Posted by marykeating on November 29, 2010 under Wage and hour issues | 
When the Inner Harbor’s ESPN Zone closed without much advance notice (in the summer, too, when one would think tourism would increase the patronage), 150 workers lost their jobs. They filed a class action suit in federal court to protest the company’s failure to comply with the WARN Act, which requires 60 days’ notice of large-scale layoffs.
A blog post describing the suit, the campaign for a living wage at downtown restaurants and stores whose owners have received taxpayer subsidies, and the experiences of some of the laid-off workers, is here.
Posted by marykeating on November 18, 2010 under Federal wage and hour law, Sex-based discrimination, retaliation |
The Senate (which remains Democratic after the election) failed to pass the Paycheck Fairness Act yesterday. While the Senate had the votes to pass the measure, which passed the House 2 years ago, it lacked enough of a majority to invoke cloture, and shut down a Republican filibuster. The Republican argument is that this law would encourage litigation and impose damages on employers. The other side is that if an employer is discriminating against women in wage rates, it should have to answer for the disparity. The Equal Pay Act “has not worked as Congress originally intended,” according to the findings of the bill. Under the bill, employers who enforce secrecy about their employees’ wages could be liable for a retaliation claim. The White House and the Department of Labor issued statements registering their disappointment.
The Republican opposition argues that this law would encourage litigation and impose damages on small employers. Opponents also argue that the wage disparity is explained by “personal choices” (yes! Back to family responsibility discrimination!) that lead women to opt for part-time work more often than men, or take leaves from their career paths.
An interesting article addresses this popular belief, and dispels its logical force with data. After taking into account part-time work, length of employment, and other factors relating to the “mommy track,” the effect of discrimination is still stronger than the laws of supply and demand. One interesting example arises in the field of nursing. Nursing instructors (mostly women) earn less than males college instructors teaching other courses. The disparity is so great that nursing teachers earn less than nurses, therefore it is hard to fill the teaching positions. Hence, the nursing shortage.
Posted by marykeating on November 16, 2010 under Discrimination in employment |
Just about a year ago, the Genetic Information Nondiscrimination Act (with the friendly acronym “Gina”) became law. The law prohibits discrimination based on an employee’s genetic information and, perhaps more importantly, protects against compelled disclosure of the information. Unlike some laws which are put into place to right many previous wrongs, this one seems to have anticipated the possibility that the proliferation of genetic tests would lead to some problems. It’s easy to imagine health insurance denials, and discrimination against people believed to have a tendency to develop a disease, for example. I have not heard from anyone with a GINA complaint.
The law is staying ahead of the curve. New regulations from the EEOC take effect in January, and they make clear that employers who otherwise have a right to receive medical information on their employees must disclose that genetic information should be shielded. When an employer requests medical information in order to evaluate a request for Family and Medical Leave, for example, it must direct the individual and/or health care provider from whom it requested medical information not to provide genetic information. The regulations provide this format as an acceptable notification:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic Information” as defined by GINA includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
This warning language is also appropriate when an employer seeks medical information to deal with a request for accommodation under the Americans with Disabilities Act.
Posted by marykeating on November 10, 2010 under Pending legislation, Race-based discrimination |
The Equal Employment Opportunity Commission has taken a harder look at the practice of checking the credit of potential employees. The EEOC held a hearing last month to get a variety of viewpoints on the issue. The human aspect cries out for reform. As high unemployment continues, many people have suffered dings or worse to their credit report. A repossessed car, late payments on credit card, a foreclosure, all make a credit report look bad. But if these were caused by unexpected unemployment, does the negative rating predict a bad employee? One might say that no, having been through these hardships someone may work hard to be the best, and avoid another layoff.
The employer’s point of view often hinges on the possibility that the credit report may flag someone with a history of money problems, which may indicate the embezzler-to-be. There are some problems with this logic. First of all, many employees are not in the position to deal with the employee’s money. Secondly, skilled embezzlers probably do not have money problems of the kind that show up on credit reports. Third, the use of credit reports weeds out African-Americans and Hispanics at a disproportionate rate, according to the EEOC. It may also hurt recently divorced women, young workers, and people who have had large medical bills.
Speakers at the hearing mentioned that the Fair Credit Reporting Act has safeguards, including requiring the applicants to authorize the check, and requiring the employer who used the report to reject the application to say so. Cold comfort to an applicant faced with a sign this or else ultimatum.
http://www.eeoc.gov/eeoc/meetings/10-20-10/index.cfm
Using such a blunt tool does not belong in a meritocracy. A law pending in Congress, the Equal Employment for All Act, would add safeguards but still allow use of credit reports to screen applicants for a few categories of jobs, such as national security and financial institution supervisors. It is languishing in the House, although a hearing was held by the Subcommittee on Financial Institutions and Consumer Credit.
