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Articles Posted in New Developments in the Law

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Equal pay for women has been an issue for many years. In 1963, the Equal Pay Act was enacted to ensure that men and women who did the same job at the same place of business and had the same experience would receive the same amount of pay. If a discrepancy in pay was found, the lower paying employee, presumably the woman, would receive an increase in pay, rather than the man’s pay being reduced. The act allowed a woman to receive up to three years in back pay, or double that amount if it was discovered that she had been willfully discriminated against in her pay. The slogan for the act was “equal pay for equal work.”

People disagree on whether or not the Equal Pay Act has been affective in ensuring women receive equal pay. Those who feel it has not been affective are promoting a new bill called the Paycheck Fairness Act. This new act adds on to the Equal Pay Act in the following ways:

Clarifies what reasons are acceptable for pay differences between men and women;

allows wages to be compared within certain geographical areas to determine fairness;

makes retaliating against an employee for investigating wage differences prohibited;

increases amount and type of damages that can be requested to both compensate the employee and penalize the employer;

includes small businesses in the law rather than requiring an employer to have a larger number of employees for the law to apply;

provides funds for training EEOC staff regarding pay disputes and for educating women on how to negotiate a salary;

requires federal contractors to provide employment data regarding hiring and salaries to help the Labor Department enforce the Equal Pay Act.

Proponents of the bill say all of these factors would add up to women receiving equal pay in the workplace because it would facilitate investigating the wage gap, protect those who raise the question of unequal pay, impose stiffer penalties for pay discrimination by employers and provide training to those who need it.
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Facebook has become an international phenomenon with millions of users logged in around the globe. Some people have reconnected after years of no communication, and others have forged new relationships through shared friends and interests. As a result of all of this sharing of information, numerous privacy issues have arisen.

One of the latest issues is whether or not employers should have access to employees’ Facebook accounts. While a potential employer may see it as an opportunity to get to know an applicant on a more personal level, it could also lead to a potentially illegal situation.

When applying for a job, there are numerous subjects that should not be addressed by an employer. Applicants should not be asked about their age, marital status, number of children, religious background, or ethnicity. Denying someone a position based on any of these factors would most likely constitute employment discrimination, which is illegal under Title VII of the Civil Rights Act of 1964. Therefore, these topics should not even be brought up by a potential employer.

When an individual uses Facebook, it is under the assumption that the information posted will be viewed by friends and family members, not employers. So the subjects listed above that should not be discussed at a job interview will most likely appear on a Facebook page. Even if this information is not explicitly listed on the person’s profile page, it can normally be gleaned from reading posts and viewing photos.

Some prospective employers try to get around the sticky subject of asking for an applicant’s user name and password. After the ACLU questioned the Maryland Department of Public Safety’s practice of requiring user names and passwords from applicants, the agency changed its policy to requiring the applicant to log into social media sites during the interview. While this gets away from requesting passwords that people should not be asked to share, it still gives the agency access to information that may be covered under Title VII. Other companies have asked applicants to “friend” human resource managers, which also gives them access to the same information that could lead to discriminatory decision-making in the hiring process.
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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.
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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.

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They may be, according to the U.S. Supreme Court. In September, 2002, Miriam Regalado filed a complaint with the Equal Employment Opportunity Commission (EEOC) against North American Stainless that alleged sex discrimination by her superiors. At the time the complaint was filed, Ms. Regalado’s fiancé, Eric Thompson, was also employed by North American Stainless. About three weeks after North American Stainless received notice of Ms. Regalado’s complaint from the EEOC, Mr. Thompson was fired.

Subsequently Mr. Thompson filed his own complaint with the EEOC alleging the company was retaliating against him for Ms. Regalado’s claim, which he asserted is illegal under Title VII of the Discrimination in Employment Act of 1967. Title VII states that an employer cannot retaliate against an employee who has filed a discrimination claim by terminating his employment. Mr. Thompson’s complaint was dismissed by the U.S. District Court for the Eastern District of Kentucky on the grounds that he was not protected by Title VII since he did not file the initial discrimination claim. The decision was upheld by the U.S. Court of Appeals for the Sixth Circuit.

The case was sent to the U.S. Supreme Court, which overturned the lower courts’ decision. The court used a “zone of interest” test to determine if Mr. Thompson had a right to file a claim under Title VII. Per the syllabus of the opinion of the Supreme Court:
“Applying that test here, Thompson falls within the zone of interests protected by Title VII. He was an employee of NAS, and Title VII’s purpose is to protect employees from their employers’ unlawful actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation. Hurting him was the unlawful act by which NAS punished Regalado. Thus, Thompson is a person aggrieved with standing to sue under Title VII.”
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Adolescent bullying is a hot topic right now, and includes face-to-face interactions as well as online activity. Unfortunately for some, the bullying doesn’t end in their teenage years. Recent polls have shown that over 30 percent of working adults feel they have been bullied at work. No one knows for sure why people become bullies. Perhaps they were bullied themselves or they feel insecure. Some research with brain scans has shown that bullies derive pleasure from seeing someone else being hurt. Workplace bullying can include verbal, physical or emotional abuse by an employer or a co-worker.

