Category Archives: employment law

Study: Pay Scales Tip Toward Gay Men

happy man with moneyOver the past few years, the world has made some great strides in the acceptance of LGBTQ individuals. Same-sex marriage was legalized in the United States in 2015, same-sex adoption was legalized in all 50 states in 2016 and the transgender military ban was lifted in 2016.

Meanwhile, more than two dozen countries now recognize same-sex marriage, according to the Pew Research Center.

And now new research has revealed that gay men no longer experience a negative pay discrepancy when compared with demographically similar straight men. In fact, gay men appear to have reached a 10-percent earning premium – meaning they earn more than their straight-male counterparts.

The lead researcher for this study, Christopher (Kitt) Carpenter, professor of economics at Vanderbilt University in Nashville, Tenn., examined available data on self-identified gay men, which is harder than it sounds.

Not only is the overall self-identified LGBTQ population small, approximately 2 percent to 3 percent, but surveys haven’t asked about individual’s sexual orientation until very recently, said Carpenter.

For this study, he examined data from the nationally representative National Health Interview Survey, which began including sexual orientation in its questionnaires in 2013.

“For the past 15 years, I’ve been crunching numbers from every single data set I can find that credibly identifies LGBTQ individuals and their economic details. And for more than 20 years, studies have all concluded that gay men, when compared with straight men who come from similar economic backgrounds, earned approximately 5 to 10 percent less. This is the first study that has shown the opposite may now be true.”

The 10-percent premium surprised Carpenter and his co-author so much that they ran extra tests to determine if this earning premium  was a coincidence.

All previous literature points to gay men earning less. But test after test revealed the same thing: Gay men are earning more than demographically similar straight men.

“This finding has raised more questions than answers,” Carpenter said. “What helped the pay scales tip in favor of gay men – is it new legislation, or perhaps greater acceptance of LGBTQ folks? If this is the case, the implications of this study are to look closely at what is it about the nature of the workplace that has changed. If it’s anti-harassment and discrimination policies that’s great and should certainly be evaluated closer.”

Scholars have long thought that sexual-orientation minorities spend a lot of time and energy closeting themselves, he added. “They spend time worrying about whether their colleagues are wondering about them, or, if outed, will they be fired? This means that LGBTQ folks can’t perform to their full potential. Anti-discrimination and harassment policies are catalysts to change this.  Creating safe spaces for LGBTQ folks to just be themselves will only foster a more productive environment in and out of work.”

Carpenter hopes that these results will compel HR leaders to review and refine their own compensation policies and procedures because there’s still an enormous amount of evidence that points to the nature of discrimination in the workplace.

For instance, a recent study conducted in India found that discrimination against LGBTQ individuals may cost the country an upwards of $32 billion a year in lost economic output. That type of loss certainly isn’t in the best interest of anyone.

Holiday Parties: Proceed with Caution

The almost daily revelations of workplace sexual harassment should be enough to drive home the idea that if your company is tossing a holiday party this year, be extra careful. And reconsider offering alcohol to party-goers, according to experts.

One related recent survey, from Global outplacement consultancy Challenger, Gray & Christmas, Inc., found that HR leaders nationwide may be a bit more cautious regarding the annual company year-end bash.

Reaching out to 150 HR representatives, the survey found 80 percent of employers plan to host holiday parties this year, approximately the same as last year. On the flip side, 11 percent of employers will not hold a holiday party, up from 4 percent in 2016. It’s also the highest percentage since post-recession 2009, when 25 percent did not have parties.

On the booze front, fewer of these parties will serve alcohol (47 percent, compared to 62 percent last year). Using caterers and/or allowing employees to bring guests are also down from previous years.

“Employers are currently very wary of creating an environment where inappropriate contact between employees could occur,” Challenger said. “One way to create a safer environment is to limit the guest list, hold the party during the workday, and avoid serving alcohol.”

Beth Zoller, legal editor at XpertHR, an online HR compliance resource, said in a company release that thanking employees for a job well done via holiday parties is a good thing, but certainly there are risks, ranging from claims of religious discrimination and sexual harassment to drunk driving.

Zoller said employers should be especially careful if serving alcohol because it can result in some very bad outcomes, including car accidents, injuries, discrimination, harassment and inappropriate and offensive conduct. Management should make sure that all employees are completely sober before driving home. In fact, she said, a luncheon may be safer as employees may be likely to drink less during daytime hours.

