Kentucky Employment Lawyer Blog

As the Indiana legislature enters its final session for 2011, Republicans vowed to make their "right-to-work" bill the main focus of the session. This topic is very controversial and caused Democrats to leave the state for five weeks earlier this year to avoid voting on the issue. Both parties have differing views on whether or not it would be beneficial to Indiana employees to have their state become the twenty-third "right-to-work" state.

"Right-to-work" laws are passed on a state-per-state basis and allow individuals to be employed by a company that has union workers without joining the union. Members can opt out of paying membership dues but still reap the benefits of being part of a union. This option was given to each state in the U.S. by a portion the Taft-Hartley Act that essentially gives the states the power to decide whether employers can require employees to financially support the union. Non "right-to-work" states, such as Kentucky and Indiana can have so-called "union shops," or companies that require their employees to be union members and pay dues. Recently hired employees that are not union members have a set period of time to become members; otherwise they may forfeit their employment.

Supporters of the legislation believe potential Indiana jobs are being lost because employers prefer basing their businesses in "right-to-work" states that give employees the choice of joining unions. Gov. Mitch Daniels stated "We miss about a third of the opportunities because businesses want a state where this protection is provided to workers. In this tough economy, the state needs every edge it can get." Some employees object to paying dues to a union that may support political agendas that conflict with their own personal political beliefs. Others may not wish to join a union for personal reasons. In non "right-to-work" states, potential employees are denied this choice if they consider jobs at companies that require union membership and union financial support.

Opponents of "right-to-work" laws often call them "right-to-work-for-less" laws because they feel a union is weakened when all employees are not required to participate or contribute. Employees that do not pay dues are still allowed to use union services, including legal representation, which many feel takes away money that should be used to represent dues-paying union members seeking higher wages and improved workplace safety.

Continue reading "How Passage of a "Right-to-Work" Bill Would Affect Indiana Employees" »

On November 16, 2011 the Equal Employment Opportunity Commission (EEOC) approved proposed changes to the 1967 Age Discrimination in Employment Act (ADEA), which protects employees over the age of 40. The proposed changes will now be sent to the Office of Management and Budget (OMB) at the White House. If the OMB approves the changes, they will be returned to the EEOC for final approval. The proposed changes are in response to recent Supreme Court cases regarding disparate impact claims and "reasonable factors other than age" (RFOA) defenses.

Disparate impact occurs when an employer's actions affect a protected class inadvertently. These claims frequently arise from staff-reduction cuts or the implementation of new compensation programs. While the discrimination is not intentional, a protected group is negatively affected by the decision. In response to disparate impact claims related to age, employers often use the "reasonable factors other than age" defense, stating the changes made were not based on age, but were made for other reasons. In this proposed amendment, the EEOC gives guidelines regarding whether or not a factor is reasonable and if the factor was based on something other than age.

To test reasonableness, the EEOC lists the following factors:

• whether the employment practice and the manner of its implementation are common business practices;
• the extent to which the factor is related to the employer's stated business goal;
• the extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately (e.g., training, guidance, instruction of managers);
• the extent to which the employer took steps to assess the adverse impact of its employment practice on older workers;
• the severity of the harm to individuals within the protected age group, in terms of both the degree of injury and the numbers of persons adversely affected, and the extent to which the employer took preventive or corrective steps to minimize the severity of the harm, in light of the burden of undertaking such steps; and
• whether other options were available and the reasons the employer selected the option it did.

Whether or not a decision was based on something other than age can be checked by the following:

• the extent to which the employer gave supervisors unchecked discretion to assess employees subjectively;
• the extent to which supervisors were asked to evaluate employees based on factors known to be subject to age-based stereotypes; and
• the extent to which supervisors were given guidance or training about how to apply the factors and avoid discrimination.

Continue reading "Proposed Changes to Age Discrimination Law Approved by EEOC" »