Posted by marykeating on May 11, 2012 under Economic situation, Family responsibility, Pending legislation, Sex-based discrimination | 
Congress will consider a new bill called the Pregnancy Fairness Act, designed to improve the rights of pregnant workers against endemic discrimination. The bill was introduced on Wednesday in the House.
The ways in which courts have limited pregnancy discrimination laws are well described in this article.
The new law would require employers to make reasonable accommodations to their pregnant workers, similar to requirements under the Americans with Disabilities Act. Like the ADA, it would apply only to employers with at least 15 employees.
Pregnancy discrimination appears to be on the rise, based on the calls I have been receiving. The worker who loses her job because she is pregnant is in a triple bind: she loses income, she loses her health care benefits when she needs them most, and she is less likely to be considered for a job, since she will need a leave of absence in the coming months. Many pregnant women are capable of continuing their work through term, but may occasionally need to sit down, visit a restroom more often, or refrain from heavy lifting. If an employee’s job is “Heavy Lifter,” perhaps no accommodations can be considered reasonable. But for most employees some simple consideration can keep them working.
Posted by marykeating on April 17, 2012 under Pending legislation, Sex-based discrimination, Wage and hour issues |
Today is special. Tax returns are due, two days later than usual. And it’s Equal Pay Day! That’s the day in 2012 on which women have earned the same as men did for 2011 work. “Each year, National Equal Pay Day reflects how far into the current year women must work to match what men earned in the previous year.”
The Department of Labor has a section on its website devoted to Equal Pay issues. But despite the law, which has been in effect since 1963, women continue to be paid less than men overall, and less than men for the same job. President Obama’s first signed law was the Lilly Ledbetter Fair Pay Act, to overturn a hostile Supreme Court decision.
Equal Pay act cases are still difficult to prove unless the workers have extremely similar jobs. While I doubt this was the intention of lawmakers, judges have approached equal pay act cases with a lot of skepticism. Two higher level positions are almost guaranteed not to be completely similar, but to pay two vice presidents with similar scope of responsibilities at dramatically different rates is commonplace.
Maryland’s record is better than most; according to Governor O’Malley, “Thankfully, in Maryland we’ve been able to reduce the wage gap between men and women to the fourth-lowest in the nation – and we were recently named the 3rd best State in the US to be a woman.”
But bring into the mix the State of Wisconsin, which has produced some extremely anti-labor sentiments of late.
After trying to rid the state government of unions, Wisconsin decided to attack protection for women (and racial minorities, among other protected categories). Republic state senator Glenn Grothman spearheaded the repeal of the state’s equal pay act law. Senator Grothman rejects studies showing that women are systematically discriminated against. Instead, according to him, “you could argue that money is more important for men. I think a guy in their first job, maybe because they expect to be a breadwinner someday, may be a little more money-conscious.”
Okay; even if that “argument” had any logic behind it, it still does not explain why a man should be paid more for the same job, just because it’s “more important” for him. Should a single mother of four earn more than a young single man living with his parents, because it’s more important for her? Hard to imagine Wisconsin getting behind that one.
No, this seems to be about gender. Men deserve more money, according to these attitudes that, unfortunately (though sometimes more subtly stated) prevail.
Posted by marykeating on April 10, 2012 under Pending legislation, Unemployment compensation, Workplace privacy |
The Maryland legislative session just ended. As always, lots of bills were left on the cutting room floor. But a couple of interesting laws will become law if the Governor signs them.
The most newsworthy bill would prohibit employers from asking their employees or applicants to allow access to their social media sites, such as facebook. While cautionary tales abound about employers using the internet to find out what employees post, many people shield some of their information by erecting privacy walls. A state employee was required to give up his facebook password as a condition to returning to work after a leave of absence, triggering the legislation. According to the Baltimore Sun, Maryland is the first state to enact protective legislation, but others are considering similar protections.
A second law seeks to protect employees who serve on juries. Under SB 16 and HB 353, an employer may not schedule an employee for a shift beginning on or after 5 p.m. the day of jury service (or at least four hours of it), or before 3 a.m. the day after jury service.
