In this third (and final) post of our mini-series based on the Equal Employment Opportunity Commission’s pay discrimination article, we’ll take a look at the barriers to pay equity identified by the EEOC and their suggestions for preventing pay discrimination. As previously noted, the EEOC issues a quarterly digest of EEO law that sometimes includes an article, like this one, providing insight into the EEOC’s approach to (and expansion of!) discrimination protections for employees. Again, while the EEOC’s article is focused on the federal workplace, many of their observations and action items are equally applicable to the private workplace. Our first post discussed pay discrimination claims under the Equal Pay Act and Title VII, and the second addressed the intersectionality and sex-plus discrimination theories. So now we move from the legal theories to the practical considerations.

Continue Reading The EEOC Speaks: Pay Discrimination – Barriers and Suggested Actions

In my first blog post in this little series based on the Equal Employment Opportunity Commission’s article “In Pursuit of Pay Examining Barriers to Equal Pay, Intersectional Discrimination Theory, and Recent Pay Equity Initiatives,” I covered the EEOC’s explanation of the difference between pay discrimination claims under the Equal Pay Act and Title VII. (As I explained last time, the EEOC issues a quarterly Digest of EEO Law that occasionally contains articles of interest to the private employer community. Prior articles that I’ve shared include those on fragmentation of harassment claims,  religious discrimination, comparing harassment prevention to crime prevention, and new types of race discrimination, among other things). In this post, we’ll review the EEOC’s take on intersectionality (one of the EEOC’s new favorite topics) and sex-plus discrimination in the context of pay discrimination claims. Continue Reading The EEOC Speaks: Pay Discrimination – Intersectionality and Sex-Plus

So, as you may or may not know, I periodically review the Equal Employment Opportunity Commission’s quarterly Digest of Equal Employment Opportunity Law for fun. (I know, I need a better hobby). Among the summaries of recent EEOC decisions and federal court opinions related to the federal workplace, a digest might also contain an in-depth article on a particularly hot area of interest to the EEOC. Although the articles are targeted towards federal agencies, as I’ve previously noted, they offer private employers a roadmap as to the EEOC’s thinking. And the most recent article is just chock full of interesting tidbits about pay discrimination – a topic of particular focus for the Biden administration. In fact, the article is so jam-packed, I’m going to break it up into a few different blog posts, starting off with this one, which covers the EEOC’s discussion of the  Equal Pay Act v. Title VII. I’ve boiled down the EEOC’s discussion into a more direct comparison of the differences.

Continue Reading The EEOC Speaks: Pay Discrimination – the EPA v. Title VII

In all states but Montana, employment is presumed to be at-will, meaning that either the employer or the employee may terminate the employment relationship at any time, with or without cause or notice. That is, EXCEPT if there’s an employment contract (including a collective bargaining agreement for unionized employees) or where the termination would violate a law (like anti-discrimination statutes or other statutes that specifically prohibit termination for exercising certain employee rights, like taking protected leave) – or (of relevance here) where it would violate public policy.

Continue Reading Is the Right to Self-Defense an Exception to Employment-at-Will?

While there are plenty of employees who legitimately need and appropriately use Family and Medical Leave Act leave, there are some bad apples out there who abuse FMLA leave, typically to cover a day off here and there – and employers are often frustrated with how to deal with them. While the FMLA itself provides some limited recourse (mostly in terms of certifications and recertifications) for employers to question overall patterns of use, it doesn’t really address specific incidents of intermittent leave use. So what can employers do? Well, one option might be to hire a private investigator.

Continue Reading Employers May Use a Private Investigator to Validate an Employee’s Use of FMLA Leave

In the latest entry in our series on extraordinary workplace misconduct, we must come to terms with the fact that not everyone loves birthdays or surprises. And, when an employee tells you that they don’t want a surprise birthday party, you’d best oblige them or you could face a discrimination suit and a nearly half a million-dollar jury verdict!

As the Washington Post, New York Times, and our Twitter scrolling reported, a Kentucky-based medical laboratory, Gravity Diagnostics, was found liable by a jury for disability discrimination when it fired an employee who suffered from an anxiety disorder that caused panic attacks. As a result, the jury awarded $450,000 in damages for lost wages and emotional distress. However, it’s the series of events that prompted the employer’s actions that are truly extraordinary.

Continue Reading Extraordinary Workplace Misconduct: Celebrating you is a piece of cake…

The Maryland General Assembly’s 2022 session ended at midnight on Monday, April 11. There were a number of bills passed of significance to employers, including the creation of a paid family leave program, an expanded definition of illegal harassment, an extension of the statute of limitations for employment discrimination and harassment claims, reasonable accommodations for applicants with disabilities, the possibility of recreational marijuana, revisions to Maryland’s Personal Information Protection law, and Juneteenth as a new State holiday. For more details about each of these bills and information about our upcoming webinar on April 28, 2022 to provide guidance on compliance, click here.

Continue Reading New Employment Laws in Maryland – Paid Family and Medical Leave, Expanded Definition of Harassment, Disability Accommodations and More (and a Webinar!)

If this bill becomes law, it will have a significant impact on all employers with Maryland employees. It provides for up to 12 weeks of paid leave for reasons that are mostly covered by the federal Family and Medical Act, and an additional 12 weeks if an employee requires both leave for their own serious health condition and to care for a child after birth/adoption/foster placement. There are many reasons why this bill is problematic for employers, as detailed below, which is why the Maryland Chamber of Commerce is urging employers to support a veto by Governor Hogan and to contact their state Senators to request that they not override any veto.

Continue Reading The Maryland General Assembly Just Passed Paid Family and Medical Leave – What’s Next for Employers?

In last month’s Top Tip, we noted that, even though the Vax-or-Test Emergency Temporary Standard is no more, the federal Occupational Safety and Health Administration can still hold employers liable for failing to protect workers from COVID-19 under existing safety standards. And now we remind you that state OSH agencies may also get involved, as the State of Washington’s Department of Labor & Industries (WDL&I) demonstrated this month when it imposed more than $285,000 in fines in connection with a COVID-19 outbreak at a multi-employer warehouse. Continue Reading TOP TIP: Employers – State Safety and Health Departments Can Find COVID Violations Too!

With the play-in games underway, March Madness has officially descended upon employers everywhere. An estimated 40 million Americans will fill out tournament brackets, and chances are all of them will be imperfect (1 in 120.2 billion to be exact, and that’s only if you know a little bit about basketball).  During this time of the year, employers should keep in mind legal implications of any office bracket pools, and should plan to keep a closer eye on productivity given how much is typically lost in March.  Whether employees are working from home or from the office, chances are they may use their work time to make picks. And when the tournament begins, you can be sure that many employees will be checking scores during their work time, if not actually watching the game. This post will serve as a helpful guide to employers on March Madness issues  in the workplace, including gambling and lost productivity, and will provide helpful recommendations on how employers should navigate them.

Continue Reading An (Updated) Employer’s Guide to March Madness