United States: Alabama's New Equal Pay Act Set To Soon Take Effect

Last Updated: August 14 2019
Article by Marion F. Walker

The State of Alabama passed an Equal Pay Act in the 2019 legislative session that is set to take effect on September 1, 2019. Employers must begin their preparations to comply with the law now because there are new timekeeping and wage records that will be required of all employers in Alabama as a result.

The Basics Of The Equal Pay Act

Under the new law, an employer is prohibited from paying “any of its employees at wage rates less than the rates paid to employees of another sex or race for equal work within the same establishment on jobs the performance of which requires equal skill, effort, education, experience, and responsibility, and performance under similar working conditions.” While the Act does not mention the concept of “discrimination” on its merits, the new law by its terms prohibits discrimination based upon race or sex. Alabama employers are already aware that the state has an existing law prohibiting age discrimination.

There are four exceptions that would permit employers to pay different wages to people of a different race or sex:

  • a seniority system;
  • a merit system;
  • a system that measures earnings by quantity or quality of production; and
  • a differential based on any factor other than race or sex.

If a worker believes they have a valid claim under the law, they may file a claim in the Alabama Judicial System. The Act does not specify which court will have jurisdiction of these claims. Any claim over $10,000 will filed in the Circuit Court and, amounts below that figure must be filed in the District or Small Claims Courts.

New Recordkeeping Obligations

The enhanced obligation for employers is that they must now “adopt the rules for record keeping established by the United States Department of Labor for the Fair Standards Act (FLSA), Title 29, Part 516 of the Code of Federal Regulations.” Imposing this requirement on every employer – not limited by number of employees, gross income, or type of business – will be onerous. Of course, large employers and some operating in specific industries (such as bars and restaurants), already maintain these records because they are subject to the FLSA.

While there is no statutory penalty provision if an employer fails to comply with the recordkeeping requirement, that doesn’t mean you should ignore this new obligation. You can expect Alabama courts to borrow the interpretations from federal law that hold an employer liable for the claims made in the absence of required records.

If a worker were to bring a claim because of the recordkeeping requirements, they seem to have a heightened burden as compared to claims brought under the FLSA. The complaint must be pleaded “with particularity” in demonstrating that they were paid less than someone for equal work despite possessing equal skill, effort, education, experience, and responsibility, and that the applicable wage schedule at issue was or is not correlated to any exceptions noted above.

Appearances are deceiving, but this provision appears to impose a pleading requirement similar to the “fraud or mistake” language found at Rule 9(b) of the Federal Rules of Civil Procedure. This promises to generate a fair amount of conflict, as parties will no doubt soon be arguing over the degree to which a claimant must “demonstrate” a violation in the complaint. For instance, motions for more definite statement or to dismiss as not “plausible on its face” can be expected from defendants.

Miscellaneous Provisions

The Act prohibits a double recovery from a state and federal lawsuit, mandating a “return to the employer” of the lesser of the state or federal recovery. It is easy to see this “return” being hard to realize, unless there are agreements with the employee, or their attorney, or careful planning by the employer’s attorney.

The statute of limitations requires a filing no later than two years after the act of discrimination giving rise to a cause of action. Attorneys can anticipate the Alabama courts will borrow heavily from the federal decisions interpreting the statute of limitations from the federal Equal Pay Act.

One advantage a claimant will have once the new law goes into effect is the opportunity to file a claim in a state court and get a jury trial within the county, rather than a federal district. Another is that the state court judge is more likely to send the case to the jury without imposing the stricter comparator test recently announced by the 11th Circuit of Appeals, which covers Alabama. Trial attorneys should anticipate claimants filing in federal court to obtain initial disclosures and early discovery deadlines, and then dismissing the case only to refile the claim in state court.

Conclusion

All Alabama employers must begin keeping careful records consistent with those required by the FLSA regulations. You should also begin the process of training managers on the meaning of equal pay, and its exceptions in this Act.

By way of prudent planning, you should perform random pay equity audits, consisting of examining and questioning wage payments of all employees. Ideally, you should work with counsel to conduct this initial review under the protection of the attorney-client privilege. By conducting your own audit of pay practices, you will be able to determine whether any pay gaps exist that might otherwise trigger a claim under the new law. Due to the increased complications, we strongly encourage you to get your attorney involved in this analysis early in the process.

We will continue to assess the situation and provide necessary updates.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions