INTERPRETATIONS-PART 800 differential can be shown to be attributable to a which appear to be available only to employees of one sex will, however, be carefully examined to determine whether such programs are, in fact, bona fide. In an establishment where a differential is paid to employees of one sex because, traditionally, only they have been considered eligible for promotion to executive positions, such a practice, in the absence of a bona fide training program, would be a discrimination based on sex and result in a violation of the equal pay provisions, if the equal pay standard otherwise applies. Section 800.149.-Examples-"head of household". Sometimes differentials in pay to employees performing equal work are said to be based on the fact that one employee is head of a household and the other, of the opposite sex, is not. In general, such allegations have not been substantiated. Experience indicates that where such factor is claimed the wage differentials tend to be paid to employees of one sex only, regardless of the fact that employees of the opposite sex may bear equal or greater financial responsibility as head of a household or for the support of parents or other family dependents. Accordingly, since the normal pay practice in the United States is to set a wage rate in accordance with the requirements of the job itself and since a "head of household" or "head of family" status bears no relationship to the requirements of the job or to the individual's performance on the job, the general position of the Secretary of Labor and the Administrator is that they are not prepared to conclude that any differential allegedly based on such status is based on a "factor other than sex" within the intent of the statute. Section 800.150.-Examples-temporary and part-time employees. The payment of different wage rates to permanent employees than to temporary employees such as may be hired during the Christmas season would not necessarily be a violation of the equal pay provisions even though equal work is performed by both groups of workers. For example, no violation would result where payment of such a differential conforms with the nature and duration of the job and with the customary practice in the industry and the establishment, and the pay practice is applied uniformly to both men and women. Generally, employment for a period longer than one month will raise questions as to whether the employment is in fact temporary. Likewise, the payment of a different wage to employees who work only a few hours a day than to employees of the opposite sex who work a full day will not necessarily involve noncompliance with the equal pay provisions, even though both groups of workers are performing equal work in the same establishment. No violation of the equal pay standards would result if, for example, the difference in working time is the basis for the pay differential, and the pay practice is applied uniformly to both men and women. However, if employees of one sex work 30 to 35 hours a week and employees of the other sex work 40 to 45 hours, a question would be raised as to whether the differential is not in fact based on sex since different rates for part-time work are usually for work weeks of 20 hours or less. Section 800.151.-Examples-employment cost factors. A wage differential based on claimed differences between the average cost of employing the employer's women workers as a group and the average cost of employing the men workers as a group does not qualify as a differential based on any "factor other than sex," and would result in a violation of the equal pay provisions, if the equal pay standard otherwise applies. To group employees solely on the basis of sex for purposes of comparison of costs necessarily rests on the assumption that the sex factor alone may justify the wage differential-an assumption plainly contrary to the terms and purpose of the Equal Pay Act. Wage differentials so based would serve only to perpetuate and promote the very discrimination at which the Act is directed, because in any grouping by sex of the employees to which the cost data relates, the group cost experience is necessarily assessed against an individual of one sex without regard to whether it costs an employer more or less to employ such individual than a particular individual of the opposite sex under similar working conditions in jobs requiring equal skill, effort, and responsibility. [31 F.R. 2657. Feb. 11, 1966] Sections 800.152-800.159.-[Reserved] RELATION TO OTHER LAWS Section 800.160.-Relation to other equal pay laws. The provisions of various State or other equal pay laws may differ from the equal pay provisions set forth in the Fair Labor Standards Act. There is also other Federal legislation which deals broadly with discrimination by employers against individuals because of sex, including discrimination on such grounds with respect to compensation for employment (see Civil Rights Act of 1964, 78 Stat. 241, Title VII). Where any such legislation. and the equal pay provisions of the Fair Labor Standards Act both apply, the principle established in section 18 of the latter Act will be controlling. No provisions of the Fair Labor Standards Act will excuse noncompliance with any State or other law establishing equal pay standards higher than the equal pay standards provided by section 6(d) of the Fair Labor Standards Act. On the other hand, compliance with other applicable legislation will not excuse noncompliance with the equal pay provisions of the Fair Labor Standards Act. Section 800.161.-Higher State minimum wage. State laws providing minimum wage requirements may affect the application of the equal pay provisions of the Fair Labor Standards Act. If a higher minimum wage than that required under the Act is applicable to a particular sex pursuant to State law, and the employer pays the higher State minimum wage to male or female employees, he must also pay the higher rate to employees of the opposite sex for equal work in order to comply with the equal pay provisions of the Act. Section 800.162.