?On April 20, Mississippi became the last state in the nation to enact an equal pay law, when Gov. Tate Reeves signed the Mississippi Equal Pay for Equal Work Act (“Mississippi Act” or “the act”).
The new law, which takes effect July 1, follows the liability standard of the federal Equal Pay Act, prohibiting employers from paying workers of one sex less than they pay those of the opposite sex for work that “requires equal skill, education, effort and responsibility, and which is performed under similar working conditions.” The Mississippi Act further mirrors the federal Equal Pay Act in that it permits pay disparities that are based on:
- A seniority system;
- A merit system;
- A system that measures earnings by quantity or quality of production; or
- Any other factor other than sex.
While the passage of the equal pay law brings Mississippi into line with other states, the law lacks some provisions of more expansive state counterparts. By limiting its coverage to gender-based pay differences, for example, the Mississippi Act does not extend the protection against pay discrimination to race-based wage differentials or disparities in pay based on other protected categories such as sexual orientation, age and disability.
Further, unlike some other state laws, the Mississippi Act does not narrow the defense based on “any factor other than sex.” To the contrary, it may expand that defense by articulating what some of those “other factors” can be.
The act defines factors other than sex so as to include, but not be limited to: (a) “the salary history or continuity of employment history” as compared to an employee of the opposite sex; (b) “the extent to which there was competition with other employers for the employee’s services as compared to employees of the opposite sex;” and (c) “the extent to which the employee attempted to negotiate for higher wages as compared to employees of the opposite sex in the same establishment.” Several of these factors have been expressly ruled out as pay defenses by other states.
Neighboring Alabama, for example, has banned the use of salary history as a defense to pay disparities in its equal pay legislation. As discussed above, however, the Mississippi Act lists salary history as one of the factors other than sex that may justify a pay disparity. Thus, Mississippi employers will not be prohibited from inquiring about a job applicant’s salary or wage history.
Nor does the Mississippi Act include a wage transparency provision, an increasingly common feature of state-level equal pay laws that prohibits employers from banning discussion of wages with other employees or retaliating against employees for discussing their wages. The act likewise does not require an employer to disclose wage ranges for a job position to applicants or current employees, another distinction from recent legislation in other jurisdictions.
Critics also have claimed that the new law provides fewer protections than the federal Equal Pay Act because the bill essentially gives state authorization to discriminate through pay differentials based upon length of service/job history, market conditions and negotiation skill. Additionally, the Mississippi Act provides for recovery of lower damages than available under federal law, with plaintiffs entitled only to back pay and attorney’s fees.
Further, the act contains no prohibition against retaliation that would protect an employee who may bring a claim under the new law. The Mississippi Act also contains an unusual provision requiring that employees must waive their right to a federal claim in order to be eligible to bring a claim under the state law. Whether this waiver requirement is consistent with federal law may become the subject of future litigation.
Employers are encouraged to review their pay practices for worksites in Mississippi.
Thelma Akpan is an attorney with Littler in New York City. Maureen H. Lavery is a knowledge management counsel with Littler. © 2022 Littler. All rights reserved. Reposted with permission.