EverythingPeople This Week!

23

May

2017

The Impact of Motherhood on Pay

Author: Michael Burns

Gender pay disparity and the many reasons for it, continues to be studied by researchers.  A new study by researchers at Wellesley, Harvard, Boston College and the Institute for Social Research in Oslo, Sweden identifies motherhood as a big impediment to equal pay as women’s careers progress. 

16

May

2017

Why Aren't More Women in the Workforce?

Author: Anthony Kaylin

According to US Census statistics, 57% of women work outside the home, compared with 69.2% of men. Fed Chairperson Janet Yellen stated that “[o]ne recent study estimates that increasing the female participation rate to that of men would raise our gross domestic product by 5%.”  So why aren’t more women in the workforce?

9

May

2017

Defending Equal Pay Act Claims Becoming More Difficult

Author: Anthony Kaylin

Under the Equal Pay Act (EPA), courts have generally allowed employers to prove that some “factor other than sex” justified the pay differentials.  However, a recent Federal 8th Circuit of Appeals case narrowed the parameters that employers can use to defend EPA lawsuits and allowed broadening of testimony to show the employer is committing systemic discrimination.

9

May

2017

Sixth Circuit Recognizes “Cat’s Paw” Theory Application in FMLA Retaliation Suit

Author: Michael Burns

The intriguingly named “cat’s paw” theory of discrimination looks at whether an adverse employment action, in this case a retaliatory discharge, that was initiated by “ultimate decision makers” was in fact being influenced by lower level supervisors with discriminatory intent. This theory is relatively new but has been successfully used by plaintiffs in a broad range of other equal employment opportunity cases. The case at hand, Gloria Marshall v. The Rawlings...

2

May

2017

Is it Legal to Pay a Woman Less if Based on Salary History?

Author: Heather Nezich

Solely based on Federal law…yes.  A federal court ruled last week that it is legal to pay female employees less than men if it is based on past salary history.  This decision by the 9th Circuit Court of Appeals overturns a previous ruling that stated that pay differences solely on past salary history were discriminatory, based on the Equal Pay Act.

25

Apr

2017

Hiring Program Targeting Young Employees May Result in an Age Discrimination Case

Author: Michael Burns

An employer’s “branding” of their hiring campaign as the “place to work for millennials” resulted in a class action age discrimination lawsuit. Pricewaterhouse Coopers hires thousands of college graduates each year. To do so successfully, it has put programs in place designed to attract the younger workforce. 

18

Apr

2017

Pay Equity Plays Important Role in Employee Engagement and Retention

Author: Jason Rowe

Do you worry about hiring the right people? Do you worry about retaining and engaging your current workforce? All in an effort to drive business performance?  Maybe it is time to look at your organization’s pay equity.

14

Mar

2017

A Rise in Pay Equity Claims Will Hit Employers Hard in the Future

Author: Anthony Kaylin

Although Equal Pay Act (EPA) EEOC charges are small in number, the trend is growing.  Over the past three years, the number of charges filed rose from 938 to 1,075 or 15%.  These type of cases tend to have large victim classes.  Acting Chair Victoria Lipnic, in a webinar hosted by Seyfarth Shaw on February 9, 2017, identified that the EEOC has not brought many equal pay cases, but stated, "I am very interested in equal pay issues. It's something I would consider a priority."

7

Mar

2017

Has OFCCP’s Mission Run Its Course?

Author: Anthony Kaylin

A current question before the Trump Administration is whether the OFCCP has outlived its usefulness.  The Heritage Foundation rightly asks whether there is a need for the OFCCP given that many of its current initiatives are the purview of other agencies. Moreover, there is a real question of the effectiveness and ROI of the agency. 

28

Feb

2017

Trouble Caused by Post-it® Notes for Texas Roadhouse Restaurant Chain

Author: Kristen Cifolelli

Employers have long known about being careful when it comes to appropriate non-discriminatory hiring practices and the legal risks involved when they are not.  Interview notes can become problematic when they contain inappropriate comments or evidence that potentially discriminatory hiring practices may have been used.  The restaurant chain Texas Roadhouse has found out the hard way how something as simple as a Post-it® could become key evidence in an age discrimination lawsuit.

24

Jan

2017

Over/Under 40 ADEA Analysis May be Too Limiting for Discrimination Review

Author: Anthony Kaylin

Under the Age Discrimination in Employment Act (ADEA), the law protects those employees who are at least 40 years of age.   The law has been interpreted that it protects these employees when, for example, they are replaced by employees who are less than 40 years old.  The U.S. 6th Circuit Court of Appeals, which includes Michigan, agrees with this interpretation.  However, a new case from the U.S. 3rd Circuit Court of Appeals takes a different approach, and the case may...

13

Dec

2016

New Tales from “Portlandia” - Portland, OR Attempts Pay Control to Address Income Inequality

Author: Michael Burns

Portland, Oregon has further demonstrated its left-wing progressive quirkiness that is often lampooned in the cable network show Portlandia.  Recently, the Portland City Council passed an ordinance imposing a surcharge on companies whose CEOs earn more than 100 times the median pay of their rank and file workers.  If a company that resides in Portland pays its CEO above the 100 times threshold, the company will be subject to an additional 10% tax.  And if they pay the CEO above...

27

Sep

2016

Banning Inquiries into Applicant Salary Histories

Author: Dan Van Slambrook

There is a growing line of thought that salary history of applicants is not relevant when negotiating salaries of new hires.  In fact, the pundits believe that applicant salaries should be set based on market value determined by others with similar experience in the job being hired into regardless of previous salary.  In addition, these pundits believe that women in particular are hurt by these inquiries as studies have shown that coming out of college their salaries are in general...