Employers should also avoid hanging mistletoe as a decoration, as this not only could lead to religious discrimination claims, but also to potential claims for sexual harassment.

“If an employer is not extra careful, things can turn sour in a hurry,” Zoller said.

Another Coffin Nail for EEOC Merger?

After taking office in January, one of President Trump’s first orders of business was to act on a recommendation from the conservative Heritage Foundation, which recommended eliminating redundancies in the Labor Department’s Office of Federal Contract Compliance Programs and the Equal Employment Opportunity Commission.

Indeed, in the president’s budget, the OFCCP saw its budget reduced from $105 million to approximately $88 million while EEOC funding in Trump’s budget proposal essentially stayed the same at roughly $364 million, according to Federal News Radio.

Labor Secretary Alexander Acosta even testified at a House Appropriations subcommittee hearing in support of the Trump proposal, where he called the merger a “commonsense change” that “combines two civil rights agencies that already work together closely.”

But opposition to the plan has been widespread ever since it was announced, according to that report. It notes that 73 civil rights groups condemned the measure, and even the U.S. Chamber of Commerce has lined up against it:

Camille Olson, chair of the U.S. Chamber of Commerce’s equal employment opportunity policy subcommittee, told lawmakers recently that numerous companies have contacted the Chamber with concerns about merging the agencies. “Both the EEOC and the OFCCP need reforms,” she said, but not in the form of a merger.

Signs of resistance to the merger idea are also becoming more evident in Congress, where last week the U.S. House of Representatives approved an amendment that would prohibit funds from being used to merge the EEOC and the Labor Department’s contractor compliance office, according to a Bloomberg BNA report.

The proposal to merge the Equal Employment Opportunity Commission and the DOL’s Office of Federal Contract Compliance Programs is “a total mess,” said Rep. Donny Scott (D-Va.), the ranking member of the House Committee on Education and the Workforce who offered the amendment.

“Both have important missions, but combining them would be total confusion,” Scott told Bloomberg BNA. “The Chamber of Commerce opposed the merger, civil rights groups opposed the merger, and the Senate already had language in their bill taking away the merger, so I think it was appropriate in the House bill to also make a statement.”

The Bloomberg report notes that “the House amendment follows the Senate Appropriations Committee’s rejection last week of the proposed merger, which can’t occur without lawmaker support. A number of legislative and regulatory actions would be required to consolidate the agencies and to reconcile their different enforcement structures and approaches.”

 

A Tricky Legal Question for HR

The Aug. 11 march by white-supremacists in Charlottesville, Virginia, ended after a car plowed into a crowd of counter-demonstrators the next day, killing a 32-year-old woman.

Authorities have charged an Ohio man in the case, starting what could be years of legal repercussions.

For HR executives, the incident raises a legal question that is at least as complex: How can employers protect themselves when a worker participates in extremist political conduct that puts the business at risk?

That risk is painfully clear to the owners of two restaurants on opposite sides of the country. Both employed men who were publicly identified as participants in the Charlottesville rally. Both companies found themselves in the glare of unfavorable publicity as a result.

Boston-based Uno Pizzeria and Grill quickly fired a cook in a Burlington, Vermont outlet after he was identified in a news video and in social-media posts as a march participant and ardent white supremacist.

Owners of Top Dog, a small chain of hot-dog restaurants based in Berkeley, California, did not fire an employee who also was linked to the Charlottesville rally in social-media accounts. Instead, they told local news outlets, he chose to resign.

What about the First Amendment? Does it protect employees  from punishment by employers for exercising their constitutional right to free speech?

Not if they are employed in the private sector, lawyers say. The First Amendment only limits government control of a person’s speech or writing, writes employment attorney Robin Shea of Constangy, Brooks, Smith & Prophete LLP in Winston-Salem, North Carolina. “The First Amendment doesn’t prohibit limits on speech that are imposed by private individuals, or private-sector employers.”

State or local laws may apply in some cases, “but those jurisdictions are the exception, not the rule,” she writes.

Public employers take special care, Shea notes. And employers with a collective bargaining agreement should check to see if it limits their options, Shea writes.

In any case,“Employers must also be careful not to run afoul of the National Labor Relations Act by punishing employees who may be commenting about the terms and conditions of their employment,” writes Kimberly A. Ross, a partner with Ford Harrison in Chicago.

Ross recommends that employers tread carefully no matter what. “Because of all of the complex issues to be considered, employers are encouraged to consult with their employment counsel before making any significant decisions based on their employees’ off-duty conduct,” she writes.

