As you may know, I enjoy the cases where the tables are turned – like my colleague Jason Usher’s post on “Union Violates Employee’s Labor Rights” or my blog on “EEOC Sued For Failing to Accommodate Employee’s Disability.” Here’s another.

From time to time, my clients have had to deal with lying employees. They lie in an investigation, they lie to the federal agencies like the Equal Employment Opportunity Commission or the Department of Labor, they lie in depositions and at trial. And they’re good at it – it’s often hard to prove that they are lying, which is incredibly frustrating to my clients and to m Continue Reading Lying Employee Faces Prison Time

The Maryland 2016 legislative session endedshadow-dollar-sign-1239535 on Monday.  A friend of mine mentioned that she heard the General Assembly passed an equal pay law in Maryland. But guess what? There is already an Equal Pay for Equal Work law in Maryland – it’s been in place for almost 25 years!! The current law already prohibits employers from discriminating against employees of one sex who work in the “same establishment” and perform work of comparable character or work in the same operation, in the same business, or of the same type by paying a lesser wage than an employee of another sex.

The equal pay bill mentioned, House Bill 1003, expands the prohibitions on discriminatory pay practices. It also adds an entirely new pay transparency provision. Specifically: Continue Reading “New” Equal Pay Bill for Maryland

Although the government is often a thorn in the side of many of our clients, it is not every day that we decide to sue the government. Today was a different story.

On March 31, 2016, Shawe Rosenthal, on behalf of the Worklaw®Network, a nationwide association of independent labor and employment law firms of which we are a member, filed suit against the U.S. Department of Labor to block the Department’s new interpretation of the persuader rule. A copy of the complaint can be viewed here.

We discussed the new persuader rule in a previous post. To reiterate briefly, a federal law called the Labor-Management Reporting and Disclosure Act requires people who assist employers to fend off union organizing drives to file reports with the Department of Labor. The law contains an “advice exemption” under which employers and their attorneys do not have to report confidential information protected by the attorney-client relationship.  For decades, the Department has correctly held that the “advice exemption” applies to lawyers who advise clients concerning union organizing drives, as long as the lawyers do not communicate directly with employees.  Under the new interpretation, effective July 1, 2016, the Department has substantially narrowed the advice exemption.  (Actually, the Department would say it substantially narrowed the exemption.  I would say the Department completely eliminated it.) Continue Reading Shawe Rosenthal and Worklaw Just Sued the DOL

On March 23, 2016, the Department of Labor released the long-pending revisions to the “persuader rule,” drastically expanding employers’ disclosure requirements regarding their use of union avoidance consultants, including attorneys as well as HR consultants and media specialists. Our firm, on behalf of Worklaw, an international management-side network of labor and employment firms, will be filing suit to block implementation of the rule.

Under the “persuader rule” in the Labor-Management Reporting Disclosure Act of 1959 (LMRDA), employers are required to file reports and disclose expenditures to the DOL each time they engage a consultant to persuade employees regarding employees’ rights to organize. However, the LMRDA provides an “advice exception,” which had been interpreted for over 50 years to exclude an employer’s discussions with its labor relations consultants – including legal counsel – regarding opposition to a union organizing campaign, as long as the consultants had no direct contact with employees.

Under the new rule, however, the scope of an employer’s reporting obligations under the LMRDA has been substantially expanded, and will include a broad range of activities beyond “direct contact” provided by labor relations consultants – including attorneys. The intent of this one-sided rule is to discourage employers from retaining such consultants, and thereby promote unionization. Continue Reading DOL Issues Persuader Rule

RookFollowing up on my last post about menstrual leave, I heard about another odd leave being offered by a few employers – pet bereavement leave (I also saw a reference to “peternity” leave). Unlike menstrual leave, this is not legally required in any country. But apparently it’s not entirely uncommon among those dog-crazy folks in the U.K. In the U.S., however, there are only a few companies that formally offer this type of leave, as a recent CBS Miami news story notes. In particular, Kimpton Hotels and Restaurants allows managers to grant up to three days off for grieving pet parents, while pet insurance company Trupanion grants one day of bereavement leave.

Why is the leave needed? Sandra Grossman, a pet loss counselor, told the Wall Street Journal in an article on “The Challenge of Grieving for a Pet at Work,” most grieving pet owners need up to a week away from work to get over the initial shock. In addition, a survey referenced in that article noted that nearly 1 in 3 people feel grief and sadness for at least 6 months after the pet’s death.

Continue Reading Pet Bereavement Leave?

