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Paycheck Fairness Act and Its Attack on Private Business

Does this bill do more harm for women that actual help?

Many conservatives have made the accusation that the current administration and Democratic leadership are attempting to turn the US into a European Socialist state.  One of that easiest ways of accomplishing this is through the control of private business under the disguise of helping the people.  Recently, the Paycheck Fairness Act (PFA) was brought before the US Senate for the third time in four years.  According to website of one of its authors, Senator Mikulski, this bill ‘will close the loopholes that allow pay discrimination to continue in the first place and, with Ledbetter, provide employees the rights they need to challenge and eliminate pay discriminate in the workplace.’  However upon examination of this bill and it alteration to the Fair Labor Standards Act (FLSA) its claims will far exceed to benefits to women.  In fact, based on its wording, it was not crafted to build up the wages of women, but rather depress all wages at an equal level while giving a nice kick back to the trial lawyers. 

In the PFA, there are two main directions Senator Mikulski and her co-author Congresswoman Delauro have taken when crafting this legislation: 

1) Limit the ability of private business owners to operate there business. 

            (a) According to the rewording of the FLSA done by the PFA rather then granting concrete defense on the scope of pay discrimination ‘any factor other then sex’, the new Act includes wording that restricts an employers defense to ‘bona fide factor other than sex’.  By exposing the employer to what equates to a good faith estimate of discrimination it begins to tie the hands of employers even if certain factors other then sex are actually present with in a companies pay structure. 

            (b) To further limit the actions of the employer, the PFA goes on to include that an employer is liable if the employee demonstrates that an alternative employment practice exists that would serve the same business purpose without producing such differential and that the employer has refused to adopt such alternative practice.’  Again as we saw with the ‘bona fide’ inclusion, this statement creates opportunity for varied interpretation.  For instance, what is included in ‘same business purpose’, is that based on profits or simply production with no regards to additional costs?  Does the refusal ‘to adopt such alternative practices’ include those that might go against the employers desires for his company?  In either instance, the law is vague opening an employer unknowingly to litigation.

             (c) Lastly, it no longer allows employers to punish employees for discussing wages.  The idea of ones wage is a personal contract between employee and employer based on many factors unique to your own employment status.  This addition to the PFA becomes important only when your employment status has been made subjective based on interpretation.  It becomes easier to file complaints if employees are able to consider factors other then sex as discrimination or if they feel things could be done differently.  Based on my own experience every employee believes things should be done differently or they deserve more pay; however, for the vast majority of us making either one of those determinations is above our pay grade. 

2) Increasing the ability of litigation. 

            (a) The first nod to the trial lawyers in this bill (besides making the law vague and open to random interpretations) is making it the employees responsibility to opt out of any class action law suit.  In the original FLSA it stated specifically that in order to be plaintiff an employee had to submit consent in writing with the court.  The PFA includes that following phrase, ‘Except with respect to class actions’ allowing large sections of employees to be named in a suit without actually wanting to bringing a charge against the company.  Consider the legal fees a lawyer to build if by taking the claim of one employee and expanding it to an entire company without the other employees being aware. 

            (b) The most damaging actions that could be included in this bill, when you take into effect the subjective nature provided lawyers and employees, is the addition of punitive damages.  In the FLSA an employer found liable for discrimination was responsible for the unpaid wages or unpaid overtime.  The PFA includes, ‘where the employee demonstrates that the employer acted with malice or reckless indifference, punitive damages as may be appropriate,’ in an attempt to further punish that actions of discrimination.  Yet, punitive damages without limit can quickly turn from a punishment to the destruction of a company. 

In the introduction to the PFA, the authors included a list of reasons that were being addressed by the enactment of this bill.  They claimed the loopholes in the FSLA ‘depresses the wages of working families who rely on the wages of all members of the family to make ends meet’, ‘prevents the optimum utilization of available labor resources’ and ‘interferes with the orderly and fair marketing of goods in commerce’.   The hope was that by implementing PFA it would be ‘providing a solution to problems in the economy created by unfair pay disparities’ and ‘promoting stable families by enabling all family members to earn a fair rate of pay’.  Unfortunately all this bill will do is create a less stable platform from which business can operate within the economy.  

This administration and the liberals in the US have gone a rant in the last couple of years chastising business owners for not hiring or expanding business.  The employers seem to be withholding profits and not reinvesting them into the business or community.  Then in response we see legislation such as this being pushed in Congress.  Legislation that opens business up to increased reckless scrutiny, over zealous lawyers and employees who are being told by their government they are entitled equal pay with almost no objectivity to merit.  As this uncertainty grows, business owners are unwilling to take the associated risk.  