Shea also urges employers to be cautious: “Never take action against any employee based on ‘politics’ unless you have consulted with counsel first,” she writes.

A Bill to Limit Microchipping

Just when you thought it was safe to go to work…

Pennsylvania State Rep. Tina Davis (D., Bucks) recently introduced a bill that would prohibit private employers and government entities in Pennsylvania from requiring employees to have microchips implanted in their bodies as a condition of their employment, according to this piece on Philly.com.

Davis floated her bill in response to news stories of a Wisconsin vending machine company asking its employees to voluntarily have an encrypted microchip inserted in their hands to log in to computers, use copiers, open office doors, and operate snack machines while at work. (We wrote about the topic here and here.)

According to Philly.com, Davis’ proposed Employee Subdermal-Microchip Protection Act would allow surgically implanted microchips only if workers made their own decision. It would require the state Department of Labor and Industry to investigate workers’ claims that they were victims of retaliation for refusing to get a chip. It also would impose fines for companies that violate the would-be law.

“My legislation will require that any employer that offers a microchip, or any kind of subdermal device to be implanted for use during the employee’s work, must make it a voluntary decision,” Davis wrote in a July 28 memo to the House of Representatives.

“An employee’s body is their own and they should have the final say as to what will be added to it. My bill will protect employees from being punished or retaliated against for choosing not to have the subdermal microchip or other technological device implanted. As technology advances, we need to make sure we provide employee protections that keep up with these advances and do not allow employers to have control over their employees’ bodies.”

A Paid Sick Days Law Dies (Again)

In case you missed it last week, the Pennsylvania Commonwealth Court upheld a 2015 trial court ruling that the City of Pittsburgh did not have the authority under state law to enact the Paid Sick Days Ordinance.

After the City of Pittsburgh passed the Paid Sick Days Ordinance, which would require employers to provide employees with a minimum of one hour of paid sick leave for every 35 hours an employee works in the city limits, a group that included the Pennsylvania Restaurant & Lodging Association and several local restaurants and businesses challenged the city’s authority to enact such legislation, according to a press release from Littler.

The challenge was based on the fact that under the laws of the Commonwealth of Pennsylvania, Pittsburgh is a home rule charter municipality.

Under state law, “a municipality which adopts a home rule charter shall not determine duties, responsibilities or requirements placed upon businesses, occupations and employers      . . .  except as expressly provided by the statutes which are applicable in every part of this Commonwealth or which are applicable to all municipalities or to a class or classes of municipalities.”

Citing an earlier Pennsylvania Supreme Court ruling and its own precedent, the Commonwealth Court found that the Paid Sick Days Ordinance imposed “numerous affirmative duties” on employers and therefore was invalid and unenforceable.

The City of Pittsburgh had argued that state law permits cities to pass ordinances relating to disease prevention and control, but the Commonwealth Court noted that the provision of state law that the city relied upon applies only to municipalities that have boards of health or a department of health.  Pittsburgh has neither.

It is unclear whether the City will appeal.  While Pittsburgh’s ordinance has been invalidated, employers should remember that Philadelphia’s paid sick leave ordinance remains in effect, Littler notes.

FTC Background-Check Primer

In case you missed it, the Federal Trade Commission issued a blog article on Apr. 28 titled “Background checks on prospective employees: Keep required disclosures simple.”

According to the FTC’s blog post:

Background screening reports are “consumer reports” under the Fair Credit Reporting Act when they serve as a factor in determining a person’s eligibility for employment, housing, credit, insurance or other purposes and they include information “bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living.”

If your company uses background screening reports to make hiring decisions, here are some steps the FCRA requires you to take:

  1. Before you get a background screening report about a prospective employee, disclose to the person that you intend to get the report and then get their written authorization allowing you to do that.

  2. If the background screening report reveals something that may cause you to decide not to hire the person, you must notify them of the results of the report and provide them with a copy. Next, you have to give them sufficient time to review the report so they can challenge any elements that might be incorrect.

  3. If you ultimately decide not to hire someone based in whole or in part on the contents of a background screening report, you must provide a notice to that person that states they weren’t hired due at least in part to the result of the background screening report.

The FTC blog post says one issue employers struggle with making the required initial disclosure before they obtain the background screening report and get the prospective employee’s authorization.

