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differential can be shown to be attributable to a the job and with the customary practice in the factor other than sex and no violation of the equal industry and the establishment, and the pay pracpay standard will result.

Training programs tice is applied uniformly to both men and women. which appear to be available only to employees of Generally, employment for a period longer than one sex will, however, be carefully examined to one month will raise questions as to whether the determine whether such programs are, in fact, employment is in fact temporary. Likewise, the bona fide. In an establishment where a differen payment of a different wage to employees who tial is paid to employees of one sex because, tradi work only a few hours a day than to employees of tionally, only they have been considered eligible the opposite sex who work a full day will not necesfor promotion to executive positions, such a prac sarily involve noncompliance with the equal pay tice, in the absence of a bona fide training program, provisions, even though both groups of workers are would be a discrimination based on sex and result performing equal work in the same establishment. in a violation of the equal pay provisions, if the No violation of the equal pay standards would reequal pay standard otherwise applies.

sult if, for example, the difference in working time

is the basis for the pay differential, and the pay Section 800.149.-Examples "head of house

practice is applied uniformly to both men and hold”.

women. However, if employees of one sex work Sometimes differentials in pay to employees per

30 to 35 hours a week and employees of the other forming equal work are said to be based on the

sex work 40 to 45 hours, a question would be raised fact that one employee is head of a household and

as to whether the differential is not in fact based on the other, of the opposite sex, is not. In general,

sex since different rates for part-time work are such allegations have not been substantiated. Ex

usually for workweeks of 20 hours or less.
perience indicates that where such factor is
claimed the wage differentials tend to be paid to

Section 800.151.-Examples-employment cost
employees of one sex only, regardless of the fact factors.
that employees of the opposite sex may bear equal A wage differential based on claimed differences
or greater financial responsibility as head of a between the average cost of employing the em-
household or for the support of parents or other ployer's women workers as a group and the average
family dependents. Accordingly, since the normal cost of employing the men workers as a group
pay practice in the United States is to set a wage does not qualify as a differential based on any
rate in accordance with the requirements of the "factor other than sex," and would result in a vio-
job itself and since a "head of household" or "head lation of the equal pay provisions, if the equal pay
of family” status bears no relationship to the re standard otherwise applies. To group employees
quirements of the job or to the individual's per solely on the basis of sex for purposes of compari-
formance on the job, the general position of the son of costs necessarily rests on the assumption that
Secretary of Labor and the Administrator is that the sex factor alone may justify the wage differen-
they are not prepared to conclude that any differ tial-an assumption plainly contrary to the terms
ential allegedly based on such status is based on a and purpose of the Equal Pay Act. Wage differ-
"factor other than sex" within the intent of the entials so based would serve only to perpetuate and

promote the very discrimination at which the Act Section 800.150.-Examples-temporary and

is directed, because in any grouping by sex of the part-time employees.

employees to which the cost data relates, the group

cost experience is necessarily assessed against an The payment of different wage rates to perma individual of one sex without regard to whether nent employees than to temporary employees such it costs an employer more or less to employ such as may be hired during the Christmas season would individual than a particular individual of the opnot necessarily be a violation of the equal pay provisions even though equal work is performed by

posite sex under similar working conditions in jobs both groups of workers. For example, no viola

requiring equal skill, effort, and responsibility.
tion would result where payment of such a differ-

(31 F.R. 2657, Feb. 11, 1966)
ential conforms with the nature and duration of Sections 800.152–800.159.—[Reserved]



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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.

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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.



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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

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Section 800.164.-Investigations and compliance tion of the Act in an attempt to equalize his pay assistance.

with that of an employee of the opposite sex perThe Wage and Hour and Public Contracts Divi forming equal work, on jobs subject to the equal sions are charged with the administration of the pay standards. Fair Labor Standards Act, including the equal (b) The following methods are provided under pay provisions. Investigations under the Act will sections 16 and 17 of the Act for recovery of untherefore include such inquiry as may be neces

paid wages: The Administrator of the Wage and sary to obtain compliance with the equal pay pro

Hour and Public Contracts Divisions may supervisions in cases where they are applicable. As vise payment of the back wages and, in certain provided in section 11(a) of the Act, authorized circumstances, the Secretary of Labor may bring representatives of the Divisions may investigate

suit for back pay upon the written request of the and gather data regarding the wages, hours and employee. The employee may sue for back pay other conditions and practices of employment.

and an additional sum, up to the amount of back They may enter establishments and inspect the pay, as liquidated damages, plus attorney's fees premises and records, transcribe records, and in and court costs. The employee may not bring suit terview employees. They may investigate what

if he has been paid back wages under supervision ever facts, conditions, practices, or matters are

of the Administrator, or if the Secretary has filed considered necessary to find out whether any per

suit to collect the wages. The Secretary may also son has violated any provisions of the Act or which obtain a court injunction to restrain any person may aid in enforcement of the Act. Wage-Hour from violating the law, including the unlawful investigators will advise employers regarding any

withholding by an employer of proper compenchanges necessary or desirable regarding payroll, sation. A 2-year statute of limitations applies to recordkeeping and other personnel practices which the recovery of unpaid wages, except that an acwill aid in achieving and maintaining compliance tion on a cause of action arising out of a willful with the law. Complaints, records, and other in violation may be commenced within 3 years after formation obtained from employers and employees

the cause of action accrued. are treated confidentially.

[32 F.R. 2381, February 3, 1967] Section 800.165.-Recordkeeping requirements.

(c) Willful violations of the Act may be proseRecords required to be kept by employers hav

cuted criminally and the violator fined up to ing employees subject to the equal pay provisions

$10,000. A second conviction for such a violation under section 6(d) of the Act are set forth in sec

may result in imprisonment. tions 516.2, 516.6, and 516.29 of this chapter.

(d) The equal pay provisions are an integral

part of section 6 of the Act, violation of any proSection 800.166.-Recovery of wages due; in vision of which by any person, including any labor junctions; penalties for willful violations.

organization or agent thereof, is unlawful, as pro(a) Pursuant to section 6(d) (3) of the Act, vided in section 15(a) of the Act. Accordingly, wages withheld in violation of the equal pay pro any labor organization, or agent thereof, who visions have the status of unpaid minimum wages violates any provision of section 6(d) of the Act or unpaid overtime compensation under the Fair is subject to injunction proceedings in accordance Labor Standards Act. This is true both of the with the applicable provisions of section 17 of the additional wages required by the Act to be paid

Act. Any such labor organization, or agent to an employee to meet the equal pay standard, thereof, who willfully violates the provisions of and of any wages that the employer should have section 15 is also liable to the penalties set forth paid an employee whose wages he reduced in viola in section 16(a) of the Act.

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