Lynne Anne Anderson, Author at Laborsphere

Jury Awards $51 Million to an Age Discrimination Plaintiff: What Can We Learn?

A New Jersey jury awarded a mid-level manager $51.4 million(!) on January 26, 2017, after a short four-day trial. New Jersey juries have awarded age discrimination plaintiffs multi-million dollar verdicts in the past – but $51 million is roughly five times any prior award. Press coverage on the verdict speculates that this may be the highest jury award ever, throughout the country, in a single-plaintiff age discrimination case. While the post-trial motions and appeals are yet to be filed, there are some initial takeaways from this case.

As with most age discrimination lawsuits, this case arose out of a reduction in force (RIF). Robert Braden had been employed by Lockheed Martin, and its predecessors, for 28 years when he was let go in July of 2012 as part of a company-wide RIF. Six months later, Mr. Braden filed a charge of age discrimination with the EEOC based on the fact that he was the oldest of 6 people in a company unit, and the only one fired from that unit. He alleged that he was selected for the layoff at age 66 while the two other employees holding his same title, both significantly younger (ages 42 and 38), were allowed to keep their jobs. He also alleged that the company had a practice of giving younger workers better reviews and raises to keep them at the company, while older workers were given lower ratings and raises since they “had nowhere else to go.” He subsequently withdrew his claim with the EEOC so he could sue Lockheed Martin, which he did in federal court in Camden, New Jersey in 2014.

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Maryland’s Expanded Equal Pay Law Takes Effect October 1, 2016

Maryland joins California, New York and Massachusetts by passing legislation aimed at combating wage disparity based on gender. (For a discussion on California, New York and Massachusetts’s Equal Pay Laws, click on our previous posts.)

Expanding Equal Pay for Equal Work

The new law, which goes into effect October 1, 2016, amends Maryland’s existing Equal Pay for Equal Work Act by expanding the prohibition on wage discrimination based on “sex” to also include “gender identity.” The protection against pay discrimination for work performed in the same establishment and of comparable character or on the same operation encompasses more than just unequal payment of wages. The new law also bars discrimination for “providing less favorable employment opportunities,” which includes: (1) assigning or directing an employee into a less favorable career track or position; (2) failing to provide information about promotions or advancement opportunities in the full range of career tracks offered by the employer; or (3) limiting or depriving an employee of employment opportunities that would otherwise be available but for the employee’s sex or gender identity.

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Back to School Update on School-Related Parental Leave

As the summer comes to a close, employees are preparing for their children’s return to school, and will need to attend various school events and activities during the workday. An increasing number of states now mandate that public and private employers provide unpaid leave for this purpose, including the following states that have laws covering private employers:

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Massachusetts Joins California and New York with Aggressive Equal Pay Law

On August 1, Massachusetts added significant teeth to the state’s current equal pay law. The new law, “An Act to Establish Pay Equity,” not only targets compensation decisions, it also affects hiring practices. As of July 1, 2018, when the new law takes effect, employers cannot ask an applicant to provide his or her prior salary history until after the candidate has successfully negotiated a job offer and compensation package. This measure is intended to stop the perpetuation of gender pay disparities from one employer to the next. In addition, employers cannot use an employee’s prior salary history as a legitimate basis to pay a man more than a woman for comparable work.

The definition of comparable work is broad: “work that is substantially similar in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions: provided, however, that a job title or job description alone shall not determine comparability.”

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EEOC Issues Revised EEO-1 Proposal

The EEOC published its revised proposal for the new EEO-1 report today. The revised proposal came after extensive, and polarized, comments on the EEOC’s prior proposal this Spring. The prior proposal revised the existing EEO-1 report to require disclosure of data on pay ranges and hours worked in addition to the already required reporting on workforce profiles by race, ethnicity and gender. The revised proposal released today still requires reporting of this data. The EEOC has not changed course on its plan to use the data to identify discriminatory pay practices and target companies for investigations and class action equal pay lawsuits – without having to identify an injured party plaintiff. The primary change in the revised proposal is that the first date by which employers will have to submit the new EEO-1 report has been moved from September 2017 to March 31, 2018. In addition to allowing more time for employers to prepare for the new report, the EEOC made this change to simplify reporting by allowing employers to use existing W-2 data from the 2017 calendar year for the 2018 report. The EEOC also provided options for calculating “hours worked” for exempt employees, and will not require employers to collect hours worked for exempt workers if they do not already track those hours.

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Three Steps to Prepare for the Labor Department’s Proposed Rule on Paid Sick Leave

The U.S. Department of Labor (DOL) released a proposed rule that requires federal contractors and subcontractors to provide workers with seven days of paid sick leave on an annual basis. The proposed rule, released on Feb. 25, was created in response to President Barack Obama’s Executive Order 13706, which directed the DOL to issue and finalize regulations this year.

The proposed rule is projected to extend paid sick leave to more than 800,000 employees, 400,000 of which don’t currently receive any paid sick leave, within a five-year period, according to DOL estimates.

Although the DOL has extended the comments period on the proposed rule through April 12, employers and human resources professionals should start preparing for implementation. Here are three things companies can do to prepare:

1. Review and revise policies

HR professionals should compare their employer’s existing policies with the proposed rule to see where revisions are needed. Employers may find that the changes are not as drastic as expected, and they can plan for changes in existing policies to comply with the proposed rule.

For example, the proposed federal rule explains that existing sick leave policies can be used to satisfy the new requirements if they provide at least as much paid time off (i.e., 56 hours a year), and allow the employee to use the existing time off for the reasons covered by the new rule. Many employers likely already have similar policies in place, especially if they have employees in states and municipalities that currently require paid time off for attending to family illnesses, or if the employee has been a victim of domestic violence, including California, Connecticut, Philadelphia, New York City and Seattle, among others.

2. Track and evaluate employee reasons

Employers should also confirm that they are tracking the reasons why employees are taking time off from work. This is already important in terms of compliance with the Family and Medical Leave Act (FMLA) and corresponding state laws, and will make it easier to comply with the record keeping obligations under the new law. We often find that records may inaccurately report that the employee took vacation when the time was actually taken due to an employee’s illness or to care for a sick family member.

3. Document and verify

The proposed rule allows employers to require certification from an employee’s health care provider attesting to the need for leave if the employee is/was absent for three or more consecutive full work days, as is done in the context of FMLA leave or when providing time off as a reasonable accommodation under disability laws. That will help to prevent any possible misuse of the benefit.

Existing leave laws and the proposed rule also require employees to give as much advance notice as practicable regarding the need for paid time off. Employers should require compliance with reasonable “call-out” policies to minimize the disruption caused by absences covered by applicable leave laws.

The future of paid sick leave

While it is possible that this proposed rule may not come to fruition following the presidential election in November, it is indicative of a larger national push for paid sick leave. We are seeing a trend towards allowing employees to use sick time for reasons covered by this proposed new rule, such as care of family members. We are also seeing a trend in employers adopting general ‘PTO’ or paid time off policies that combine days off for personal time, such as attending a child’s school function or a routine doctor appointment, with vacation time and sick time.

With many state and local governments already leaning towards adding paid sick leave benefits, it would be wise for federal contractors and subcontractors to review their policies and make sure they are in compliance with this proposed rule.