But it’s easier than you might imagine:

Under the FCRA, you must provide the prospective employee with a clear and conspicuous written disclosure that you plan to get a background screening report about them and you must get the person’s written authorization that gives you their permission to compile the report. It’s OK to put the required disclosure and your request for their authorization in one document. Just be sure to use clear wording that the prospective employee will understand.

Some companies trip themselves up by using complicated legal jargon or adding extra acknowledgements or waivers, the FTC notes. Here are some examples of the kind of things that shouldn’t be in this simple document:

  • Don’t include language that claims to release you from liability for conducting, obtaining, or using the background screening report.
  • Don’t include a certification by the prospective employee that all information in his or her job application is accurate.
  • Delete any wording that purports to require the prospective employee to acknowledge that your hiring decisions are based on legitimate non-discriminatory reasons.
  • Get rid of overly broad authorizations that permit the release of information that the FCRA doesn’t allow to be included in a background screening report – for example, bankruptcies that are more than 10 years old.

That extra stuff not only makes it harder for the prospective employee to understand the main purpose of the document, but it also may violate the FCRA. Adding other acknowledgements or releases of liability is beyond the scope of what the FCRA permits in this document. If you have additional waivers, authorizations, or disclosures you want to give to prospective employees, do it in a separate document. Don’t include them in the FCRA disclosure and authorization document.

The FTC says the matter is as simple as this: “Complying with the FCRA’s disclosure requirement for the use of background screening reports is easy. You can do it in a few sentences. Just include a simple, easy-to-understand notification that you will obtain a background screening report, perhaps with a simple explanation of what information will be included in the report. The request for the prospective employee’s authorization should be in plain language, too.”

A National Ban on Salary History?

U.S. Congresswoman Eleanor Holmes Norton (D-DC) today introduced the Pay Equity for All Act of 2017 with original cosponsors Representatives Rosa DeLauro (D-CT), Jerrold Nadler (D-NY), and Jackie Speier (D-CA) to prohibit employers from asking job applicants for their salary history before making a job or salary offer, according to a press release.

The bill — which was first introduced last Sept. — seeks to reduce the wage gap that women and people of color often encounter.  The bill is particularly vital after the U.S. Court of Appeals for the 9th Circuit overturned a lower court ruling that determined that pay disparity based exclusively on past salaries was discriminatory under the Equal Pay Act.

As you may recall from our coverage on the topic, Massachusetts, New York City, the District of Columbia and Philadelphia have passed similar legislation banning employers from seeking past salary history.  Because many employers set wages based on an applicant’s previous salary, workers from historically disadvantaged groups often start out behind their white male counterparts in salary negotiations and never catch up.

“After last week’s disappointing 9th Circuit ruling, it is critical that Congress take legislative action to ban the practice of asking for an employee’s salary history, which disadvantages women and minorities, who disproportionately carry lower salaries through their entire careers simply because of wages at previous jobs that were set unfairly,” said Congresswoman Norton.  “Our bill will help reduce the wage gap by requiring employers to offer salaries to prospective employees based on merit, not gender, race, or ethnicity.”

“The 9th Circuit’s ruling represents a step backward in the fight for equal pay and only serves to reinforce the salary gap that has persisted for generations,” said Congressman Nadler (D-NY).  “To end this cycle of gender and racial pay inequality, states and localities—including New York City—have recently passed laws banning employers from asking about salary history. Congress should follow New York’s lead and ensure that people all around the country are afforded the same opportunity to break the cycle of pay inequity.”

“Forcing employees and potential employees to disclose their salary history sabotages our efforts to combat the wage gap for women and minorities,” said Congresswoman Speier. “The Pay Equity for All Act protects applicants from being frozen in pay scales unrelated to their experience, skills, and merit.”

Trumps Appoints NLRB’s Miscimarra

In case you missed it, late last week President Donald Trump  appointed Philip Miscimarra as the permanent head of the National Labor Relations Board, a role the Republican had been holding since Trump nominated him to temporarily fill the position shortly after his inauguration.

According to Reuters, Miscimarra, a former partner at Morgan Lewis & Bockius, was first appointed to the Board in 2013 by then-President Barack Obama “and has routinely broken with his Democratic colleagues on key labor issues.”

We first wrote about Miscimarra back in February, when legal experts weighed in on where they thought his appointment would take the board:

Michael Lotito, a partner and co-chair of the Workplace Policy Institute at Littler Mendelson, calls the appointment of Miscimarra the “first step” in a process of returning the board to balancing the rights of employees with the legitimate interests of employers as set forth in the National Labor Relations Act.