Last week, I heard about a British company, Coexist, that is planning to develop a “period policy” to provide menstrual leave to its female employees. As a female employment attorney, I’m a strong believer in equal rights for women, but this notion struck me as so very … odd. Initially, I wasn’t quite sure what to make of it, but intuitively it just seemed like a bad idea to me.

So I did a little research, and it turns out that menstrual leave is actually a legal right in certain Asian countries. In 1947, Japan was the first to pass a menstrual leave law. Since then, Indonesia, the Philippines, South Korea and, most recently in 2013, Taiwan, have also enacted such laws. The laws vary as to whether the leave is paid, half-paid, or unpaid, and how much time off may be taken (e.g. as needed each month, X days per month, X days per year). These laws, however, have proven to be controversial, and their effectiveness has been questioned.red-dot

Many argue that the laws perpetuate stereotypes of women as the weaker sex. Some male rights activists (yes, they exist) argue that these laws discriminate against men. One commentator, Tim Worstall at Forbes.com, noted that a new type of paid leave will increase employer costs – and the fact that the paid leave is only available to female employees will likely exacerbate the gender pay gap. Many employers in those countries ignore the laws. And, frankly, it seems that most women are afraid to come forward to ask for menstrual leave, for various reasons – embarrassment, not wanting to burden fellow employees, fear of discrimination or retaliation, etc.

Continue Reading Menstrual Leave – Really?

As a follow up to my last post on political discussions in the workplace, I thought it might be helpful to employers to discuss other, material aspects of politics in the workplace – such as campaign posters, flyers, buttons, and clothing.

Given that, as we now know, you can ban (most) political speech in the workplace, most of you will not be surprised that you can ban (most) political paraphernalia in the workplace. There are caveats, of course.donkey-and-elephant

First, you may have a solicitation and distribution policy that would prohibit posters (soliciting political support) in employees’ workspaces, or the distribution of political flyers in working areas. Similarly, your dress code policy may instruct employees that they may not wear clothing with slogans or words (political or otherwise).

Continue Reading Political Paraphernalia in the Workplace

Well, regardless of your political leanings, it’s definitely been an interesting political season. I have witnessed several heated political discussions among my acquaintances, and even in my family (let’s just say that my crazy teenagers don’t share my political views). Although physical violence has not yet been involved, there has been some nasty name-calling. And these conversations can and do occur in the workplace. So what can a private employer do about political discussions in the workplace?

There are no federal laws applicable to private employers that protect employees on the basis of their political affiliation.  (Public employers, however, may be subject to such laws). As far as state laws, only a few – such as California, Louisiana, and the District of Columbia – have enacted laws that prohibit discrimination by private employers against an employee based on political affiliation. Some cities and counties may have local ordinances that also provide such protections. In those jurisdictions, employers cannot take any adverse employment action against an employee simply because he supports a particular political party.

Regardless of whether political affiliation protections exist, however, a private employer can prohibit political discussions in the workplace. “But what about the First Amendment right to free speech?” some may ask. The First Amendment prohibits the federal government from limiting citizens’ free speech rights – but it doesn’t apply to private employers! So employees do not have a right to free speech in a private workplace, and the employer can choose to restrict speech on any topic – including politics.

Of course there are caveats. At least two states – South Carolina and Connecticut – protect freedom of expression. But even there, employers can prohibit political speech if it is disruptive. Of course the employer needs to ensure that it is being consistent in enforcing any speech prohibitions, as political discussions can sometimes implicate other protected characteristics – like race, gender and religion.

In addition, the National Labor Relations Act, which applies to both unionized and non-unionized workplaces, protects employees’ rights to engage in discussions about the terms and conditions of employment. So if the political discussion involves which  political candidate may be better with regard to wages or benefits, for example, that specific discussion may be protected under the NLRA.

So bottom line – employers can generally prohibit political discussions in the workplace – but if you do so, make sure you’re being consistent and careful!

 

Equal pay has become a hot topic on both the state and federal levels. As a woman who is a management-side employment attorney, I sometimes find myself puzzled as to how this topic came to be such a hot button issue, especially since there are already many laws on the books that address equal pay.

On the federal level, we have the Equal Pay Act, Title VII, and the Lily Ledbetter Fair Pay Act, which are enforced by the Equal Employment Opportunity Commission (EEOC). For federal contractors, there are Executive Orders 11246 (affirmative action for women and minorities), 13665 (pay transparency), 13673 (fair pay and safe workplaces), and a Presidential Memorandum on equal pay, all of which are enforced by the Office of Contract Compliance Programs. In Maryland, we have the Maryland Civil Rights Act (the equivalent of Title VII) and the Equal Pay for Equal Work Act. All of these are designed to address and enforce equal pay, regardless of sex or other protected characteristics.

