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

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

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

Although COVID-19 is still very much present, we see improvement in the COVID-19 numbers, and the Centers for Disease Control and Prevention (CDC) has now significantly eased their mask recommendations– although not entirely. Employers may wish to review their workplace masking requirements and other COVID-19 protocols in light of the new guidance, as well as the diminishing restrictions at the state and local level.
Continue Reading What the CDC’s Latest Mask Guidance Means for Employers

Is it considered identify theft? Interview fraud? Maybe something like the prank that Jim and Pam pulled on Dwight when they replaced Jim with an actor? Whatever it is, employers should beware that applicants are no longer just puffing the proficiency of their skills, but have come up with surprisingly bold and creative ways to fraudulently secure a job through the virtual interview process.

One recent example of what the New York Times terms “extensive image creation” was reported by askamanager.org. A company’s new hire turned out not to be the same person that was interviewed for the position. After three rounds of interviews, one of the hiring managers noticed that something was off with their new hire after a little over a week on the job. The first signs that something was afoot included the new hire wearing glasses when he had worn none during his interview, and he had completely different hair. The new hire had previously made references to being single during his interview from an indoor desk area, but he now spoke with coworkers about having to work in the garage because his three children and wife were at home. He also “re-introduced” himself to an HR Business Partner who was on two of three rounds of interviews and had extensive discussions with the new hire. Even more, the new hire couldn’t answer questions which were pivotal to the position even though they were previously confidently and articulately discussed in the interview.

Continue Reading Who are you and what did you do with my job candidate?

Here’s another entry in our occasional series of really bad behavior in the workplace – police officers who decided to continue playing Pokémon Go rather than respond to a robbery in progress! And then had the chutzpah to challenge their firing despite the fact that their gaming activity – and astonishing decision not to respond to the call for assistance with the robbery – was recorded by their in-car video-system!

Continue Reading Extraordinary Workplace Misconduct: No Pokémon Go While Policing!!

In our occasional series spotlighting outrageous workplace conduct, we have come across an incredible, albeit petty, means of payment: pennies. Rarely does the inconsequential piece of copper find itself in the headlines. But, one former employee likely saw enough pennies in one day to last him a lifetime.

Continue Reading Extraordinary Workplace Misconduct: Petty Pennies

On January 25, 2022, the Occupational Safety and Health Administration announced that it was withdrawing its beleaguered Emergency Temporary Standard that required employers with 100+ employees to mandate employees to be vaccinated or subject to weekly COVID-19 testing. With this action, the vax-or-test mandate is no more – for now. However, healthcare employers should be aware that, in addition to the Center for Medicare and Medicaid Services’ vaccine mandate that was recently allowed to take effect by the Supreme Court, they will soon be subject to a permanent standard replacing the healthcare ETS that OSHA previously withdrew in December 2021. 
Continue Reading OSHA Withdraws Vax-or-Test ETS, Plans to Issue Permanent Healthcare Standard