As for any effect on wages, it will only serve to depress all wages.  If the subjective determination of inequality by employees and courts is the new societal norm; merit style increases become increasing dangerous to the employer.  The easiest solution is to bring all wages to the median level.  This will obviously artificially raise the wages of those at the bottom; but, it will also reduce the wages of those above the median level making the overall wage earning ability less for all.  So in their attempt to help women close a $0.77 gap in pay, they are willing to sacrifice the earning potential of all.  While it is hard to prove that is their ultimate, the end result will be further government control of both private industry and wages. 

At this point, I don’t think this bill will pass.  Be that as it may, this thought process and slow creep of socialism into the US society is the goal of this administration.  If we want European style government on this side of the pond, allowing these elected officials to continue to push this progressive agenda is the quickest way.

This post is contributed by a community member. The views expressed in this blog are those of the author and do not necessarily reflect those of Patch Media Corporation. Everyone is welcome to submit a post to Patch. If you'd like to post a blog, go here to get started.

Bottom Line February 04, 2013 at 03:56 PM
Lyle, you are overlooking quite a bit. Without gov't mandates companies expanded benefits they offered employees, including health insurance, matching 401k contributions, and better vacation packages. You should consider that while we survived without these benefits, I doubt even you consider them "stuff". We put considerably more into public education. This would not have been possible without compensation allowing taxpayers to afford the considerable expense we are strapped with today. We also pay other public employees and extend benefit packages better than the majority of private sector compensation programs (review per capita income for the proof). Unfortunately, as we improved economically the public sector benefited, now that we are contracting they are unwilling to accept like correction. Home ownership is another sector that is significantly better than the 50's. Citizens benefiting the changes might argue that you are wrong, if they were not being told every day that the wealthy have not paid their fair share. I'm not sure why you are unwilling to consider the improvements that could only happen due to companies compensating better. I agree that "stuff" people accumulate today is a poor measure of our success. Missing is a discipline we sorely lack. I would argue that if we weren't so affluent that missing discipline might find its place in our society. Maybe you could cite specifics, who are the unscrupulous?
Lyle Ruble February 04, 2013 at 05:20 PM
@Young Conservative...By your response I can tell your education is severely lacking. Google: Abraham Maslow and the Hierarchy of Needs.
AWD February 04, 2013 at 07:18 PM
Paycheck Fairness Act = Yet another way for Progressive politicians to funnel more money to their union buddies (especially educators) and other preferred special interest groups who in turn support them politically. Question, why aren’t the righteous Progressive ladies and liberal media news babes protesting the vulgar, sexist behavior of Sen. Bob Menendez, DEMOCRAT-N.J.?
Young Conservative February 04, 2013 at 07:24 PM
The Equal Pay Act of 1963 already forbids pay discrimination between men and women in the same jobs. THEY WILL PASS THE SAME LAWS OVER AND OVER AGAIN BECAUSE THEY KNOW THEIR MINIONS DON’T REMEMBER ANYTHING BEFORE BREAKFAST THIS MORNING...........FOR THEM, IT’S LIKE GROUNDHOG DAY EVERY DAY........idiot Democrat liberals.
Young Conservative February 04, 2013 at 07:28 PM
Mr Ruble, Growing up in Castro’s Cuba gave me insight into the application of Maslov’s hierarchy. Socialism leads to Communism because it destroys the desire to get ahead and succeed, after all, wealth created by producers is “voted upon” by the majority (non-producers/users) to be disbursed for services they cannot on their own pay for. Once Socialism destroys producers, and gives labor preeminence over industry, government is in charge of resources, industry, and distribution. That is the classic Socialism-to-Communism model. I've come across decomposed bodies that are less offensive than you are.
Lyle Ruble February 04, 2013 at 08:05 PM
@Young Conservative....Your argument is flawed on a number of levels. First and foremost, socialism doesn't necessarily lead to communism. Look at all the nations that are social democracies, they wouldn't even consider communism as an economic model. Social democracies take the best of both the free capitalist economy and the socialist economy. Cuba didn't have to go the way of Soviet style communism, but the United States contributed immensely to that direction. The long and ineffective blockade has created the seedbed for communism. I am old enough and well versed enough to understand the conditions in Cuba prior to the Revolution. Batista, the dictator, was thoroughly corrupt and essentially sold Cuba to the highest bidder. i.e. the American Mafia. I don't support the communist regime, but they have done good things for Cuba, such as a healthcare system that is second to none. In my opinion, if the US would have ended the embargo some fifty years ago, Cuba would be a shining star as a social/capitalist society. BTW, thanks for the ad hominem attack, it just illustrates how lacking you are in education and intellect.
