In honor of Equal Pay Day, April 13, 2011, Congress reintroduced the Paycheck Fairness Act. If enacted, the legislation would modify the Equal Pay Act of 1963 (EPA), which amended the Fair Labor Standards Act of 1938.

The EPA prohibits employers from paying women less than men for performing equal work in the same “establishment,” i.e., physical site. Under the EPA, differences in pay are permissible pursuant to a (1) bona fide seniority system, (2) merit system, (3) system that measures earnings by quantity or quality of production, or (4)  differential based on any factor other than sex.

If enacted, the Paycheck Fairness Act would:

• Make it harder for employers to defend alleged disparities in pay. Specifically, the Act would require employers to prove not only that any disparity is based on a factor other than sex, such as education, training or experience, but that such factor is job-related and consistent with business necessity;
• Prohibit employers from retaliating against employees who discuss salary information with their co-workers, though the Act provides an exception for employees whose essential job functions include keeping such information confidential;
• Expand the definition of “establishment,” allowing plaintiffs to make comparisons within the same county rather than the same physical site;
• Permit “opt-out” rather than “opt-in” class actions against employers, which could result in much larger classes of plaintiffs;
• Allow plaintiffs to recover expert fees and punitive and compensatory damages;
• Require the Equal Employment Opportunity Commission to issue regulations that would require employers to provide pay information data based on the sex, race, and national origin of employees.

How likely is the Paycheck Fairness Act to pass? Given the Republican-controlled House of Representatives, some say chances are slim. Nevertheless, Texas employers have reason for concern: according to data from the U.S. Census Bureau, in 2009, women earned 77 cents for every $1 earned by men.