Thought Leadership on Equal Pay Regulatory and Legislative Actions

Seyfarth has been a significant thought leader on equal pay issues with respect to regulatory and legislative actions. Following Seyfarth partner Camille Olson’s March 19, 2021, testimony, “Fighting for Fairness: Examining Legislation to Confront Workplace Discrimination,” before the House Committee on Education and Labor, Subcommittee on Civil Rights and Human Services and Subcommittee on Workforce Protections, Olson, along with Richard Lapp and Lawrence Lorber, provided counsel on equal pay issues to a number of business organizations, including the US Chamber of Commerce.

For example, following the OFCCP’s issuance of Directive 2022-01 on the subject of Pay Equity Audits, Seyfarth’s Olson, Lorber and Lapp served as Of Counsel to the US Chamber in drafting their May 5, 2022 letter to OFCCP Director Yang opposing the Directive and describing the flaws contained in the Directive and in subsequent discussions with the OFCCP regarding the Directive. That letter was introduced by Ranking Member Fulcher of the House Subcommittee on Workforce Protections as part of the record of the House Hearing “Examining the Policies and Priorities of the EEOC and the OFCCP” in which OFCCP Director Jenny Yang and EEOC Chair Burrows testified.

On August 18, 2022, the OFCCP released a revised directive 2022-01 regarding a federal contractor's obligation to turn over privileged compensation analyses as part of an OFCCP audit. The revised directive 2022-01 describes the process that is applicable that preserves the privilege, stating that "OFCCP ... will not require the production of privileged communications or attorney work product," but instead describes the various levels and types of information a contractor is to provide to demonstrate they have conducted proper compensation analyses as required by regulation. In addition, the revised enforcement directive abandons the term "pay equity audit" in favor of the more neutral and regulatorily supported "compensation analysis" to "avoid any confusion regarding the nature of a contractor's obligations under" the regulations.  Finally, a contractor will only be subject to a negative inference of non-compliance if they assert that all of the categories of information identified in the enforcement directive are subject to attorney-client privilege. The revised enforcement directive is in effect as of August 18, 2022.  Contractors facing OFCCP audits should be able to rely on this to protect their attorney-client privileged work product consistent with the revised directive.