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…

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

Determining pay based on gender is wrong. It’s also pernicious. The domino effect of an inappropriately depressed starting wage can impact pay for one’s lifetime. It’s also illegal under Federal and State anti-discrimination laws; pay decisions must be based on the job, not protected characteristics, including a person’s gender. Beyond these laws, which often address alleged violations after-the-fact, pay equity increasingly is being dealt with by State laws prohibiting inquiries about past salary and/or that require employers to provide applicants with salary ranges for the job they are seeking. The goal is to head off discrimination and stop the dominos from tumbling toward a lifetime of depressed wages. All of these laws are premised on the statistics that show women earn roughly 83 % of wages earned by men.

Continue Reading Pay Equity – What’s Good for the Gander is Good for the Goose?

Is it in effect or not? Do employers have to comply or not? Yes, everyone is confused. So here’s a quick overview of the very messy situation.

As you all undoubtedly know by now, on November 4, 2021, the Occupational Safety and Health Administration issued the promised/threatened Emergency Temporary Standard compelling employers with 100+ employees to require employees to be either (1) vaccinated or (2) subject to weekly testing and face covering mandates. (We wrote about the ETS in detail here).  The ETS took effect on November 5, although it set a December 6, 2021 compliance deadline for everything but the testing requirement, which has a January 4, 2022 deadline.
Continue Reading Wait – What Is Going On With the Vax-or-Test ETS?!!