-Overtime payments required by State law. The application of the equal pay provisions of the Act may also be affected by State legal requirements with respect to overtime pay. If as a result of a State law, female employees in an employer's establishment are paid overtime premiums for hours worked in excess of a prescribed maximum in any workday or workweek, the employer must pay male employees performing equal work in such es tablishment the same overtime premiums when they work such excess hours, in order to comply with the equal pay provisions of the Fair Labor Standards Act. This would be true even though both the male and the female employees performing equal work are otherwise qualified for exemption from the overtime pay requirements of section 7 of the Fair Labor Standards Act. It would not be true, however, unless the overtime requiring the premium pay is actually being worked by the women. Section 800.163.-Other laws not applying equally to employment of both sexes. In making a determination as to the application of the equal pay provisions of the Fair Labor Standards Act, legal restrictions in State or other laws upon the employment of individuals of a specified sex, with respect to such matters as hours of work, weight-lifting, rest periods, or other conditions of such employment, will not be deemed to make otherwise equal work unequal or be considered per se as justification for an otherwise prohibited differential in wage rates. For example, under the Act, the fact that a State law limits the weights which women are permitted to lift would not justify a wage differential in favor of all men regardless of job content. The Act would not prohibit a wage differential paid to male employees whose weight-lifting activities required by the job involve so significant a degree of extra effort as to warrant a finding that their jobs and those of female employees doing similar work do not involve equal work within the meaning of the Act. However, the fact that there is an upper limit set by State law on the weights that may be lifted by women would not justify a wage differential to male employees who are not regularly required to lift substantially greater weights or expend the extra effort necessary to make the jobs unequal. The requirement of equal pay in such situations depends on whether the employees involved are actually performing "equal work" as defined in the Act, rather than on legal restrictions which may vary from State to State. INTERPRETATIONS-PART 800 ENFORCEMENT Section 800.164.-Investigations and compliance assistance. The Wage and Hour and Public Contracts Divisions are charged with the administration of the Fair Labor Standards Act, including the equal pay provisions. Investigations under the Act will therefore include such inquiry as may be necessary to obtain compliance with the equal pay provisions in cases where they are applicable. As provided in section 11(a) of the Act, authorized representatives of the Divisions may investigate and gather data regarding the wages, hours and other conditions and practices of employment. They may enter establishments and inspect the premises and records, transcribe records, and interview employees. They may investigate whatever facts, conditions, practices, or matters are considered necessary to find out whether any person has violated any provisions of the Act or which may aid in enforcement of the Act. Wage-Hour investigators will advise employers regarding any changes necessary or desirable regarding payroll, recordkeeping and other personnel practices which will aid in achieving and maintaining compliance with the law. Complaints, records, and other information obtained from employers and employees are treated confidentially. Section 800.165.-Recordkeeping requirements. Records required to be kept by employers having employees subject to the equal pay provisions under section 6(d) of the Act are set forth in sections 516.2, 516.6, and 516.29 of this chapter. Section 800.166.-Recovery of wages due; injunctions; penalties for willful violations. (a) Pursuant to section 6(d) (3) of the Act, wages withheld in violation of the equal pay provisions have the status of unpaid minimum wages or unpaid overtime compensation under the Fair Labor Standards Act. This is true both of the additional wages required by the Act to be paid to an employee to meet the equal pay standard, and of any wages that the employer should have paid an employee whose wages he reduced in viola tion of the Act in an attempt to equalize his pay with that of an employee of the opposite sex performing equal work, on jobs subject to the equal pay standards. (b) The following methods are provided under sections 16 and 17 of the Act for recovery of unpaid wages: The Administrator of the Wage and Hour and Public Contracts Divisions may supervise payment of the back wages and, in certain circumstances, the Secretary of Labor may bring suit for back pay upon the written request of the employee. The employee may sue for back pay and an additional sum, up to the amount of back pay, as liquidated damages, plus attorney's fees and court costs. The employee may not bring suit if he has been paid back wages under supervision of the Administrator, or if the Secretary has filed suit to collect the wages. The Secretary may also obtain a court injunction to restrain any person from violating the law, including the unlawful withholding by an employer of proper compensation. A 2-year statute of limitations applies to the recovery of unpaid wages, except that an action on a cause of action arising out of a willful violation may be commenced within 3 years after the cause of action accrued. [32 F.R. 2381, February 3, 1967] (c) Willful violations of the Act may be prosecuted criminally and the violator fined up to $10,000. A second conviction for such a violation may result in imprisonment. (d) The equal pay provisions are an integral part of section 6 of the Act, violation of any provision of which by any person, including any labor organization or agent thereof, is unlawful, as provided in section 15(a) of the Act. Accordingly, any labor organization, or agent thereof, who violates any provision of section 6(d) of the Act is subject to injunction proceedings in accordance with the applicable provisions of section 17 of the Act. Any such labor organization, or agent thereof, who willfully violates the provisions of section 15 is also liable to the penalties set forth in section 16(a) of the Act. |