Lyle Ruble February 04, 2013 at 08:11 PM
@Angry White Dentist....You have a rich and vibrant fantasy. The PFA doesn't funnel money to the unions in any way shape or form. It has been introduced to close several loopholes in the 1963 act. If you read a little and became better informed then you wouldn't make such unfounded statements. BTW, Bob Menendez is going down, as he should.
Lyle Ruble February 04, 2013 at 08:14 PM
@Young Conservative....The Equal Pay Act of 1963 has holes in it big enough to drive a semi through. Do some more investigation before shooting your mouth off.
J. B. Schmidt February 04, 2013 at 08:22 PM
@Lyle If discrimination is made illegal by the Equal Pay Act, what is the loophole?
J. B. Schmidt February 04, 2013 at 08:25 PM
@Lyle While funnel (as in the union dues funnel) might be a little extreme; the vagueness of this law could give the union significant ability to strong employers. However, the Dentist fails to point out the other buddies of the Dems, the trial lawyers. Based on the unrestricted access they have to class action suits, this could be a windfall.
Lyle Ruble February 04, 2013 at 08:34 PM
@James Robert....What disturbs me is that so many function under a system of "pocketbook morality". The principle belief is a belief in equal opportunity as long as it doesn't cost me anything or I have to acknowledge the systemic inequities in our society. Also, there is an overemphasis on what and who constitutes the "deserving poor" and what and who constitutes the "undeserving poor". the great myth of the conservative movement is that all have equal opportunity and if someone doesn't pull themselves up by their "boot straps", then it is a problem of character and not circumstance.
Young Conservative February 04, 2013 at 08:43 PM
Oh, so you know more about Cuba than me....precious. Say Mr Ruble, how many times have you been to Havana? I can see right through your haughty pseudointellect....
Young Conservative February 04, 2013 at 08:51 PM
If women were really paid 30% or whatever amount, less than men for the same job, why would any employer hire a man? All businesses would want to hire only women, right? Pay discrimination between men and women is already banned by the Equal Pay Act of 1963. If this issue was really a major problem, then Obama and Eric Holder would have the Justice Department filing some high profile lawsuits on the subject. The law is already in place. There’s no need to pass yet another law on the subject of pay discrimination.
Lyle Ruble February 04, 2013 at 09:18 PM
@J.B. Schmidt...A little more FUD.
Lyle Ruble February 04, 2013 at 09:24 PM
@J.B. Schmidt....It is the fourth provision of "factors other than sex" which has proved to be the loophole because of its vagueness and open to wide interpretation and abuse.
Luke February 04, 2013 at 09:34 PM
Lyle, I understand your complaint, but I don't see you providing a solution. In fact, I doubt that you will come up with a solution that won't drive jobs away to a more competitive country. The fact is that the jobs will exist. The question we must ask is where they will exist. I believe you will find that as industries age there is a tendency for them to become more competitive as the technology involved proliferates. New technologies arise to take their place. Passing a Buggy Whip Industry Protection Act is not the solution.
Luke February 04, 2013 at 09:37 PM
@Lyle One more thing. You are incorrect when you say that the cost of goods has not gone down. Things, in general, have never been so inexpensive.
Lyle Ruble February 04, 2013 at 10:00 PM
@Luke....No one is suggesting passing a Buggy Whip Preservation Act. Your point is that we will all soon be replaced by either technology or cheaper labor? Whether a person is working in the cyber world or some other occupation, there will always be a need to monitor employer/employee relationships and rectify injustices perpetrated by employers.
Lyle Ruble February 04, 2013 at 10:03 PM
@Luke....I agree many things are inexpensive, but my concern is things such as true energy costs, healthcare costs, education costs, food costs, housing costs, etc. As long as certain areas are increasing in cost faster than real wages, then they are not less expensive. i.e. healthcare costs
Luke February 05, 2013 at 12:27 AM
@Lyle, My point is that if your definition of injustice is merely that wages fall as competition increases, you have to complain about nearly every industry that has ever existed since time began. New industries replace old ones. The new ones are where the opportunity, risk and the money is. Nothing new under the sun.
Lyle Ruble February 05, 2013 at 12:55 AM
@Young Conservative....I didn't say that I know more about Cuba than you. However, I am unbiased about Cuba and a student of history. Are you denying the sins of Batista and the causes of the Revolution? To accuse me of pseudo intellectualism is a hoot since I never claimed to be an intellectual in the first place.
Randy1949 February 05, 2013 at 01:19 AM
Wow -- she can afford two kids on salary of $10 per hour? In what world are we living? (Just kidding.) What about the man who misses a few days of work to attend the births of his children? What about the man who has to spend two weeks of Army Reserve training per year and he only has one week of vacation? Does an employer get to penalize him for that? People miss work for all kinds of reasons, most of them not gender-related.
