Gender and Pay Equity - Page 19 of 24

EEOC More Than Doubles the Fine for Failure to Comply with Notice-Posting Requirements

The Equal Employment Opportunity Commission (EEOC) has published a new rule in the Federal Register that will more than double the monetary penalty for employers that violate the notice-posting requirements of Title VII and other nondiscrimination statutes. Click here to view the rule on the Federal Register’s website.

Effective July 5, 2016, the maximum penalty for violating the notice posting requirements will be $525 per violation, a substantial increase from the previous penalty of $210 per violation.

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A Notable Week Indeed – From OSHA to Trade Secrets to ADA Accommodations and Transgender Rights!

It’s been a busy and, let’s say notable, week in the area of employment law. Here’s a quick recap, with more to come in future posts, of what you may have missed if you were focused elsewhere this week.

First, OSHA published a new injury Rule this week. While it does not take effect until January 1, 2017, employers should not wait until then to begin thinking about what changes may be necessary to ensure full compliance in the new year. The rule changes create a new cause of action for employees if they suffer retaliation for reporting a workplace injury, and employers are expected to ensure that policies addressing safety do not discourage employees from reporting such injuries. Large employers will also have some additional reporting requirements to OSHA. And, significantly, and in line with the current administration’s agenda of transparency, OSHA will begin making injury data accessible to the public, after removing any personally identifiable information regarding employees. That’s just a summary, with more to come in a future blog post. Stay tuned.

Second, did you hear that President Obama signed into law the Defend Trade Secret Act of 2016? Yes, that’s right, claims for trade secret misappropriation are not just limited to what the applicable state law provides. The new law creates a federal cause of action for the theft/misappropriation of trade secrets that are “related to a product or service used in, or intended for use in, interstate or foreign commerce.” The law also creates a new mechanism for a court to order the civil seizure of property, ex parte, if an employer can meet certain stringent standards for such an order.

Third, not to be overshadowed by either the President or OSHA, the EEOC published its own resource document this week regarding employer duties to provide leave as a reasonable accommodations in the workplace. While the new resource tracks what the EEOC has been saying for many years (or what we, as employment attorneys, know from tracking EEOC litigation and publications), the new resource delves a little deeper into how employers should be analyzing an employee’s request for leave and may be a helpful resource for employers who may still be under the mistaken impression that simply applying a leave policy (or workplace rule) the same to everyone is acceptable under the ADA (hint: we know that employers must modify policies for individuals with a disability if doing so could be a form of reasonable accommodation). Our mantra of no more “automatic termination” policies can no longer be ignored. This is serious stuff. Lots more to come on this topic.

Fourth, the EEOC was also busy issuing a new fact sheet on bathroom access for transgender employees. The fact sheet is brief, essentially reciting the few decisions issued on the topic, and reiterating for employers that transgender employees must be permitted to use the bathroom that corresponds with their gender identity (not biological sex) and cannot be conditioned on an employee having undergone reassignment surgery. Also, employers beware, providing a separate, single-user bathroom for a transgender employee is a form of discrimination (although you can provide a single-user bathroom for use by all employees). A transgender employee must have equal access to the common bathroom that corresponds with their gender identity, regardless of whether it makes other employees uncomfortable.

These are just a few of the many things that happened this week. Stay tuned for further analysis on these topics and more (including the much-anticipated DOL overtime regulations that could be published as early as next week).

New York City Earned Sick Time Act Amended Effective March 4, 2016

The New York City Earned Sick Time Act, originally enacted in June 2013, has been amended effective March 4, 2016. The Earned Sick Time Act generally requires employers with five or more employees in New York City to provide eligible employees up to 40 hours of paid sick leave each year for themselves or eligible family members. The new rules clarify parts of the Earned Sick Time Act, establish requirements to carry it out and meet its goals, and provide guidance to covered employers and protected employees.

Written Sick Time Policies

Employers may no longer distribute the Notice of Employee Rights promulgated by the Department of Consumer Affairs in lieu of distributing or posting their own written sick time policies. But it is important to note that distribution of the Notice of Employee Rights is still required.

The Amended Act further requires that an employer’s written sick time policies state, at a minimum:

The employer’s method of calculating sick time. If, on the first day of the calendar year, the employer provides employees with an amount of sick time that meets or exceeds the requirements of the Act by the employee’s 120th day of employment (known as “frontloading”), the written policy must specify the amount of frontloaded sick time to be provided. If the employer does not frontload, the policy must specify when accrual of sick time starts, the rate at which an employee accrues sick time, and the maximum number of hours an employee may accrue in a calendar year.

