Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Most businesses entering into contracts in excess of $500,000 with the state of Minnesota are required to obtain an Equal Pay Certificate from the Minnesota Department of Human Rights (MDHR) as a condition of doing business with the state. The required elements of an application for certification are set forth in section 363A.44 of the Minnesota statutes.
Employers need to know that the current version of the application for certification, as published by the MDHR on its website (accessible here), does not comply with the statutory language. In particular, the statute requires covered contractors to certify:
that the average compensation for its female employees is not consistently below the average compensation for its male employees within each of the major job categories in the EEO1 employee information report for which an employee is expected to perform work under the contract, taking into account factors such as length of service, requirements of specific jobs, experience, skill, effort, responsibility, working conditions of the job, or other mitigating factors.
The MDHR’s version of the form, however, purports to require a broader certification that, on its face, would appear to apply to all of the contractor’s employees—regardless of whether those employees are performing work under the contract—and does not include all of the statutorily enumerated factors. In particular, the current version of the form on the Department’s website seeks a representation that:
[t]he average compensation for female employees is not consistently below the average compensation for male employees, taking into account mitigating factors, within each of the major job categories in your EEO-1 report. If you are not required to file an EEO-1 report, taking into account mitigation factors, the average compensation for female employees is not consistently below the average compensation for male employees within your organization.
The first clause is inconsistent with the statutory language and the statute does not support the addition of the second clause.
The statute requires the MDHR to issue an equal pay certificate of compliance upon receiving a statement signed by the Chairperson of the Board or Chief Executive Officer of the business that includes the required elements. Contractors are not required to use the MDHR’s form for this purpose. Accordingly, given the substantial differences between the MDHR’s form and the actual statutory requirements, covered contractors should think twice before using the Department’s form to comply with this requirement and instead consider adapting the Department’s form to mirror the statutory language.