Summer Brings Equal Pay for Equal Work for Mississippi Workers

Mississippi employers will have to pay men and women equally starting July 1 unless an exemption applies.

The “Mississippi Equal Pay Act for Equal Pay Work” requires that businesses with a minimum of 5 employees pay the same wages to men and women who work:

• Full-time jobs
• “Under similar working conditions”

Specifically pertaining to jobs that require “Equal:

• Skill
• Education
• Effort
• Responsibility”

Before the governor signed the measure, the state’s attorney general, Lynn Fitch, said in a statement that the legislature had “taken a critical step forward for empowering women by passing a law promoting equal pay for equal work for Mississippi women.”

Fitch noted that the Magnolia state “will join the rest of the nation in promoting the basic fairness of equal pay” when the bill becomes law.

Mississippi is the last state to enact such a requirement.

Republican Gov. Tate Reeves signed the bill into law on April 21, 2022.

Who has to comply with Mississippi’s equal pay law?

Employer means any person who employs 5 or more employees, according to the new law.

Who is eligible for Mississippi’s equal pay law?

An employee is a person who works 40 or more hours a week and includes individuals employed by the state and its political subdivisions.

Are there exceptions?

Yes. Several exceptions apply. Differences in pay can be based on:

• A merit system
• A seniority system
• A system that measures earnings by quantity or quality of production
• A factor other than sex

What is a factor other than sex?

A “factor other than sex” allows employers to consider elements such as:

• The salary history or employment history shown by the employee compared to members of the opposite sex also employed by the business
• The degree of competition with other employers for the employee’s services
• Whether the employee tried to negotiate for higher wages

Equal pay disputes

Employees must choose between bringing a claim under the federal Equal Pay Act or state law.

The deadline for filing a lawsuit under the state’s law is two years from when a worker “knew or should have known” about pay discrepancies.

An employee who can prove that an employer discriminated against them on the basis of sex can recover:

• Reasonable attorney’s fees and costs
• Prejudgment interest
• Backpay

The civil suit should be filed in the circuit court for the county where the alleged violation occurred.

No retaliation

Employers cannot retaliate against employees who make an equal pay claim.

Salary reduction to comply with the law

Employers can’t reduce worker salaries to comply with the law.

Differences between the Mississippi law and other equal pay laws

Legal experts have noted several differences between Mississippi’s and other state laws.

Annette Tyman, a partner at Seyfarth Shaw, noted in a report by MSN that the measure is not consistent with the trend in similar state laws as well as employer practice. She said many national employers have adopted a policy not to ask job applicants about prior salary information.

Jackson Lewis attorneys Christopher Chrisbens and Christopher Patrick also outlined several differences between the Mississippi law and other state laws, including that:

• It is based solely on gender and does not refer to race-based pay differences
• It does not forbid employers from inquiring about salary history
• It does not require pay transparency

Criticism

The measure received its share of criticism before it became law.

Opponents said there was no need for a state law to guarantee equal pay with federal laws on the books, such as the:

• Equal Pay Act of 1963
• Lilly Ledbetter Fair Pay Act of 2009

Criticism also came from a group that advocates for equal pay. Cassandra Welchlin, leader of the Mississippi Black Women’s Roundtable, described the measure as the “worst law in the country” and said it is harmful because it allows employers to pay women less than men based on previous payment history.

Salary history bans have grown in popularity over the last couple of years. The bans forbid employers from requesting salary history from job applicants.

Some bans go even further and prohibit employers from relying on prior pay history when determining compensation. This holds true even if the information has been discovered or volunteered during the hiring process.

Proponents of the bans argue that employer use of a worker’s earlier salary history perpetuates wage inequities in several instances, including:

• Against women and minorities, who are often paid less than White men
• Against workers who have had a lower-paying job in their past

According to HR Dive, as of February 2022, 21 states have salary history bans, and there are 21 local salary history bans.

However, the Mississippi state legislator who wrote and sponsored the bill, Angela Cockerham, has disagreed with claims that the legislation perpetuates discrimination. She also said the bill received bipartisan support and passed overwhelmingly.

Pay disparity

According to the National Women’s Law Center, women in Mississippi typically make 75 cents for every dollar paid to men. By comparison, women make 82 cents for every dollar that a man makes on a national level, NWLC said.

That gap grows worse for Black and Latina women in Mississippi, who typically make 56 cents for every dollar paid to White men. Asian women in Mississippi generally are paid 61 cents for every dollar paid to a White male.

Most other states have had an equal pay law for several years. Mississippi was the lone holdout for an equal pay measure after Alabama enacted its equal pay law in 2019. Alabama’s state law, however, is more restrictive than the Mississippi law. Alabama’s gender pay equity law bans pay discrimination based on race and gender and blocks employers from requiring job applicants to disclose their salary history.

Pay audits

Employers faced with creating parity in wages should consider conducting pay audits to help uncover race and gender-based pay discrepancies.

In a guide to self-audits, the National Committee on Pay Equity (NCPE) has recommended steps to take when conducting pay reviews.

NCPE suggests that employers:

• Conduct a self-audit of the hiring process with an eye toward whether it seeks diversity in qualified applicants
• Evaluate your system of compensation for equity
• Evaluate your system of compensation to determine if the market rate is paid and applied across-the-board
• If needed, create a new system for evaluating jobs. Are job descriptions up-to-date?
• Examine your compensation system. Is pay comparable for similar jobs?
• Review data for new hires (including men, women, and minorities)
• Examine whether men, women, and minorities are provided equal opportunity to earn bonuses and commissions
• Assess how raises are decided. Does the method for determining raises apply to all workers?
• Assess whether employees are provided equal opportunity for training, development, and promotions
• Implement changes where needed, maintain equity, and share your success

Equal pay for equal work still needs attention

Federal laws also prohibit pay discrimination. Employers are not allowed to pay different wages based on gender to men and women who perform jobs that require equal skill, effort, and responsibility and are performed under similar working conditions under the Equal Pay Act. The law was signed into law in June 1963, almost 60 years ago. Title VII of the Civil Rights Act of 1964 also prohibits sex-based pay discrimination.

Yet, with equal pay restrictions in place at the state and federal levels, employers are still being hit with accusations of gender-based pay discrimination.

Google recently agreed to pay $118 million to settle a class action gender discrimination lawsuit that has been in the courts since 2017.

About 5,500 female employees of the high-profile tech company in 236 job titles in California signed onto the lawsuit. The agreement needs to get court approval to be final.

Earlier this year, the U.S. Soccer Federation agreed to pay the U.S. Women’s national soccer team $24 million to settle claims it paid female soccer players less than it paid male soccer players.

In addition to conducting pay audits, employers should consider adopting a policy that equal work for equal pay is the norm. Exceptions may exist in circumstances where a legally approved exception has been identified.