EQUAL PAY FINALLY COMES TO MISSISSIPPI

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Patricia Tsipras

May 26, 2022

Effective July 1, 2022, Mississippi will become the last State in the United States to mandate equal pay for equal work.

Content of the Law
Mississippi’s Equal Pay for Equal Work Act, like the federal Equal Pay Act, provides that no employer shall pay an employee a wage at a rate less than the rate at which an employee of the opposite sex in the same establishment is paid for equal work on a job, the performance of which requires equal skill, effort, and responsibility, and which is performed under similar working conditions.  However, a difference in pay is legal if it is based on a seniority system, a merit system, a system that measures earnings by quantity or quality of production, or any factor other than sex.

Application of the Act Is Different as Compared to Federal Law
Mississippi’s law defines an employer as an entity that employs five or more employees.  The federal Equal Pay Act may apply to an employer with fewer than five employees if the employees are subject to the Fair Labor Standards Act.  Federal law does not contain an hours requirements, whereas Mississippi’s law applies only to employees who work 40 or more hours per week.  Furthermore, an employee who asserts a claim of unequal pay under Mississippi law waives the right to assert a claim under federal law.

Reaction to the Law Is Mixed
Support for the law comes from many female lawmakers who are optimistic that it will help close the pay gap in Mississippi, which is one of the worst in the country.  Mississippi Attorney General Lynn Fitch stated that the new law is a “giant leap forward in closing the twenty-seven percent pay gap – that makes it harder for working women and their families, that leads to young Mississippi women taking their talents beyond our borders, and that perpetuates the cycle of poverty in our State.”[1]

Critics of the law, including the women’s advocacy group, Equal Rights Advocates, argue that the new law harms the equal pay movement because it provides fewer protections than the current federal law or other states’ law.[2]

For example, Mississippi failed to follow the trend of prohibiting employers from inquiring about an applicant’s salary history.  Thus, a Mississippi employer may ask a woman about her salary history, which may result in widening the gender pay gap because women tend to earn less than men at the start of their careers or may experience more gaps in their employment.[3]

In addition, the law is focused solely on pay differences based on sex; it does not consider that such differences may be based on other legally-protected characteristics, like race.  Nor does Mississippi’s law require pay transparency for applicants or employees.

Thus, while Mississippi’s law certainly is a step in the right direction, the State missed the opportunity to enforce equal pay in other ways, consistent with many other states’ laws.

Employer Takeaways
Mississippi employers should take this opportunity to audit their pay plans and practices to ensure compliance with the Act.

 

*Special thanks to Claire Miller, our intern from the University of Notre Dame, for her contributions to this article.

 

[1] https://www.washingtonpost.com/nation/2022/04/11/mississippi-equal-pay-bill/

[2] Id.

[3] https://www.cnbc.com/2022/01/20/gender-pay-gap-for-class-of-2020-starting-salaries-shown-in-new-report.html

 
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