On Wednesday, Sen. Majority Leader Harry Reid (D-NV) filed a cloture motion to proceed with consideration of the Paycheck Fairness Act (S. 3772). This procedural action sets up a vote on the bill – which would, among other things, amend the Fair Labor Standards Act (FLSA) to provide for unlimited compensatory and punitive damages in gender-based wage discrimination cases and weaken an employer’s affirmative defense against such claims – when the Senate returns from the recess for upcoming elections.

Business advocates have been stepping up their lobbying efforts against this legislation’s passage. Testifying at a recent Congressional hearing on wage disparity, one witness claimed (pdf) that the measure “would spawn a tidal wave of lawsuits and enmesh employers in endless litigation. The bill is a full-employment act for lawyers . . .” Among the criticized provisions was the elimination of the “establishment” requirement that employees must work in the same place of employment for wage comparison purposes. As a result, an employer would be required to pay all workers who perform the same or similar function the same wage, regardless of the location’s cost of living or desirability. Additionally, an employer would be permitted to defend a gender pay disparity only if the neutral criteria used to make the pay decision was a “business necessity” – an often difficult argument to make. Moreover, the legislation’s provision that employees must “opt-out” of instead of “opt-in” to a class action lawsuit would increase the incidence of such suits.

In addition, the bill would reinstate the Equal Opportunity (EO) Survey, which would permit the Office of Federal Contract Compliance Programs (OFCCP) to obtain wage-related information from federal contractors and subcontractors, and require the Equal Employment Opportunity Commission (EEOC) to similarly collect and analyze wage data from employers, increasing a business’s administrative burden.

Sixty votes are needed to end debate on proceeding to the measure, and vote is expected to be very close.

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