The Senate Returns With a Choice: Jobs or Paycheck Fairness Act?

From today’s Congressional Record, Daily Digest, noting the Senate’s convening at 9:30 a.m.:

Program for Wednesday: After the transaction of any morning business (not to extend beyond 11 a.m.), Senate will resume consideration of the motion to proceed to consideration of S. 3772, Paycheck Fairness Act, and if cloture is not invoked again, Senate will proceed to a cloture vote on the motion to proceed to consideration of S. 510, FDA Food Safety Modernization Act.

Shopfloor has had offered several posts lately on the substantial flaws with the Paycheck Fairness Act, starting with its imposition of a second-guessing federal government and cash-seeking trial lawyers in the place of employers in making management decisions. Politically, the legislation always seemed like a pre-election move to motivate campaign workers and contributors in organized labor and other activist agglomerations.

Now a Senate vote must be taken to meet those political commitments, and there’s the minimal amount of work being done to demonstrate half-seriousness of intent. The White House gave Labor Secretary Hilda Solis the go-ahead to give a rare  interview in the mainstream media — a brief segment in Marketplace Radio — and there’s a White House blog post by Terrell McSweeny, domestic policy adviser to the Vice President. Not the big political guns, to say the least.

The bill has so many damaging elements in it that even the most reliably liberal editorial pages have concluded, “Oh, this just goes too far.” The Boston Globe, for example, today opines, “Bill takes on disturbing pay gap — but offers flawed remedies“:

[The] controversial meat of the bill is the changes it would make to the legal process, amending the Equal Pay Act of 1963. Where women today can only sue for back pay, the new bill would allow them to seek both compensatory damages and unlimited punitive damages. The bill would also make it easier for workers to join class-action suits. Most problematically, it would alter the burden on businesses, requiring them to prove that any difference in pay is the result of a business necessity, and to demonstrate why they didn’t adopt a plaintiff’s suggested “alternative remedy’’ that wouldn’t result in a pay gap.

But what if a company offers a higher salary for retail workers in a more dangerous location, and more men sign up? What if a male worker leverages a job offer into a higher salary? Should these be illegal acts? The bill would create too strong a presumption in favor of discrimination over other, equally plausible explanations for disparities in salaries. In addition, the threat of much higher damage awards by juries might lead businesses to make quick settlements for frivolous claims.

The National Association of Manufacturers on Monday sent a “Key Vote” letter to the Senate registering the NAM’s objections to S. 3772. As the letter argued:

Manufacturers are strongly committed to equal employment opportunity and support vigorous enforcement of anti-discrimination laws. As employers, we are dedicated to fairness in hiring, compensation and job advancement for all employees. Unfortunately, this legislation will do little to prevent unlawful discrimination but would invite unwarranted and costly litigation against employers at a time when businesses are struggling.

The elections are now two weeks past. We can appreciate that the White House and Senate leadership feel obliged to keep their commitment to their political allies by holding the promised vote.

After that, can we move on to jobs and economic growth, please?

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