However, just last month, on the 7th anniversary of the signing of his very first law while in office (the Lily Ledbetter Fair Pay Act), President Obama announced that the EEOC was issuing a new rule that would change the EEO-1 reporting requirements for employers with 100 or more employees and for government contractors with more than 50 employees and more than $50,000 in federal contracts or subcontracts. Under the proposed rule, these employers would need to report aggregated data on pay and hours worked by pay bands. A summary of the proposed rule can be found here.

Here in Maryland, there are currently a number of bills pending in the Maryland General Assembly that either amend the Equal Pay for Equal Work Act (to the detriment of employers by either instituting treble damages or other fines and penalties) or create an entirely new Equal Pay Commission, both of which seek to impose more reporting requirements on employers.

While I understand and support the underlying principles of the proposed legislation and regulations, issues arise in instituting these reporting obligations on employers. In addition to the effort and time required for collecting and reporting the data, such reported data does not fully capture the non-discriminatory differences between two individuals. A true assessment of equivalent jobs and the people in those jobs requires a thoughtful and detailed analysis of a multitude factors, including – but certainly not limited to – the following:

  • Performance;
  • Skills;
  • Responsibilities;
  • Seniority;
  • Job knowledge;
  • Industry knowledge;
  • Certifications or licenses;
  • Prior experience;
  • Level of education;
  • Negotiation of starting salary;
  • Salary at prior jobs;
  • The choices individuals make with respect to child rearing or other responsibilities (e.g. choosing to work part time, or not to work overtime, or flexible careers with less earning potential);
  • Market competitiveness;
  • Geographic location.

This nuanced and individual-specific analysis isn’t readily apparent from cold, limited data. I am apprehensive that mandatory reporting will only create more issues for employers when any of these established or potential enforcement agencies come knocking on employers’ doors seeking explanations for what appears to be facially discriminatory – but is not, in fact.

Aside from the significant effort and resulting headaches associated with compiling and reporting the data, another major concern stems from what will happen with this data after it is submitted. The EEOC says that it will use the data to assess complaints of discrimination, focus agency investigations, and identify pay disparities, as well as encourage companies to engage in self-assessment and correction. But questions still remain as to what the EEOC’s evaluation of this data will truly look like. Will it take into account differences in geographic locations, such as cities versus rural areas? Northeast v. Midwest? What about industry distinctions, or non-profit v. for profit institutions? Company size?

And frankly, the data being sought is very similar to what was required by the Equal Opportunity Survey, which was used by the OFCCP from 2000-2005 to collect personnel data, including compensation information, from federal contractors. The EO Survey was abandoned in 2006, after an independent consulting group found that it was ineffective in identifying systemic discrimination!

I am also concerned about the security of this data. We all know that the government isn’t immune from being hacked, so how will the data be submitted in a secure fashion? What will be the fate of this data after it is submitted? Will competitors learn of your wage rates and then attempt to lure away your best employees with an offer of higher pay?

It’s not that I am against equal pay. Indeed, as a woman, that would be just plain ridiculous (of course I want to be paid the same as my equally situated counterparts!). Similarly, I support equal pay for minorities. The point I’m making as a management-side employment attorney is that there are already laws and agencies in place to address equal pay issues. Enacting more laws (with more obligations on employers) and creating even more governmental agencies tasked with investigating discrimination in pay (to no actual effect!), when there are already agencies that do that, is redundant and unnecessarily burdensome on employers.

Mark of the BeastBack around Halloween, we offered you a seasonally appropriate and cautionary tale about accommodating an employee’s religious concerns. As we discussed in that blog about the case of EEOC v. Consol Energy, Inc., the employee refused to use a biometric hand scanner because he was afraid it would reveal or imprint the mark of the beast. Because the mark of the beast is supposed to appear on the right hand, the company told him to use his left hand, but the employee believed that using either hand was a problem. The company refused to permit him to record his time manually or to report it to his supervisor, and the employee chose to retire under protest. The EEOC brought suit against the company on his behalf for failure to provide a reasonable accommodation for his religious beliefs and constructive discharge (i.e. the employee was forced to quit), and the employee was awarded over a half-million dollars in damages- a death knell to the employer’s arguments!

Like a zombie, the employer has returned from the grave to ask the court to throw out the judgment on various grounds. The court’s reaction to the employer’s arguments provide some additional lessons for employers generally. Continue Reading Return of the Beast: Religious Accommodation Redux