Addressing possible lawsuits is at the heart of the equal pay fight _lowres

Advocate staff photo by PATRICK DENNIS -- Gov. John Bel Edwards testifies at Senate Labor & Industrial Relations Committee in favor of SB 254, the Louisiana Equal Pay Act . At right is Sen. Karen Carter Peterson, D-New Orleans ,and at left is Sen. Jean-Paul Morrell, D-New Orleans, and sponsor of Senate Bill 254.

New Orleans state Sen. JP Morrell has plenty of statistics on hand that show Louisiana women, on average, are paid about a third less than men — and he uses them to support his equal pay legislation.

But his first argument is a legal one: The process outlined in his Senate Bill 254 should tamp down the possibility of lawsuits, even as it provides an avenue for litigation over gender pay issues.

It’s a reasonable strategy in that few oppose paying men and women equally for the same level of work. What they are against, both in Louisiana and across the nation, is that equal pay rules expose businesses to another way of getting sued. Even if they don’t lose, the amount spent on lawyers and the amount of time lost gathering evidence is annoying, at best, to larger companies and possibly crippling to smaller ones.

“Many of the opponents focus on the litigious aspect of this bill,” Morrell said, so he addresses that issue up front in his legislation.

“The process you have to go through before you can file a suit completely defeats that specter they are trying to put out there,” Morrell added.

Dawn Starnes, state director of the National Federation of Independent Businesses, which represents about 4,000 businesses that employ about 150,000 people in Louisiana, isn’t buying it.

“Our opposition to this bill,” Starnes said, “is the potential of litigation against the small-business owner.”

Morrell’s SB254 would broaden the Louisiana Equal Pay Act to apply to private companies with more than 20 employees just as it does to government employers. He included a multistep process — similar to the one in place for medical malpractice actions — aimed at providing steps that would allow employers and employees to work out their issues before any lawsuit is filed.

Under the language of the bill, an employer has 60 days to either refute unequal pay allegations or to start paying the employee fairly. If the matter is unresolved, then the Louisiana Commission on Human Rights — a nine-member board appointed by the governor and confirmed by the Senate — can be asked to review the issue.

The panel can look at the various reasons for different wage rates, such as seniority, merit or any differential not based on gender. Only after the panel’s findings are released can an aggrieved employee file a lawsuit.

“Prevailing in (medical malpractice) lawsuit is well nigh impossible if the panel finds for the doctor. The burden then falls on the patient to prove negligence in that case,” Morrell said. An equal pay claim would be similar, if the court accepts the panel’s decision.

He’s also offering a way to limit the damages for employers. They would not have to recompense their employee for the years of underpaid wages, if the employer agrees to give a raise after either of the first two steps. And Morrell said he’s preparing an amendment to remove back wages — usually the largest part of an award in successful employment discrimination lawsuits — if the complaint ends up in court.

“You can correct the problem with no penalty,” Morrell said. “There’s a process in place in this bill to do this without discussing intent, just fix it and be done.”

Gov. John Bel Edwards says the process should assure the business community that the law would not be a bonanza for lawyers.

“I promise you if that was the goal, it wouldn’t be drafted this way,” Edwards testified in a rare appearance by a governor before a legislative committee to promote a bill. “The way this is structured, we are trying to strike the right balance so that employers will be put on notice and given every opportunity to resolve violations of the law before any further action is possible.”

Equal pay was one of the promises Edwards repeatedly made on the campaign trail last year. And it was highlighted during his Jan. 11 inauguration speech.

“On top of not paying our workers a living wage, women in Louisiana make an average 66 cents on the dollar compared to men,” Edwards said in the speech. “We are the worst state in the Union for pay equity. That is unacceptable. Not just for my daughters but for all women.”

But the business community notes that federal and state law already protect wanton pay disparities between men and women.

“We have the protections necessary now to enforce equal pay, and we believe that adding an additional layer of law and litigation opportunities has a negative impact on small-business owners,” Starnes testified to the same Senate committee as Edwards.

Large corporations deal with a large number of employees, so they already have a framework with detailed qualifications for each job, pay scales, human resources departments and management training for supervisors. Small businesses are more seat-of-the-pants operations where the big bosses interact with their employees daily, rather than through auditorium speeches and company-wide emails.

A corporate executive can easily produce employee evaluations and job descriptions to explain why Sally is paid less than Bill. A small-business owner has little of that documentation.

Shreveport Republican Sen. Barrow Peacock, who voted against the legislation in committee, said existing law already forbids employers from intentionally paying unequal wages.

SB254 would allow the commission to investigate private businesses and require them to disclose benefit information that, if it became public, could hurt the companies with their competitors.

“That is something that would hurt Louisiana on a competitive basis,” when trying to lure companies to come to this state, Peacock said.

Morrell said he was open to amending the bill to expressly exclude information disclosed to the commission from public records requirements. But it’s the threat of litigation that gives the measure teeth and that needs to remain.

Still, the legislation would allow for amorphous pay comparisons — what constitutes the same level of work. It’s a confusing prospect that alone could be the source of constant litigation, said Renee Amar, director of small business at the Louisiana Association of Business and Industry.

“Right now, it’s equal pay for equal work. We understand that,” Amar said. “What you consider comparable work and what I consider comparable work are obviously two different things.”

SB254 is scheduled for a vote by the full Senate on Tuesday. If successful, the measure would then have to clear the House Labor Committee, which is dominated by Republicans. If it does, the bill then goes to the full House for a vote.

Follow Mark Ballard on Twitter, @MarkBallardCNB. For more coverage of government and politics, follow our Politics Blog at http://blogs.theadvocate.com/politicsblog/.