Posted by marykeating on February 17, 2011 under Federal wage and hour law, Pending legislation | 
Did you and your sweetie go out to dinner for Valentine’s Day? Your server may be interested in a new law proposed in the house to increase the minimum wage for tipped employees. As of now, the minimum wage for someone like a waiter is $2.13 per hour. The idea is that with tips, the server’s true compensation is generally higher than the minimum wage applicable to other workers. That’s a nice theory, but it may not always work for people who have to participate in tip pools, or whose employers keep their tips (which they are allowed to do, so long as the employee makes at least the generally applicable minimum wage).
Maryland’s Representative Donna Edwards has introduced H.R. 631, the Working for Adequate Gains for Employment in Services Act, to increase the minimum wage for employees living off tips. The acronym is “WAGES.”
The law would increase the minimum wage to $3.75 beginning 90 days after the law is enacted, then after a year increase it to $5.00 per hour, then mandate that in two years it rises to and remains at 70% of the prevailing minimum wage rate.
The bill has been referred to the Committee on Education and the Workforce.
Posted by marykeating on February 7, 2011 under Discrimination in employment, Economic situation, Pending legislation |
A new law has been proposed in Maryland to restrict the use of a person’s credit history in making employment decisions. Called the Job Applicant Fairness Act, the bill would outlaw using a credit report to deny a job to an applicant, or to discharge an employee. This issue has gotten a lot of attention lately. Since many people have lost their jobs in the last couple of years, their credit ratings may have suffered. A foreclosure or late credit card payments can be directly tied to a layoff, and do not measure a person’s aptitude for a job. In addition, it is widely believed that making employment decisions based on a credit score affects minority candidates more harshly.
The counter argument is that a person with debt pressures is more likely to embezzle. It seems that all people could use more money; a past history of theft is a better indicator of thieving tendencies than someone who has tried and failed to stay current with obligations.
Still, in case there is any validity to the fear that people with poor credit are a danger to client’s money, financial institutions are given some leeway. The bill introduced into the General Assembly gives exceptions in several circumstances, such as when the person is applying for work at a bank whose deposits are insured by a federal agency, someone registered as an investment advisor with the SEC, or if some law requires the employer to consider the applicant’s credit history. In addition, if the person has been given an offer of employment, and the credit report is needed for a reasons other than denying employment, discharging the person, or determining pay or other terms of employment, the employer may request it. Presumably such reasons are related to jobs in which the person has the largest opportunity to embezzle.
Posted by marykeating on December 23, 2010 under Family responsibility, Pending legislation |
The President has instructed the Office of Personnel Management to develop policies to protect mothers who are breastfeeding their infants, and need time and space to pump during the day. Although the new health care law protects many hourly workers, see discussion here, the President wants all federal workers to get the protection.
While finding space may not always be easy for an employer, hence the limitation to larger employers, many employers may be pleased to find that productivity is not necessarily affected. During my own bouts of working and pumping, I found that I could at least read during these breaks. Many employees may have similar ways to use the time in some productive way with the use of audio podcasts, for example.
The policies are supposed to be announced as soon as they are ready. Since some federal agencies already have them in place, that theoretically should not take long.
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 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.
Posted by marykeating on October 7, 2010 under Family responsibility, Pending legislation, Sex-based discrimination |
I have been thinking about the problems of people facing job difficulties because of their family responsibilities. On Sunday, the ACLU hosted a forum to discuss the issue; I talked about the patchwork of laws that cover some areas and leave some unprotected. The forum featured Kevin Knussman, the state trooper who fought a ten-year lawsuit after the state denied him leave to help care for his newborn daughter and ill wife. His supervisor told him that unless his wife was dead or in a coma, he was not entitled to parental leave, since he could not have or breastfeed a baby.
Many workers feel the effects of discrimination against them on the basis of their family obligations. Schedules are changed, which wrecks a carefully mapped out system. An employer assumes that a woman with small children will not want to travel, so she can’t be given the promotion. A worker takes off time to help with his aged father’s illness, and the boss questions his commitment to his job.
In some cases, the attitudes and actions violate existing laws. For example, if a woman is not considered for a plum assignment because she has young children, and is assumed to place her family ahead of her job, while men with young children do not face the same barrier, that is gender discrimination. If an employee takes occasional time off to care for an ailing mother, discrimination may be outlawed by either the Family and Medical Leave Act, or perhaps by the Americans with Disabilities Act prohibition forbidding discrimination on the basis of the employee’s association with a disabled person. But there are holes in these overlapping laws. And often it is difficult to separate the effect of discriminatory attitudes from the employer’s asserted need to impose certain schedules and get certain jobs done.
A new law has been introduced in Congress that would require the employees and employer to discuss the worker’s need for flexibility. Entitled the “Working Families Flexibility Act,” the law is designed to:
permit employees to request, and to ensure employers consider requests for, flexible work terms and conditions, and for other purposes.
Under this bill, the employer is required to discuss the employee’s need for certain hours and places of work. In fact, if the employer rejects the application for flexibility, it must make a written decision outlining the reasons. The employee may ask for reconsideration, and the parties must have a meeting, at which the employee may have representation. The employer is forbidden from retaliating against the employee for making the request, or interfering with the right to make the request.
The thrust of this law would be to force employers to give actual consideration, not an automatic “no” to requests to work from home, start later, or work four ten-hour days. It does not require any particular outcome, however. The bill is in committees in both the House and the Senate.
