay difference once she was performing the job proficiently.

Bowen should serve as a reminder to employers to review their payroll to ensure that men and women performing the same job are being paid equitably.  Factors that may justify a difference in pay at one point might not be sufficient further down the road.

In addition, while the EPA is a federal law, more and more states and cities are passing their own pay equity laws, many of which impose different obligations upon employers, such as prohibitions against asking job applicants their salary history, requiring employers to fully explain even the smallest differences in pay, or even requiring pay equity for protected classes other than gender (such as race, national origin, age, etc.).  As such laws are expected to become more commonplace, now is the time to get ahead of the curve.

If you have any questions or would like more information on navigating pay equity laws, please contact Michael M. Hill at [email protected].