Posted by marykeating on November 9, 2010 under Family responsibility, Sex-based discrimination |
More news from the work-life balance front. A former vice president of Goldman Sachs asked for a part-time position after she had a baby. She was eventually fired, and filed suit claiming that the firm purposely gave an “off-ramp” to mothers, but no “on-ramp” that allowed her to resume her career path. After having her children, she was demoted, removed from her office, and fired while on her second maternity leave.
Goldman Sachs settled the case, the details are confidential.
People have been scornful of the “mommy track” for years, while companies publicly wring their figurative hands on how to increase diversity and keep people in the fold who need or want some kind of flexible schedule. I think and hope that as time passes, we will get more places that mean it.
Posted by marykeating on November 5, 2010 under Family responsibility |
The Center for Work Life Law is a nonprofit research and advocacy group with a laser-like focus on life balance for everyone who works. Though it’s based out of the University of California, Hastings College of the Law (where I spent many many hours studying for the bar exam), there is a DC office which keeps good track of Maryland laws and cases.
I’m reminded by the DC resident lawyer and senior advisor, Cynthia Thomas Calvert, that I was a little too negative and incomplete on the post about family responsibility discrimination. Specifically, I said, “We do not have a law in this State outlawing family responsibility discrimination” That is true statewide, that we do not outlaw discriminatory practices based solely on parental or other caregiver status. But there are several counties (Frederick and Montgomery, explicitly, and Howard and Prince George’s, with vaguer language) and the City of Cumberland with local laws outlawing family responsibility discrimination. In addition, there can be a gender discrimination case where women (or a specific woman) is assumed to be of lesser value than a man because of her family responsibilities. Finally, there may be protection under the Family and Medical Leave Act governing larger employers.
So, depending on the facts of the situation and the location of the employer, there may be legal protection. See the latest blog post by the Center for WorkLife Law, on a company specifically weeding out people with childcare concerns, reminiscent of “Irish Need Not Apply,” “Whites Only,” and “Girl Friday Wanted.” As the work of the WorkLife Law Center makes clear, there is a lot of work to be done on our laws and on our view of whether work must be the extreme dictator of every adult’s life.
Posted by marykeating on November 3, 2010 under Family responsibility |
Don’t know much about history. Don’t know much biology. What I do know is that “men are big and strong and women have babies.” Therefore “women are made to care for the family,” and “men can be counted on to work long hours to bring home the bacon.”
Sounds like the early 60s, like the song quoted? Sure, but these attitudes are still alive and well. We do not have a law in this State outlawing family responsibility discrimination. Women who are caring for young babies can be overlooked for promotions merely on the assumption that they can’t be counted on to give work priority. But men are subject to antiquated assumptions too: men are assumed to be available for assignments outside of the normal work day, because fathers don’t care about soccer games or ballet recitals. “Men don’t take off serious time when a baby is born.” “Women can’t be counted on to return after a baby is born.”
If we can’t have a law to stop the discrimination, we can work to change the attitudes. Joan Williams blogged about the subject of her new book, titled Reshaping the Work-Family Debate: Why Men and Class Matter. The book talks about professional men and how they are burdened by the assumptions that they live for work and success. She estimates it will take another half-dozen years to continue the discussion about men in the workplace who want to focus on their families (or other interests), too, before we arrive at a more balanced outlook of the issue. That is not to say that the issue will be solved, but we may be past some of the stigma of a man asking for time off for family priorities.
Posted by marykeating on November 2, 2010 under Federal wage and hour law, Pending legislation, Sex-based discrimination |
Two authors just issued an analysis for the Congressional Research Service focused on the persistent problem of the inequality of women’s pay. Several decades after a shake up of cultural norms sent legions of women to work, women as a group still make less money than men. Many women see this inequality close to home, in their own workplaces, or their own professions.
Analyzing the root causes requires a look at several factors. The lingering effects of the undervaluing of “women’s work,” such as teaching, and the high value given to work requiring muscle, such as shipping, can contribute to the overall oddities in pay scales. Other theories look at the higher prevalence of men in union jobs, which often command higher wages. Still others focus more on the difference between men and women, as opposed to difference in the jobs, since overall women are more likely to work fewer hours since they still have the bulk of the responsibility for child care and family responsibilities. Comparisons of women with the same education level as men show the men paid far more.
The analysis discusses the existing and some proposed laws to equalize the field. The Equal Pay Act requires men and women doing the same job to be paid the same. The Paycheck Fairness Act, introduced in the Senate, and passed in the House, would expand the reach of the law. With the change in Congress, it may be a dead issue this term.