“Over the past five years, the NLRB has reversed over 4,500 years of precedent, often over the dissent of [new chair]  Miscimarra,” Lotito says. “Now, the new administration must appoint two new members to the Board to fill the vacancies that exist.  Hopefully, that will happen soon followed by quick confirmation. Only then, with the board at full strength, will it be able to tackle critical workplace issues needing a reasoned resolution.”

Steve Bernstein, a partner at Fisher Phillips in Tampa, Fla., says that, as the NLRB’s lone Republican for the past several months, Miscimarra  has authored some of the more vigorous and compelling dissents seen in some time:

“An examination of those dissents may offer a roadmap of what we might expect going forward, as the board moves toward a return to full strength,” he says.

A number of Miscimarra ‘s dissents call for greater clarity in the standards to be applied by his agency, Bernstein says, along with a more flexible approach to evaluating employer policies that takes into account the unique justifications for the policies themselves.

More recently, Miscimarra  has applied that “common-sense” approach to a number of NLRB doctrines, ranging from the employee status of graduate teaching assistants to the supervisory status of patient care coordinators, Bernstein says. Miscimarra, he adds, also has challenged controversial decisions invalidating binding arbitration provisions and limiting an employer’s right to insist upon confidentiality in workplace investigations.

“At the same time,” Berstein says, “he has openly questioned the NLRB’s apparent departure from long-standing precedent with respect to doctrine governing the use of permanent striker replacements, along with the test for joint-employer status.”

 

Trump Takes on H1-B Visas

President Trump is expected to sign a new executive order today “aimed at making it harder for technology companies to recruit low-wage workers from foreign countries and undercut Americans looking for jobs,” according to the New York Times.

The order is expected to be signed during the president’s visit to a Wisconsin toolmaker today, and is a continuation of Trump’s line of attack from his campaign.

From the Times:

As a candidate, Mr. Trump often assailed the government’s H-1B visa program, under which the government admits 85,000 immigrants each year, mostly to work in high-tech jobs. Mr. Trump pledged to end the program, which he said was allowing companies to fire Americans and replace them with lower-cost foreign employees.

The president’s order, according to officials who spoke to the newspaper on the condition of anonymity, seeks changes to the program that would require applicants and their potential employers to demonstrate that the visas are going only to “the most highly skilled workers” in their fields.

As a result,  the H-1B visa would no longer be a cheap way for companies to replace American workers. But technology executives, who have argued that the program is vital to their ability to recruit talent, are likely to be frustrated by the change:

Robert D. Atkinson, president of the Information Technology and Innovation Foundation, a research group sponsored by several tech companies, predicted in January that a crackdown on H-1B visas would be counterproductive.

“The effect would end up being exactly the opposite of what Trump wants,” he said. “Companies would go offshore, like Microsoft did with Vancouver, Canada,” to seek talent.

Earlier this week, Peter Cappelli, an HREonline.com columnist and Wharton professor, posted a column on the topic of H1-B visas and whom the program really benefits:

When we talk about programs like this one, the question of whether it is “good” or “bad” for the country is almost impossible to answer objectively. What we can answer is, good for whom and bad for whom? A new study by John Bound, Gaurav Khanna and Nicolas Morales  examines that question, and the results should be familiar to anyone who has studied supply and demand.

So who benefits?

The companies that employ them, leading to lower prices for the goods and services they produced and in turn benefits for consumers.

Who loses?

U.S. employees in computer science see their wages lower as a result. Here’s the finding that may be a surprise: College enrollment in IT programs declines when the H1-B visa program expands. Why should that be? Because there aren’t as many IT jobs available to U.S. workers, and wages for them are lower, so some students would otherwise pursue that field go elsewhere.

Cappelli says that, while the notion of bringing in foreign workers to make up for worker shortfalls makes sense in smaller countries, it doesn’t work in the U.S.:

Young people in particular are constantly trying to figure out where the jobs will be, colleges hunt for job-market niches where they can attract students and workers move thousands of miles if there are good jobs available. What we know from this study — which parallels what we learned years ago in fields such as nursing — is that bringing in foreign workers slows down the process through which the U.S. labor market adjusts to new demands.

That seems to be the case for the H1-B program and the IT industry.

Cappelli says the fact that so many U.S. IT companies seem so reliant on these foreign temp workers points to a definite problem here. It remains to be seen how Trump’s anticipated order will solve that problem.