Finally, a law eases some of the unemployment restrictions. An employee is entitled to unemployment benefits if she quits voluntarily with good cause. The employee has the burden of proof on the good cause, and there are not that many that qualify. A new recognized example of good cause was added to the law, permitting a finding of good cause if continued employment could endanger the safety of the employee, or the employee’s spouse, minor child or parent, if any of whom is a victim of domestic violence. Sometimes a domestic violence victim is safe only if he or she disappears from the reach of the perpetrator. A significant aspect of this law prohibits an employer’s rating record from being charged for the benefits, which should minimize employers’ objections when benefits are sought on this basis.
SB 291/HB 769
Posted by marykeating on March 8, 2012 under Family responsibility, Pending legislation |
A new bill has been introduced into the House and the Senate, called the Working Families Flexibility Act. The law would require all employers with at least 15 employees to work with employees who ask for flexible working conditions. For example, employees who need to limit hours, limit on-call hours, work closer to home, or request time off for school meetings are allowed to ask for such modifications without fear of retaliation
Then, just as with the Americans with Disabilities, Act, the employer and employee are supposed to discuss the matter and try to work out an accommodation. A denial requires a written decision. This requirement would make the employer consider the request sufficiently to frame a denial, which could lead to some compromise. An employee with more than one supervisor could go to the other supervisor if the first one denied permission. The bills are with committees now.
Maryland is also considering a family-friendly bill, SB329, this one to mandate short periods of unpaid leave for parents to go to school conferences. This is especially important to children needing individual education plans. Other than a disruption of the schedule for no more than four meetings per year, the bill would not inconvenience employers or add to their costs.
Posted by marykeating on January 17, 2012 under Collective rights, Pending legislation |
The National Labor Relations Board decided to postpone the effective date of its earlier requirement that employers post a comprehensive summary of employees’ rights to organize.
The posting requirement has created a firestorm among employers. It is designed to overcome the anti-union environment. Some employees believe that they have no right to talk among themselves about the conditions of the workplace, and that some workplaces are non-union, and they have no right to try to change it.
The first postponement required the poster to be on employer memo boards by January 31.
As of now, the poster must be used by April 30, 2012. The rule is pending a court challenge to the requirement, so further postponements or even a withdrawal of the requirement could occur.
Posted by marykeating on October 18, 2011 under Discrimination in employment, Pending legislation |
Every candidate talks about taxes, and how the tax code is full of loopholes. One area of tax unfairness involves taxation of employment discrimination damages. An employee who complains of employment discrimination often has to wait a few years before the case is heard. In the meantime, her damages have piled up. If the employee obtains a settlement or an award at trial, it often includes (1) damages to compensate for several years of unpaid or underpaid compensation, and (2) non-economic damages, such as emotional distress. Once the money is paid, the employee is taxed on the lump sum as though it were all earned as wages in a single year. The tax bite is hefty.
The Civil Rights Tax Relief Act, introduced last week, is designed to make the tax treatment fairer in two ways. One would treat emotional and physical injuries caused by the discrimination as not taxable. This is how personal injury cases treat monetary compensation for pain and suffering. There is no logical reason why money for an auto accident should be tax free while money for discrimination should be taxed.
The second prong would let the employee use income averaging to stretch out the payments that are intended to make up for lost compensation. The employee would pay tax on the backpay and front pay, but all at the tax rate that would apply if the income were apportioned by year. In other words, the employee is not immediately sent to the top tax bracket for the one year in which he received the payment meant to compensate for seven years of discrimination.
Interestingly, the bill enjoys the support of both employee advocates and business groups. Settlements and sometimes awards are made with the tax consequences in mind. If the tax consequences are eased, settlements will be easier to reach, and can be lower if the tax consequences are not so severe.
Posted by marykeating on July 26, 2011 under Discrimination in employment, Economic situation, Pending legislation |
A number of commentators, the EEOC among them, have noted with alarm that employers seem to be ruling out unemployed applicants when they are filling vacancies. Many people who lost their jobs in the recession (you have heard it’s over, right?) remain unemployed. Employers’ insisting on currently hired people just continues the plodding pace of the recovery, and is simply unfair.
A new bill introduced in Congress would outlaw the use of unemployed status when hiring. Under that bill, an employer would be forbidden from considering unemployment, or publicly stating that it would only consider currently employed people for job openings.