Maryland’s general assembly rejected a law last year which would have added another prohibited basis of discrimination. Under the anti-discrimination laws, an employer would be liable for taking actions such as firing, refusing to hire, refusing to promote, or paying less to an employee on the basis of his or her family responsibilities. It did not pass, but new laws are more likely to pass in non-election years, which we have coming up this winter.
Posted by marykeating on April 29, 2010 under Federal wage and hour law, Pending legislation |
I’ve discussed misclassification of employees before. The issue comes up when an employer decides to treat a worker as an independent contractor when the person actually qualifies as an employee. The savings to the employer include worker’s compensation premiums, unemployment insurance premiums, the employer share of the social security and medicare taxes, and, often, the cost of fringe benefits. In addition, an employee has protections under various non-discrimination laws which usually do not apply to independent contractors.
Congress now has before it a new version of The Employee Misclassification Prevention Act. It was introduced last week, and is expected to get a favorable hearing.
The law would add enforcement teeth to the Fair Labor Standards Act. One provision adds a presumption that someone receiving money for the performance of work is an employee, unless the employer has maintained records related to the classification and the hours worked and wages paid. In addition, the misclassified employee will be entitled to doubled liquidated damages for that violation. In other words, the amount recoverable by the misclassified employee could be triple the unpaid or underpaid wages, as is the case in state law.
Maryland is targeting specific industries, such as the landscaping industry, believed to have rampant violations. The new federal bill requires the Department of Labor to engage in targeted audites of industries the department finds to have a frequent incidence of misclassification.
Posted by marykeating on April 11, 2010 under Maryland wage law, Pending legislation |
The Maryland legislative session is nearly over for the year. One favorable bill clarifies the state’s wage payment and collection act to include overtime. Both houses have passed the bill, and it’s expected to be signed by Governor O’Malley.
The wage law helps employees enforce their rights to payment for their work. When there is no good faith dispute about the worker’s entitlement to the wages, a judge may triple the amount found to be owed, and award the employee reasonable attorney’s fees for taking the case to court. The policy behind the law is clear. When an employer withholds wages (and many such cases come up when the employer refuses to pay the last paycheck, apparently figuring that the employee will go away quietly), the employee should have an effective means of obtaining the compensation. Permitting additional damages and attorney’s fees are good incentives. In addition, the law penalizes the employer for holding back pay for no reason other than wage theft. On the other hand, if there is an actual dispute over the pay owed, or the amount of a commission, the employee cannot obtain the enhanced damages, but still has access to court.
Now the law will specifically include overtime pay as an element of the compensation that the employee may sue for. Not all courts had accepted the idea that compensation of any kind included overtime pay, so employees would sue under the Maryland law for unpaid straight-time wages or bonuses, and under the federal Fair Labor Standards Act for their overtime pay. This made the cases needlessly complicated. This may not change the reality that federal judges seem more likely to apply the correct burden of proof (it’s on the employer to show exemption from overtime), but it is a good clarifying law.
Posted by marykeating on March 24, 2010 under Employment benefit issues, Pending legislation |
Congress keeps tweaking COBRA subsidies to deal with the sustained unemployment rate. In December the COBRA subsidy was extended until the end of February. People eligible for the subsidy will have to pay only 35% of the monthly premium, while the employer pays the rest, and takes the cost of the 65% premium as a credit against withholding taxes. Congress added a month, and has not been trying to extend it further. Last week the House of Representatives passed a bill to extend COBRA subsidies until the end of April. Meanwhile the Senate passed a bill to extend the subsidy period through to the end of 2010. Both bills must be passed by the other house, though it looks as though there will be no problem making the April extension into law in time. American Workers, State and Business Relief Act of 2010.
Posted by marykeating on March 13, 2010 under Age discrimination, Pending legislation |
In a down job market, discrimination claims rise. One view is that people who are laid off anyway have nothing to lose by filing a claim. Another, and one I’m more partial to, sees the downsizing workplace as indulging in stereotypes of what the efficient future worker looks like. And age discrimination is the frequent result of a stereotyped, biased, look at “what this place needs to stay competitive in the 21st century.” Someone born way back in the mid-20th century, when they didn’t even have personal computers, can be muscled aside as necessarily lacking in technological skills. And someone without a college degree cannot possibly be as good as one with a degree. Application of these criteria on a group, rather than individual, basis in choosing who is laid off can lead to a disproportionate impact against older workers.
The Supreme Court allows an employer to win an age discrimination case by bringing up a “reasonable factor other than age.” Smith v. City of Jackson, 544 U.S. 228 (2005). In the scenario above, an employee who truly lacks necessary technological skills for his job, regardless of his age, is a reasonable candidate for the reduction in force. But these factors have to be applied in an objective manner so as to avoid stereotyping.
The Equal Employment Opportunity Commission highlights this dichotomy in its proposed rules on reasonable factor other than age. The EEOC’s rules would require that the criteria used to determine the layoffs are objectively reasonable, and that they strive to ensure that they are applied in a way that avoids, as much as possible, subconscious discrimination. For example, the EEOC warns that “criteria known to be susceptible to age-based stereotyping, such as flexibility, willingness to learn, or technological skills” should be backed up by training in judging each employee’s performance level, and how to avoid age-based discrimination in doing so. 75 Fed. Reg. at 7217. When managers are given too much discretion, and little training on the application of these criteria, the reasonable factor defense weakens.
Importantly, the EEOC addresses the common issue of a company firing its most expensive workers. This looks objectively reasonable, but the EEOC warns that when it has a disproportionate impact on older workers, the company should also consider the revenue that the highly paid people bring in when deciding whom to cut.
These rules are open to comment until April 19.