Luke February 05, 2013 at 01:23 AM
@James, They should be paid the same, James. After all, they are being paid for their work, not their time off. But a related issue is that women quit the workforce for extended periods. 51% of women between the ages of 25 and 56 are out for a full year. Obviously many women are out for much longer. In those situations the income and advancement opportunities are missed out on while out of the workforce. That is to be expected, but those who like to manipulate women will add those people into the figures when they compare what women make to what men make.
Luke February 05, 2013 at 02:41 AM
@Lyle, Yes, Lyle, but the issue is the lie that is being perpetuated by the left that won't fool you, but fools the intellectually vulnerable people, like Bren. The lie involves comparing two groups of people (men and women) who tend to be attracted to different careers and have different values concerning work and performance over a lifetime. The second step of the lie is to blame men for the choices women are making, and then to protect the women so that they can both maintain the benefits resulting from their present choices and also get the benefits they would have gained if they had made alternative choices. In sum, the political ploy is an attempt to appear to give women something no one (not even the liberals) will ever be able to give them. That thing is the pay for a job they did not apply for, at a job they never showed up for. The lie is only partially refuted here: http://www.politifact.com/truth-o-meter/statements/2012/jun/21/barack-obama/barack-obama-ad-says-women-are-paid-77-cents-dolla/
J. B. Schmidt February 05, 2013 at 03:41 PM
@James That is not a question that a person outside the employer should be able to answer. During the 120 days she was gone, what was the cost to the company? Was the man responsible for carrying her work load as well? What was the length of time she needed to become settled after missing 60 days of work? I am not saying that she should not be making the same as the man, but that should be an employers decision based on what he/she feels is best for the company. Over the last 10 years my wife has taken 4 extended maturity leaves. She has also busted her arse every day she has worked outside of those leaves. She understands and expects that her leaves could impact the decisions of an employer. She understands that her potential has been limited as we grew our family. If in your scenario the women is simply working equal to the man and not attempting to show the employer that she deserves the pay increase, that her choice to have a family will not effect the employer, then she does not deserve the pay increase and the man does. I would say the same thing for a man who decides to take paternity leave. Now let the attacks of sexism begin.
CowDung February 05, 2013 at 05:16 PM
"That is not a question that a person outside the employer should be able to answer." I think that is a very important point, JB.
J. B. Schmidt February 05, 2013 at 06:53 PM
@James The thing that stands out to me in your scenario (and what happens in the real world) is that over those 3 years, the man would have worked an additional 1/3 year compared to the female. In any other situation (aside from child birth), that would have a great bearing on raise/promotion and even hiring. Randy makes the assumption that lack of a raise is a penalty, as if it is deserved rather than earned. He is simply feeding into the nanny state mentality. As for my wife. I might be slightly biased; however, her advancement speaks for itself as I doubt sympathy or some need to battle sexism in the workplace has earned her the position. My wife and I look back and wonder what our lives would look like had we not CHOSEN to have as many kids as we did. The point is, no matter what liberals try to sell, children are a CHOICE and that CHOICE comes with consequences.
Born Free February 15, 2013 at 07:58 PM
Sounds like the PFA will need an official Obama czar, a trillion tax dollar's, a legion of new Fed public sector union employee's sitting in a new 12 floor million square foot federal government administration building with under ground heated parking and gender neutral bathrooms in D.C., a fleet of Chevy Volts and Yukons, uniforms, AR-15's, a thousand 'Gun Free Zone' signs and bumper stickers, a gaggle of new IRS laws and employees', hot line's to every lame stream media outlet, 50 state 50 thousand square foot office buildings w/ under ground heated parking and gender neutral bathrooms complete w/ public sector employee's, a fleet of Chevy Volts and Yukons, uniforms, AR-15's, 500 'Gun Free Zone' signs and bumper stickers, and a trillion dollar loan from the Federal Reserve to kick off this whole 'new deal' pooh-litically correct job creation scheme. Obama himself will feature photo ops and press conferences with women and children because after all 'it's about them'. UNIONS AND LIBERAL STREAM MEDIA ARE INDEPENDENTLY THE 2 MOST WEALTHIEST AND POWERFUL LOBBYING GROUPS...NOT THE NRA
Steve ® February 15, 2013 at 08:16 PM
Just like murder is, and stealing, and bringing weapons into a school. Liberals use the government for their control of the human race. They are not successful people outside of government.
Steve ® February 15, 2013 at 08:29 PM
Trust Obama with money? ha haha http://www.youtube.com/watch?v=vowHQwFUHAY

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