The employer’s policies regarding the use of sick time, including any limitations or conditions. Written policies must now include: (1) any requirement that an employee provide notice of a need to use sick time; (2) any requirement for written documentation or verification of the use of sick time, and the employer’s policy regarding consequences if an employee fails to provide such documentation; (3) any minimum increment or fixed period for the use of sick time; and (4) any policy on employee discipline for misuse of sick time.

The employer’s policy regarding carry-over of unused sick time at the end of an employer’s calendar year.

If an employer fails to provide an employee with a copy of its written policy, the employer cannot deny sick time or payment of sick time to the employee based on non-compliance with the policy.

Employer Recordkeeping

Employers are now required to maintain records demonstrating compliance with the requirements of the Earned Sick Time Act, including records of any policies required by the Act, for a period of three years. Employers must also maintain contemporaneous and accurate records that show, for each employee:

The employee’s name, address, phone number, employment start date, employment end date (if any), rate of pay, and whether the employee is exempt from overtime requirements;
The hours worked each week by the employee, unless the employee is exempt from overtime requirements;
The date and time of each instance of sick time used by the employee and the amount paid for each instance;
Any change in the material terms of employment specific to the employee; and
The date the Notice of Employee Rights was provided to the employee and proof that the Notice of Rights was received by the employee.

There is a penalty involved if an employer fails to follow these much more detailed requirements. An employer’s failure to maintain, retain or produce a record that is “relevant to a material fact” alleged by the Department in a notice of hearing or these rules, creates a “reasonable inference” that such fact is true.

Minimum Increments and Fixed Intervals

Employers may now set fixed periods of 30 minutes or any smaller amount of time for the use of accrued sick time beyond the minimum increment (not to exceed four hours per day) and may require fixed start times for such intervals. The Notice of Adoption of Rule issued by the Department of Consumer Affairs provides the following example: An employer maintains a four-hour minimum sick time increment and now requires that employees use sick time in 30 minute intervals that start on the hour or half-hour. An employee who is scheduled to work 8:00 a.m. to 4:00 p.m. schedules a doctor’s appointment for 9:00 a.m. and notifies the employer of her intent to use sick time and return to work the same day. If the employee does not return to work until 12:17 p.m., the employer can require the employee to use four and a half hours of her accrued sick time and require her to begin work at 12:30 p.m.

Temporary Help Firms

The Act also now defines the term “temporary help firm,” as an organization that recruits and hires its own employees and assigns those employees to perform work or services for another organization to: (i) support or supplement the other organization’s workforce; (ii) provide assistance in special work situations including, but not limited to, employee absences, skill shortages or seasonal workloads; or (iii) perform specific assignments or projects. When a temporary help firm places a temporary employee in an organization, the temporary help firm is now solely responsible for compliance with all of the provisions of the Earned Sick Time Act for that temporary employee, regardless of the size of the organization where the temporary help firm places the employee.

Penalties

If the Department finds that an employer has a policy or practice of not providing or refusing to allow employees to use paid sick leave required under the Act, employers now will be subject to penalties for “each and every employee” affected by the policy.

Employer Considerations

In light of these recent amendments and the increased penalties for non-compliance with the Act, New York City employers should ensure that part of their “spring cleaning” involves a thorough review of their existing written sick time policies and recordkeeping practices. Such a review with counsel should include preparation of compliant employee notice materials and recordkeeping forms.

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.

Get the Most Out of Your Employee Payroll Audit

Employee payroll audits, which have long been recommended as a best practice for corporations that want to stay on the right side of the law, have become even more critical with the current proliferation of labor and employment laws at the state level. Among other things, the California Fair Pay Act, which went into effect on January 1, 2016, places new demands on California employers that in many cases can only be effectively satisfied by means that include a payroll audit.

Earlier this month, we held a webinar to discuss the CA Fair Pay Act requirements and what employees should do to comply. Below you will find some of the key takeaways.

What is the California Fair Pay Act?

The new law goes further and imposes more obligations on employers than longstanding federal and state equal-pay and employment-discrimination laws. More than simply requiring employers to pay men and women equal pay for the same work, the California statute prohibits employers from paying members of one sex less than the rates paid to employees of the opposite sex “for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.” And the employees of opposite sexes whose jobs and pay are being compared need not work together in the same establishment. There are several important defenses to liability under the law, such as the employer’s use of a bona fide factor that is not sex-related.