While workplace bullying has been occurring for years, it is only recently that action has been taken to begin protecting employees both from their superiors and their co-workers. Several movements, including The Healthy Workplace Campaign, have been created to encourage legislators to take action against workplace bullying. Some forms of bullying are covered by current anti-discrimination laws. If an individual is being bullied based on his race, gender, or religious beliefs, he can take legal action under existing laws. However, if the person being bullied is not in a protected class, or if the bully is in the same protected class as the victim, filing a lawsuit becomes much more difficult.

Since 2003, 21 states have introduced workplace bullying legislation. As of today, none of the bills have become law. This legislation differs from anti-discrimination laws. It would cover all individuals, not just those in a protected class; it would make companies liable for bullying being done by co-workers, not just superiors; and it would pertain to companies of any size.

Companies are concerned that this type of legislation could lead to an enormous number of lawsuits, some legitimate, but others frivolous. Some employees may file claims simply because they were disciplined, or because they were unhappy with a review. The proposed bill in New York hopes to curb some of the unnecessary lawsuits by making employers not liable if the proper bullying prevention and correction techniques are in place. Another way a company can protect itself is to try to identify and turn away potential bullies when interviewing job applicants.
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Earlier this month, the U.S. Department of Labor released Fact Sheet #73 about Break Times for Nursing Mothers under the FLSA. The Patient Protection and Affordable Care Act (“PPACA”) went into effect on March 23, 2010 amending part of the Fair Labor Standards Act.Under this law, employers are required to provide “reasonable break time” to a non-exempt employee to express breast milk for up to a year following the child’s birth. “Reasonable break time” is flexible and varies in frequency and duration according to the mother’s needs.

Further, employers need to provide a private space other than a bathroom to shield the woman from coworkers and the public. Employers are not required to pay employees for the this break time unless the employer already provides compensated break time.
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Kentucky Discrimination Attorneys are anxious to hear the US Supreme Court decision in the case Thompson v. North American Stainless.The Court agreed on June 29, 2010, to hear the case. While it will not be argued until the fall, the case will take a critical look at whether employers can legally retaliate against a complainant’s family members when an employee reports illegal discrimination or harassment in the workplace.

In the Thompson case, both Mr. Thompson and his finance, Miriam Regalado, worked for North American Stainless. Mr. Thompson had worked for the company for over six years, and it was known throughout the company that they were dating. Ms. Regalado complained of workplace gender discrimination to the EEOC. A few weeks later, Mr. Thompson was terminated.
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Kentucky employment lawyers are excited about the latest Administrator’s Interpretation from the Department of Labor. On June 22, 2010 Deputy Administrator Nancy Leppink clarified when an employee standing in loco parentis may take FMLA leave for birth, bonding, and to care for the child.Typically, employees eligible for Family Medical Leave may take up to twelve weeks of leave each year to for the birth or placement of a child, to bond with a newborn or newly placed child, or to care for a child with a serious health condition. 29 U.S.C. §2612(a)(1)(A)-(C). In recent years, with ever expanding family units, more and more people wonder the extent of the definition in loco parentis.

As the opinion points out, Congress intended the definition of “son or daughter” to include children outside of traditional families, including “adoptive, step, or foster parents, their guardians or sometimes simply their grandparents or other relatives or adults.” See S.Rep. No. 103-2, at 22.
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Last week, the United Supreme Court did something unusual: they all agreed that text messages on pagers issued to government employees can be searched as long as the government’s acts are reasonable and motivated by a legitimate work-related purpose. See Ontario v. Quon, 560 U.S. __ (2010).

Typically, employees in the private sector have a very low expectation of privacy. Public employees, however, are protected by the 4th Amendment which prohibits “unreasonable searches and seizures.” This rule has been extended to include not just criminal investigations but also other actions taken by governments including investigations into their own employees. Treasury Employees v. Von Raab, 489 U.S. 656,665 (1989).

In Ontario v. Quon, employees were issued pagers with text messaging capabilities. The government was charged overages when employees used exceeded a particular character allotment on the text messages. For several months Quon, an employee issued a pager, exceeded the character allotment and personally paid the overage. His supervisors, wanting to assure that the overages were not being caused by work related text messages, reviewed a sample of texts that Quon made during work hours. Unfortunately, Quon sent some sexually explicit texts which resulted in discipline.
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