In 2011, then-Secretary of Labor Hilda Solis announced that the U.S. Supreme Court's decision in Wal-Mart v. Dukes would not limit the Department's ability to undertake allegations of broad, class-wide wage discrimination cases, stating "The Wal-Mart decision won't affect our ability to address pay disparities on a broad scale - even if our lawyers have to tweak some of their legal arguments based on the reasoning in that case." In the past two years, the OFCCP, DOL statisticians and Solicitor's Office have staffed up a Statistical Analysis Unit (SAU) within the agency, and refined and refocused their efforts on pay differentials within large classes of employees in same/similar job titles/classifications. The result brought about two large wage bias cases worthy of our attention last year.

In September 2013 Medtronic Interventional Vascular Inc., resolved a Notice to Show Cause with the OFCCP through a Consent Decree for nearly $300,000 on behalf of 78 Hispanic workers in the entry-level position of Senior Production Associates (SPA). The OFCCP alleged that the Hispanic workers were paid less than Caucasian employees in the Danvers, MA facility after "adjusting for differences in legitimate pay-determining factors." (OFCCP v. Medtronic Ind. and Medtronic Interventional Vascular Inc. Case No. 2013-OFC-0004). In addition to the back wages and interest required by the Consent Decree, Medtronics must increase the annual salary of each full-time Hispanic SPA included in the analysis if the t-statistics for the Hispanics in the compensation analysis is -1.96 or less.

In November 2013 the OFCCP reached a settlement with G&K Services (Los Angeles) for over $265,000 on behalf of 59 women who were steered into lower-paying light duty jobs, while males were steered into higher paying heavy duty jobs. Males also were reportedly not permitted to compete for the light duty jobs.

THOMAS HOUSTON clients are reminded that they have an affirmative obligation to review compensation for unlawful bias and take proactive steps to ensure any large differentials and/or statistical anomalies have lawful justifications. Additionally, the use of an outside agency to recruit, staff, and negotiate starting salaries does not remove the Federal contractor's legal obligation to ensure nondiscrimination in wages, job assignment, or other factors such as routes, divisions, brands, departments.

A review of AAP establishment-based THOMAS HOUSTON Comparative Salary Reports (CSRs) is one tool at your disposal to analyze compensation. Clients should also pay particular attention to the Subgroup Averages by Individual Race/Ethnicity identified toward the back of each CSR. (THOMAS HOUSTON clients receive this report with their completed Affirmative Action Plans).

Please feel free to reach out to your Project Manager or via email to info@thomashouston.com should you need more information or training on how to interpret your organization's Comparative Salary Reports (CSRs).