As with all failure to hire cases, proof will not be easy. When someone is discriminated against on the job, the events of discrimination may be frequent, or at least witnessed by someone whom the employee knows. When someone applies for a job, he is unlikely to have friends on th inside. Unless the interviewer makes his bias obvious, the applicant can seldom tie his failure to get the job to illegal discrimination.
If the link can be made, though, this law does ease the damage proof. The person who suffered the discrimination can claim $1,000 per day, or the actual damages from the failure to hire, along with compensatory and punitive damages.
Obviously Congress is busy now with other things (or so we hope). But there is probably not a strong constituency against this bill, except that some factions don’t like any new causes of action.
Posted by marykeating on July 23, 2011 under Pending legislation, workplace bullying |
An interesting article about bulling in the workplace reveals what you may already know: If you are being bullied, you are unlikely to be able to stop it, unless the bully leaves your workplace. The original research suggests that almost 2/3 of the people bullied will have to leave their jobs, whether for their own preservation, or involuntarily.
The Workplace Bullying Institute has prepared an excellent action plan, with the first goal to preserve the victim’s health and self-esteem.
If leaving the job is probably inevitable, then the employer should be made aware of the situation, and the employee should insist that it be fixed – all the while, of course, remembering that the employer is unlikely to get rid of the bully. The action plan reminds us that some employers may want to get rid of the bullies. The ones that don’t can’t be trusted to care about the welfare of their employees. And the employee who was targeted for bullying should make a public statement about the situation, leaving in disgust that it was allowed to continue.
The Workplace Bullying Institute is also responsible for the movement to introduce anti-bullying legislation at the state level. Maryland considered the law in March; I testified on its behalf. Although the law did not make it out of committee in Maryland’s General Assembly this year, we are hopeful it will be reintroduced and given a favorable report next session. See also my prior post.
Posted by marykeating on May 19, 2011 under Maryland wage law, Pending legislation, Unemployment compensation, retaliation |
Here is another update on new laws signed by the Governor.
HB 1228 tweaks the unemployment law to allow for the maximum chance of getting full federal funding of extended unemployment benefits. To meet federal standards, the state law needed to alter the definition of an economic downturn triggering the extnsion.
SB 551 prohibits an employer from retaliating against an employee making an oral or written complaint, or testifying in an action relating to Maryland’s wage laws. The law clarifies that taking adverse action in retaliation means not just firing the employee but demoting, or threatening to fire or demote the employee, or taking any other adverse action “that would dissuade a reasonable employee from making a complaint, bringing an action, or testifying in an action under” the law. A violation of the law is a misdemeanor.
HB 211 changes the name of the Maryland Commission on Human Relations to the Maryland Commission on Civil Rights, effective October 1.
Posted by marykeating on April 13, 2011 under Discrimination in employment, Economic situation, Employment benefit issues, Maryland wage law, Pending legislation |
The Maryland General Assembly closed on April 11 for the year. The Governor signed a few bills of interest to employers and employees yesterday; a few more are expected to be signed shortly.
“An agreement to work for less than the wage required under this subtitle is void.”
I believe this is already implied in the law. Yet, it is helpful to state it outright, since not everyone understands that minimum wage is required.
As of October 1, 2011, Maryland employers may not inquire into the credit of an employee or an applicant for employment. Exceptions include banks, credit unions, investment advisor positions, or any other job in which another law requires a credit report, such as someone needing a security clearance. Another large exception involves an employer pulling a credit report for jobs in which there is a realistic concern about the employee’s access to money. The exceptions are listed, and include management position, access to money or a corporate credit card, or has access to trade secrets.
The most unfortunate compromise is that the enforcement mechanism for violations is limited to filing a written complaint with the Commissioner of Labor and Industry. Still, the knowledge that in most cases an applicant’s credit history is off-limits should help the chances of people with poor credit. The persistent recession has hurt many people financially, and credit ratings have suffered. That does not mean that they would not be ethical, diligent employees.
- Change in disability benefits law. This is an enormous change in disability insurance practice. Effective for policies sold or renewed beginning on October 1, 2011, an insurance company may not reserve sole discretion to itself to interpret the terms of the policy, or to provie standards of review that are inconsistent with the laws of the state.
The law as originally proposed would have made all discretion illegal. That kind of change would have made an enormous difference in fights over coverage, but this is a step in favor of the person who has made a claim for disability coverage.
