David Aylor On New Equal Pay Laws

The #MeToo movement has left no stone unturned in its quest for workplace and domestic gender equality. Many companies have taken this moment to revisit their harassment policies and ensure that all staff members are aware of appropriate behavior and channels for reporting infractions against the company’s policies and the law.

Zooming out a little, the #MeToo movement has also taken on workplace gender discrimination and disparities in the gender wage gap. Now, cities and states are enacting laws that prohibit companies for asking for a prospective employee’s past salaries. In theory, the laws will help prevent companies for offering lower salaries to people who’ve made less in the past. It’s common practice for companies to use someone’s past pay as a benchmark for what they should offer the candidate. To that end, though, companies have been known to offer lower salaries to those who have made lower salaries in the past, so for the same job, two people with two different job histories may be offered different compensation. Laws banning this behavior are designed to help mitigate the gender wage gap and start to close loopholes that allow for pay discrimination.

Already, though, economists and researchers are finding that these well-intentioned laws may not be the silver bullet legislators believe them to be.

Firstly, the law does nothing to address perceived pay differences -- that is, even if an employer doesn’t know someone’s past salary, they can still venture a guess that’s rooted in bias. A hiring manager may be under the impression that a woman is accustomed to lower wages or that she is coming from a lower-paying job, and thus offer a lower salary to her than they would to a man.

Moreover, the law has been criticized for discouraging company loyalty and incentivize job-hopping. Consider a company that would like to hire from within but is expanding its search to include external candidates. The company has access to the wage and salary history of everyone within the company, but not to the wage history of their outside applicants. As such, the outsiders have a clear advantage. Already, the US business place is going through a “shake things up” phase, where major corporations bring in a hot-shot executive that hasn’t been groomed in the company’s culture and values but rather brings “new perspectives,” and unfortunately, it’s backfired rather spectacularly more than once.

The issue of the “gender wage gap” is a tricky one. Iceland recently passed a law criminalizing the act of paying two workers doing the same job different wages. Though the law was widely praised, US economists don’t foresee it working quite so well in America. The wage gap problem in the US is one of time flexibility -- that is, it’s costly to business for someone to need a lot of flexibility in their schedules to tend to families. In some industries, the flexibility isn’t quite as expensive where workers are interchangeable and one person can sub in for another; think of programmers or nurses. However, consider the real estate world. One person isn’t easily exchanged for another because of the relationship with a client and very unique knowledge.

For equal pay laws in the US to really get teeth, our culture will have to value domestic tasks the same way we value office work. Until then, laws will be mere bandaids whose succor will be superficial.

About the author: David Aylor is a Charleston-based lawyer with over ten years of experience in the field of law. His practice, Aylor Law, has been lauded for its exploits, and strives to bring an empathetic experience to its clients. David specializes in criminal defense, auto accidents, personal injury, and drug and alcohol offenses. Visit davidaylor.net for his blog on legal proceedings.