27

Sep

2016

GAO Issues Report on OFCCP Activities

Author: Anthony Kaylin

Upon a request by Congress, the General Accounting Office (GAO) conducted an audit on the U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP) activities for the past six years.  OFCCP is charged with ensuring that about 200,000 federal contractor establishments take affirmative action to provide equal employment opportunities for certain protected classes of workers. A number of complaints arose from the federal contractor community that reached...

16

Aug

2016

Sixth Circuit Reaffirms Equal Pay Act Principals

Author: Michael Burns

Last week everythingpeople.™ This Week! reported on a new comparable worth statute adopted by the state of Massachusetts. The new state law changes equal pay for equal work, a long standing pay equity principal and creates a new measurement that attempts to equate the “value” of one job as equal to the value of a different job. However, a recent case in Michigan still supports equal pay for equal work.

9

Aug

2016

Massachusetts Passes Law That Intrudes on Employer Compensation Practices

Author: Michael Burns

Last week Massachusetts passed a comprehensive pay “equity” law (S. 2119 also called “An Act to Establish Pay Equity). This law moved the state from the free market “equal pay for equal work” side of the ledger to the subjective and controversial “comparable worth” side (called “comparable work” in the MA law). Among other requirements, it prohibits employers from asking a basic question of its employment candidates—“What was...

19

Jul

2016

EEOC Proposes New Revisions to EEO-1

Author: Anthony Kaylin

On July 13, 2016, the EEOC announced a new publication of its revised proposal to collect pay data through the Employer Information Report (EEO-1).  The proposed revision would include collecting summary pay data from employers, including federal contractors, with 100 or more employees. The pay data will assist the agencies in identifying possible pay discrimination and assist employers in promoting equal pay in their workplaces.

7

Jun

2016

Leave of Absence as a Reasonable Accommodation Under the ADA

Author: Anthony Kaylin

On May 9 the Equal Employment Opportunity Commission (EEOC) issued a guidance on leave of absence as an accommodation under the Americans with Disabilities Act (ADA).  The EEOC noted a “troubling trend” in charges of discrimination that allege violations of the ADA, especially where employers are not granting or considering leave as a reasonable accommodation. The EEOC is issuing this guidance to help employers navigate the issues of leave when an accommodation is...

17

May

2016

EEOC Publishes Final Rules for Wellness Plans

Author: Anthony Kaylin

On Monday, the EEOC published the final regulations on employer wellness plans and their correlation with existing antidiscrimination laws, in particular the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). Those laws generally prohibit employers from using information about workers’ own health conditions and that of other family members, including spouses, unless the information is collected under a voluntary wellness program. The rules...

3

Feb

2016

EEOC Proposes Complex New Equal Pay Section for the EEO-1

Author: Anonym

On Friday January 29, 2016, the EEOC that it is publishing a Proposed Revision of the Employer Information Report (EEO-1) which would allow it to collect compensation data from all employers with more than 100 employees, not just those that are federal contractors or subcontractors. Employers with 50 to 99 employees that have to file an EEO-1 report will still have to do so, but without the compensation data. Further, beginning in 2017, all filers will be required to submit the proposed EEO-1...

13

Jan

2016

Self-Funded Wellness Plans May Stand Up Against EEOC Attacks

Author: Anonym

How the Americans with Disability Act (ADA) impacts wellness programs still makes employers’ heads spin.  On the one hand, the Affordable Care Act (ACA) encourages such programs as a way to control costs. On the other hand, the EEOC has the opinion that such programs can be used only in limited ways. The result is that many employers are shying away from wellness programs.

23

Dec

2015

Court of Appeals Continues to Uphold Employer’s Separation Agreement Rights

Author: Anonym

Last week the 7th Circuit Court of Appeals upheld a lower court’s decision that supported the right of the employer and employee to agree not bring legal complaints or charges against it in exchange for consideration (usually additional compensation beyond what they were entitled to during employment). The EEOC had brought a complaint against CVS Pharmacies challenging the pharmacy chain’s practice of including a term that the EEOC believed could deter terminated employees from...

21

Jan

2015

Employers Beware: In-House Background Checks Can Cost Far More Than They Save

Author: Nicole Sitter

The employment rate in Michigan continues to rise (93.3% in November), and the vast majority (87% in 2012, according to a SHRM poll) of employers are including criminal background checks on at least some of their job candidates in their candidate screening practices. However, while a majority of employers in metropolitan Detroit outsource their background checks to consumer reporting agencies (such as ASE), some conduct their background checks in-house in order to save money. Most...

14

Jan

2015

High-Profile Cases Signal Pregnancy Discrimination Charges on the Rise

Author: Kristen Cifolelli

Employers should be aware that Pregnancy Discrimination claims filed with the EEOC are on the rise and some are also in the media spotlight, which typically means more such cases are on the way. Pregnancy discrimination charges filed with the EEOC and Fair Employment Practices Agencies increased by nearly 47% from 1997 through 2011 (the last year in which states and the federal government both reported their numbers). Women constitute 50% of the workforce, and approximately 75% of them will...

12

Nov

2014

“Won’t fit in” is No Defense in a Failure-to-Hire Action

Author: Anonym

Generally when two or three candidates are in the final round of interviews, the question usually is not whether they can do the job but whether they can be successful in the organization.  Every culture is different, but the determination of “fit” is a subjective one.  Because of that subjectivity it is usually a terrible defense in a failure-to-hire case. Abrams, an African-American male, joined the Connecticut Department of Public Security (DPS) in 1986. In 1990, he...
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