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 February 3, 2012 under Federal wage and hour law, retaliation |
The Supreme Court issued a decision last year stating for the first time that a complaint about wages and hours need not be in writing to invoke the protection of the Fair Labor Standards Act. Before that, many courts had determined that only complaints made to the Department of Labor triggered anti-retaliation protection. The Supreme Court’s decision left open the issue whether complaints made only within a company qualified for protection.
The Fourth Circuit returned to this issue last week, and engaged in quite a bit of statutory analysis before concluding that an employee who complained about her supervisor could sue for retaliatory termination. In Minor v. Bostwick Laboratories, an employee asked for a meeting with the company’s head to inform him that her supervisor regularly altered employees’ timesheets to erase overtime hours. A few days later she was terminated, the employer citing her inability to get along with her supervisors.
The Fourth Circuit now allows the suit to go forward. The difficulty with the conclusion comes with the language of the depression-era law, which provides for protection for an employee who “files” a complaint. The Fourth Circuit’s decision makes sense given the purpose of the law. Employee advocates point out that to deprive employees of protection when they complaint internally gives an incentive to employers to fire complainers before they go to the outside agency. On the other hand, to require an employee to complaint externally (as with many whistle-blower type claims) encourages people to make complaints to government agencies whenever they see a potential violation. Employers have a major incentive to avoid problems, if a discussion and investigation could cure the issues before they become a federal case.
Posted by marykeating on December 28, 2011 under Maryland wage law, Wage and hour issues |
The Fourth Circuit Court of Appeals decided against an employee seeking to recover unvested stock options after her termination. The employee had sued under the Maryland Wage Payment and Collection Act. She contended that a portion of her deferred compensation should not have been withheld by her employer. Under an optional plan, the employee had agreed to defer a part of her compensation, which the employer matched. The matching portion, however, did not immediately vest. Unless the employee’s termination was caused by her retirement, death or disability, they did not vest for seven years. Therefore, upon her termination, the employee was paid only her portion of the compensation for the most recent years.
Although the court decided that New Jersey law applied, according to the parties’ contract, it also noted that Maryland law would not have given the employee her unvested stock options, since that is all she bargained for. In other words, this deferred compensation plan was designed to leave a lot of the compensation on the table, unless someone stayed with the employer for many years.
This decision does not bind a Maryland court from making a contrary decision, but to date these unvested benefit issues have not gone well for employees.
Posted by marykeating on December 6, 2011 under Federal wage and hour law, Interesting cases |
The Fair Labor Standards Act has governed the provision of minimum wages and overtime pay since the 1930s. A problematic area remains the “exemptions” to overtime entitlement. One exemption provides that “outside sales” staff need not be paid overtime pay. An employee working in an office on the phones is not exempt. But someone traveling around to make sales or obtaining orders or contracts for services or use of facilities is not entitled to overtime. Perhaps the original idea was that the outside sales people were motivated by their commissions, not the promise of an hourly wage.
Modern life has led to many hybrid type jobs. One is the pharmaceutical sales representatives employed by drug companies to introduce physicians to their products. Sales representatives have urged courts to allow them overtime, on the basis that their work is primarily promotional. The Supreme Court has agreed to address the question: “Whether the Fair Labor Standards Act’s outside sales exemption applies to pharmaceutical sales representatives.” The case is called Christopher v. SmithKline Beecham.
The case comes up in the context of a disagreement between Courts of Appeals. Some agree with the Department of Labor interpretation that pharmaceutical sales representatives are entitled to overtime if they work more than 40 hours in a week. They are not selling to physicians, they are attempting to influence their patterns of prescription. The pharmaceutical industry is also interested in a resolution to this issue.
Posted by marykeating on August 15, 2011 under Federal wage and hour law, retaliation |
The Fourth Circuit just ruled against a claim by an applicant for a job who was rejected because she previously sued a former employer. The Court held that the Fair Labor Standards Act protects current and former employees only, and therefore she had no viable claim of retaliation.
In this case, the plaintiff was offered a job, contingent on passing a drug test and transferring her security clearance. In the security clearance form, she had to list pending cases, which is how the new employer found out about the lawsuit. It withdrew the offer. Because she never started work with the new company, its retaliation was not illegal under the law, according to the decision.
The dissent argued that the definition of the word “employee” was not so free from doubt, and could be stretched to cover the plaintiff, particularly in light of the law’s intent to protect workers. In fact, the law imposes criminal penalties for acts of retaliation. In addition, there is precedent that unpaid trainees qualified as employees.
Employees who experience discrimination and retaliation have many issues to consider before suing their employers. Unfortunately, one of them is whether a new employer will hold that lawsuit against them.
Posted by marykeating on August 13, 2011 under Federal wage and hour law, retaliation |
The Maryland federal district court just ruled on a claim by workers who were fired after making claims that they were not being paid appropriately. (Randolph v. ADT Security Services, Inc.) The employees filed claims with the State of Maryland, which requested backup documentation to support the charges that their employer, ADT Security Services, was not calculating their commissions correctly. The documentation included detailed information about the company’s customers and their security system installations.
Upon learning of the claims filed with the State, the company suspended and then fired the workers, stating that they had violated the terms of the company’s confidentiality policy by disseminating the information outside of the company. They sued for retaliation, and wrongful termination.
The District Court made an important distinction between employees who participate in their own claims of illegal activity, and those who oppose illegal activity, by helping others in their claims. The first group has a higher level of protection from interference. The opinion states: “While protected activity under the opposition clause must be ‘reasonable,’ the Fourth Circuit has specifically refused to apply any reasonableness requirement in the participation clause context.”