How can a payroll audit help?

Determining what types of work are “substantially similar” in terms of skill, effort, responsibility and working conditions is no easy task. That’s where a payroll audit can help.

On a step-by-step basis, a properly conducted audit will identify potential problems under the California Fair Pay Act by identifying positions that have “substantially similar work,” analyzing the pay of these workers by gender, finding any disparities in pay, and determining whether any defenses apply. For example, does the company have a bona fide seniority system or merit system, or is there a business necessity for the disparities in pay?

In addition to these complex Fair Pay Act questions, employee payroll audits remain desirable or necessary for other purposes, such as ensuring that employees are treated fairly under the company’s employee benefit plan and that certain employees or groups of employees are not excluded from the plan.

What steps should be taken?

When conducting a payroll audit, it should be done with review and consultation of attorney with the end goal of identifying and quickly addressing disparities that cannot be explained adequately or need to be corrected. It is important to note that the audit is subject to attorney/client privilege and/or work product protection. The following are key steps in the audit process:

Consider all job titles/descriptions across all geographic regions
Consider how to identify or sort based on disparate geographical locations
Compare the positions that have “substantially similar work”
Determine if the statutory exemptions apply
Identify explanations for disparities
Address disparities that can’t be explained
Determine what action needs to be taken

Ongoing Compliance

From a compliance perspective, the number one benefit to conducting employee payroll audits is the ability to determine what action needs to be taken to address and correct disparities if they exist. Failure to address disparities that can’t be explained within the requirements of the California Fair Pay Act or the Federal Pay Act can result in penalties, sanctions and, in some cases, litigation with the DOL and/or IRS. Ongoing compliance should include regular review of the following:

Handbooks and policies to remove outdated references to “equal” work
Policies that prevent employees from discussing or asking about other employees’ compensation
How compensation decisions are made and adjust if necessary
Job descriptions – update and describe as comprehensive as possible
Record keeping – records must be kept for three years
Training of HR personnel, senior management on the new law and how it should be applied in setting compensation at hiring

Click here to watch the full presentation.

Click here to view a PDF of the presentation.

Possible Amendment to New Jersey’s Anti-Discrimination Law Would Likely Mean More Claims, Greater Liability Risks and Larger Damages Awards

Earlier this week, the New Jersey General Assembly passed a bill that would amend the New Jersey Law Against Discrimination (“NJLAD”) to address specifically pay differentials among employees of different sexes who perform “substantially similar” work. The amendment, which the state Senate passed last month, will now be delivered to the Governor for consideration.

As the NJLAD exists now, an employee can bring a pay-related claim only by alleging that the differential amounts to sex discrimination and satisfying a comparatively higher standard. If the bill is signed into law, New Jersey would follow in the footsteps of other states like New York and California, which have recently updated their discrimination laws to provide a separate cause of action specifically for unequal pay.

The bill, if enacted into law, would severely limit the circumstances under which an employer can pay male and female employees different amounts for “substantially similar” work. An employer would be permitted to do so if it can demonstrate that it is utilizing a seniority (pay based on tenure) or merit (pay based on achieving certain goals) system. Alternatively, the employer would need to demonstrate that each of the following factors exists:

• The differential is based on one or more legitimate, bona fide factors other than sex, such as training, education or experience, or the quantity or quality of production;

• The factor or factors do not perpetuate a sex-based differential in compensation;

• Each of the factors is applied reasonably;

• One or more of the factors account for the entire wage differential; and

• The factors are job-related with respect to the position in question and based on a legitimate business necessity, and there are no alternative business practices that would serve the same business purpose without producing the wage differential.

If enacted, the New Jersey bill would also significantly increase potential employer exposure, in that the recovery period would be extended to pick up the entire time period when the pay differential existed.

With the passing of this bill by both houses, and with laws specifically targeting gender-based pay differences on the rise generally, employers would be wise to look at their employees’ titles and job descriptions to identify “substantially similar” positions and any pay differentials among the employees in those positions. Where such differences exist, employers will want to explore the reason for those differences and whether changes need to be made. If an employer has an established seniority or merit-based system on which it intends to rely, it is important that the system be set forth in detail and made available to all employees, so that there is no question as to its existence and applicability later.