Institutions of higher education: Are you 'paying educators what they're worth'?

In a tweet shortly after the 2020 presidential election, Dr. Jill Biden committed the Biden-Harris administration to "fight for educators" and added the push means paying them "what they are worth." The commitment is multifaceted, weaving together the concepts of internal pay equity and external market comparisons. To address the issues, colleges and universities need to conduct compensation analyses, but what to analyze and where to start?

Start at your general counsel's office

Compensation analyses conducted at the direction of counsel are done either to allow an attorney to provide the institution with legal advice or prepare for possible litigation. If an attorney directs the processes, they can be protected by the attorney-client privilege.

To conduct the analyses, significant compensation and personnel data are gathered and analyzed, which creates detailed information about both explained and unexplained pay disparities. If the privilege isn't established and properly maintained, communications with the client could be subject to disclosure if the institution's pay practices and decision making become the subject of litigation. The same is true for any attorney work products, such as the results of the analyses as well as the methodology used for assessing pay.

Further, if the analyses are initiated by departments other than legal counsel (e.g., HR or diversity, equity, and inclusion leaders, compensation staff, or individual school deans), they can't be retroactively protected by the attorney-client privilege.

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