Often this distinction comes up in the context of complaints that might be only marginally related to an allegation of race discrimination, for example. There is a fear that any fired employee could recharacterize statements or conduct as protected activity. So if an employee raises an issue about conduct that does not involve him personally, the complaint must be reasonably related to a violation of the law, and the conduct is viewed under a reasonableness standard. Therefore, releasing confidential documents may be unreasonable under the circumstances when the employee releasing the documents is not making a personal complaint.
When the employee is making a complaint about her own situation, however, “reasonableness has no place” in the analysis.
The Court pointed out that permitting employees to be retaliated against for using “confidential” documentation would harm employees with the best cases. Those employees with convincing documentation, if not allowed to use it, would be hamstrung solely by a policy that prevents them from taking documents that are used to establish their pay. The Court pointed out that this could not only lead to abusive policies, but also intrusive investigations by agencies that enforce the discrimination and wage payment laws.
Posted by marykeating on July 17, 2011 under Collective rights, Sex-based discrimination, Wage and hour issues |
Many workplaces prohibit or discourage their employees from discussing salaries. A new study by the Institute for Women’s Policy Research, in fact, found that nearly half of the survey respondents were not supposed to talk to coworkers about how much they are paid.
While learning that a coworker makes more can lead to resentment, transparency in pay structure can also help root out and remedy discrimination. The study’s authors point out, for example, that gender-based pay discrimination stands at about 11% in government service, where salaries are often public records, while the 23% gender gap in the private sector continues despite state and federal equal pay laws. The authors quote another study’s conclusion: “It is estimated that discrimination (rather than differences in occupations, industry, experience or education) is responsible for about 40 percent of the wage gap.” (Blau, Francine D., and Lawrence M. Kahn. 2007. ‘The Gender Pay Gap: Have Women Gone as Far as They Can?’ Academy of Management Perspectives, 21,1: 7-23.)
The now famous case of Lilly Ledbetter demonstrates the danger of secrecy. Ms. Ledbetter learned that she had been underpaid for years at General Electric; the Supreme Court said she sued too late, since the first such pay decision, in which she was paid less than her male counterparts, was well out of the statute of limitations period. Congress fixed the problem in early 2009, but no one can claim discrimination without having some facts.
It stands to reason that similar wage gaps affecting minority workers are also perpetuated by such secrecy laws. The good news is that this kind of workplace rule is illegal under the National Labor Relations Act. (My discussion here explains this more). Employees are entitled to discuss work conditions, including, or course, pay, without retaliation. With the law on the side of employees, they just need to get past their childhood admonitions that talking about money is rude.
Posted by marykeating on July 4, 2011 under Federal wage and hour law |
Franklin Delano Roosevelt announced his four freedoms almost two centuries after the Declaration of Independence. As with the brave rebels in 1776, the focus on independence came at a critical time in our history. In 1941, he set out an expression of basic human rights applicable to the whole human race:
- Freedom of speech and expression
- Freedom of worship
- Freedom from want
- Freedom from fear
The freedoms are all important, but in the FDR era, many minds remained focused on the freedom from want. Unemployment peaked at almost 25% during the Great Depression. (It fell to under 2% during World War II.) In 1938, FDR proposed and signed into law the Fair Labor Standards Act, imposing minimum wages and overtime pay requirements.
That law has become ingrained in our economy, but it contains some exemptions that create hardships. Late last month the Senate and House introduced bills to limit one of the exemptions. That exemption has relieved employers of the requirement to pay minimum wage to people providing home care or companionship services to disabled, sick or elderly people.
Called the Direct Care Job Quality Improvement Act of 2011, the law would allow the exemption only for occasional, casual work. Your teenage babysitter can still be paid less than minimum wage (if indeed you can find such a person), but not someone who works for a home health agency, someone who does this work for a living, or who works for someone who needs such care more than five hours a week, or more than twelve weeks in a row. (These restrictions are designed to avoid a gaping loophole in which an agency sends different people on different days.)
Congress’s findings of the needs for the new law include the statement of the expanding need for these workers (now serving 10,000,000 people), and the prediction of a serious shortage of workers able and willing, without even minimum wage protection, to take on the work. When one is not in dire want, the other freedoms are glorious parts of our nation’s heritage and hope for the future. But if our home workers can’t live, and we can’t get a worker to help us with daily living requirements, it is hard to focus on the abstractions like the freedom of speech or religion.
Happy Fourth of July.
Posted by marykeating on June 3, 2011 under Wage and hour issues |
High school and college students often search out internships as a way to break into a field. Some schools require internships, as a way of preparing their students better for “the real world.” These days, lots of people are offering their services as “interns,” whether they are associated with schools or not, in the hopes of turning unpaid labor into a real job.
Taking advantage of these offers is tempting, but a private sector employer has to offer an educational opportunity to the intern, not just take advantage of free labor. A person’s offer to work for free does not insulate the employer from the obligation to pay at least minimum wage, unless certain criteria make the job a true internship.
The Department of Labor’s fact sheet offers guidance:
- The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
- The internship experience is for the benefit of the intern;
- The intern does not displace regular employees, but works under close supervision of existing staff;
- The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
- The intern is not necessarily entitled to a job at the conclusion of the internship; and
- The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
The Department of Labor is concerned about employers bringing on an “intern” who is in reality a probationary employee, or someone who allows the employer to lay off a paid worker to do the same work. The intern may not complain, since he or she probably volunteered for the resume value of the internship, but the Department of Labor does have some enforcement teeth, and has been hiring investigators.
Employers can use interns to increase the enthusiasm level of the workplace, allow employees to enjoy the process of instructing young people in the world of work and the specific workplace, and engender good will with the interns themselves and the schools they come from. Although the interns can accomplish some necessary tasks, though, the truly exempt intern will probably cost as much as he or she contributes in the short run.
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.
