Equal Pay Irrespective of Sex

VIRGINIA DEPARTMENT OF LABOR AND INDUSTRY
DIVISION OF LABOR AND EMPLOYMENT LAW

FIELD OPERATIONS MANUAL

CHAPTER THREE EQUAL PAY

This document is part of the latest version of the Virginia Department of Labor and Industry
Division of Labor and Employment Law's Field Operations Manual. This document supersedes
any and all previous editions.

DISCLAIMER

The Field Operations Manual (FOM) is an operations manual that provides the Division of Labor
and Employment Law investigators and staff with interpretations of statutory provisions,
procedures for conducting investigations, and general administrative guidance. The FOM was
developed by the Labor and Employment Law Division under the general authority to administer
laws that the agency is charged with enforcing. The FOM reflects policies established through
changes in legislation, regulations, court decisions, and the decisions and opinions of the
Virginia Department of Labor and Industry. Further, the FOM is not used as a device for
establishing interpretative policy.

The Virginia Department of Labor and Industry (DOLI) is providing the information in this
manual as a public service. This information and other related materials are presented to provide
public access to information regarding DOLI programs. It is important to note that there will
often be a delay between the official publication of the materials and the modification of these
pages. Therefore, no express or implied guarantees are indicated. The Virginia Regulatory Town
Hall remains the official resource for regulatory information published by the DOLI. Every effort
will be made to address all errors brought to the attention of the Labor and Employment Law
Division staff.

3.00, Equal Pay Irrespective of Sex

A. Coverage

The Virginia Equal Pay Irrespective of Sex Act is set forth in § 40.1-28.6 of the Code of
Virginia. The Act makes the requirements of equal pay for equal work applicable to
private industry employees not covered by the federal Fair Labor Standards Act of 1938,
as amended. Please refer to the Virginia Minimum Wage Act portion of this manual for
clarification of federal coverage under FLSA.

B. Summary of Act

The Act's substantive provisions and requirements are substantially the same as the
federal Equal Pay Act. It prohibits discrimination between men and women with regard
to their pay and fringe benefits, including pensions. Employers providing retirement
benefits to their workers must pay equal benefits to male and female retired workers even
though the cost to the employer of funding the program may be greater for one sex than
the other. Employees of either sex must receive the same pay for performing jobs which
require equal skill, effort, and responsibility, and which are performed under similar
responsibility. The Act provides protection for equal pay only, not any other
discriminatory charge.

Different wages and fringe benefits may be paid by an employer under the Act only in
support of one of the following systems:

1. Seniority system;
2. Merit system;
3. System paying wages based on quantity or quality of production; or
4. A differential pay system based on any other factor other than sex.

The federal Equal Pay Act is administered and enforced by the Equal Employment
Opportunity Commission (EEOC).

C. Case Assignment

1. Before accepting a claim under this section, have the inquirer contact the federal
   Equal Employment Opportunity Commission to determine if the employer comes
   within the purview of the federal Fair Labor Standards Act of 1938.
2. Regional or Central Office receives complaint for alleged differential in
   pay because of sex.
3. Claims must be in writing and must provide sufficient information to
   indicate an alleged violation.

C. Investigation

(numbered as "C" in the source document, following "C. Case Assignment" above)

1. Interviews complainant.
2. Interviews employer.
3. Interviews co-workers/witnesses if necessary.
4. Reviews job descriptions of employees.
5. Reviews employer's promotional pay policies.
6. Reviews any other policy employer may have such as one relating to seniority,
   pay increases and/or payment systems based on quantity or quality of work
   performed.
7. Collects and documents all facts and data to support validity of claim; calculates
   the amount of wages due claimant based on the difference between what the
   claimant received and what other employees of opposite sex received for same
   work performance.

D. Informal Resolution

Representative will attempt informal resolution:

1. Discuss findings and determination with employer.
2. Inform employer:
   1. Wage differential is due and must be paid immediately; also, must cease
      any other existing or future wage discrepancies.
   2. Employee(s) will be advised to seek restitution of wages.
   3. Employee will also be advised that he or she may seek damages equating
      to two times the amount of wages owed.

E. Employer Refuses to Comply

Representative should advise the employee of the following:

1. DOLI does not have the authority to pursue collection of the moneys owed
   through the courts.
2. The employee may institute his/her own action in the appropriate general district
   or circuit court.
3. The employee must institute a court action within two years of the date the wage
   discrepancy was noted and documented.