Is the glass ceiling self-imposed?

One blogger has theorized that the glass ceiling and the disparity in pay between men and women is self-imposed by women who prioritize motherhood over their careers. Tracy Coenen, on her Fraud Flies Blog, writes that workplace discrimination against women is largely a myth:

The problem here is clear, and it’s not a case of discrimination. It’s that women make choices which put them behind on the career path. I don’t begrudge any woman her right or her choice to have children. However, if she’s going to leave the workforce or reduce her role at work after having children, she can’t expect to keep up with her peer group.

Many say the choices women must make are difficult, as most don’t have a husband who is willing to stay home and perform the traditional role that a “housewife” used to in order that his wife may focus completely on her career. I don’t doubt that’s the case, but women still must be accountable for their own choices in partners, careers, and family life.

These false cries of “discrimination” upset me because when there are legitimate cases of discrimination, I think they are likely to be viewed more skeptically. Let’s use the word discrimination only when it’s really appropriate.

And for women in corporate America, let’s just acknowledge that not being paid as much as men or not attaining as many high-level positions as many is really related to career and family choices. I think our market is efficient, and works well to award pay at a level that is earned by the employee, regardless of gender.

I have to admit, It's an interesting theory, albeit one without any hard data to back it up. I'd like to think that in 2008, we have gotten beyond stereotyping women, minorities, the disabled, etc., and that all employment decisions are based on ability. Of course, that perception would be hopelessly naive. There are still lots of examples of women being passed over because of the family choices they have made.

Employees, regardless of gender, have the right to have a career and a family and not be punished for it. The balance for employers is not to confuse ability with dedication to job over all else. It's when businesses begin to equate performance deficiencies with an employee's family life that the specter of family responsibility discrimination begins to raise its troublesome head.

Governor seeks compromise to keep Healthy Families Act off the November ballot

Governor Strickland has spoken out against the Ohio Healthy Families Act as bad for Ohio businesses, but he is not necessarily opposed to to idea of paid sick days as a concept. Thus, he has been working with both Sick Days Ohio, the group sponsoring the OHFA, and business groups such as Northeast Ohio's Council of Smaller Enterprises (COSE) to forge a compromised bill and keep the OHFA off the November ballot. Governor Strickland is pushing what he calls "principles of sick leave," which are less specific than the current proposal. Regardless of any changes, however, the Cleveland Plain Dealer reports that COSE and other business interests may nevertheless oppose any sort of paid sick leave:

COSE, which represents nearly 17,000 small businesses in Greater Cleveland, is particularly opposed to the coalition's provision that would allow workers to take sick time in small increments. It says such time-keeping would be an administrative nightmare and would potentially disrupt time-sensitive manufacturing.

But eliminating that provision would not lessen COSE's overall opposition to the proposal. ...

COSE is working with the Ohio Chamber of Commerce and other business groups to oppose the ballot issue. They have formed the Ohioans to Protect Jobs and Fair Benefits coalition.

Millard said the coalition wants to raise $10 million for its campaign. He said he would rather see the money invested in job expansion and to help attract businesses but said the coalition has little choice.

Any compromise would have to be reached in the next two weeks. The coalition behind the OHFA has until August 6 to submit 120,000 valid voter signatures to qualify the proposal for the November 4 ballot, and is expected to hit that mark.

Given the philosophical differences between business and labor on this issue, I would be very surprised if the Governor is able to forge a compromise.

WIRTW #41

Another week, another week of excellent employment law posts from around the country for everyone to peruse.

The Delaware Employment Law Blog takes us back to HR Summer School in its second class on the FMLA, this time covering the meaning of a serious health condition.

Ohio Practical Business Law gives us a primer on non-compete agreements under Ohio law.

The Connecticut Employment Law Blog, meanwhile, teaches us about the WARN Act and what companies must do in mass layoffs and plant closures so as not to run afoul of it.

The Pennsylvania Labor & Employment Blog talks about investigating employee misconduct through the surveillance of data.

Finally, Fair Labor Standards Act Law tells us how to properly structure unpaid internships so they don't violate the FLSA.

The federal minimum wage rises, but does anyone in Ohio care?

Today, the federal minimum wage increases to $6.55 an hour. This should be bigger news than it is, but in Ohio this increase will have almost no impact at all. Thanks to 2006's minimum wage ballot initiative, Ohio's minimum wage in already $7.00 an hour. So, file this information away as interesting trivia, and know that Ohio already outpaces the federal government by $.45 an hour.

Don't estop yourself into coverage

Lots of statutes have thresholds that must be met for coverage. For example, the FMLA only applies to employees with at least 1 year of tenure who worked at least 1,250 hours in the preceding year for an employer with 50 or more employees. As Peters v. Gilead Sciences (7th Cir. 7/14/08) illustrates, those thresholds are not the only way an employee can be covered.

There was no dispute that Peters was not eligible for statutory FMLA leave. Nevertheless, at the outset of his medical leave of absence, Gilead sent him a letter stating that "all employees" were eligible. Gilead's employee handbook makes a similar promise of 12 weeks of medical leave. Because of those representations, Peters might be eligible for medical leave under a promissory estoppel theory, and it may have been illegal for Gilead to replace him while on such leave:

Gilead’s handbook does not exclude any employees from the entitlement to 12 weeks of family and medical leave except those who do not meet the basic prerequisites of 12 months’ employment with the company and 1,250 hours of work in the preceding 12 months. There is no reason employers cannot offer FMLA-like leave benefits using eligibility requirements less restrictive than those in the FMLA .... and that is what Gilead did. Peters’ statutory ineligibility is irrelevant....

In other words, because Gilead promised leave, Peters was entitled to rely on that promise and enforce it to the extent that he relied on it to his detriment.

There are two critical lessons for employers to take away from this case:

1. Triple-check employee handbooks for appropriate disclaimers. The key to a promissory estoppel claim is that any detrimental reliance was reasonable. A disclaimer in a handbook that tells employees that the handbook is not a contract but a general statement of company policy, that the company has the ability to modify such policy at any time, and that employees are not to rely upon anything in the handbook as binding on the company, would go a long way to showing that an employee's reliance was not reasonable.
2. Be careful what you tell employees. The handbook notwithstanding, if you represent to an employee that s/he is entitled to a benefit (such as FMLA leave) you better be prepared to stand behind that statement and live up to everything that goes along with it. Before you tell an employee that s/he is covered by the FMLA, it is best to check whether that statement is accurate. That checking may require a 15 minute phone call to your employment counsel. That 15 minute phone call, however, could save your company 2 years of litigation hell.

EEOC issues new guidance on religious discrimination

This week, the EEOC issued three new publications on religious discrimination: a new chapter in its Compliance Manual, a Q&A, and Best Practices for Eradicating Religious Discrimination in the Workplace. While these documents are not binding, and a court is free to interpret Title VII as it sees fit, it is always good to know how the EEOC views the workplace discrimination landscape.

The Best Practices will prove to be the most helpful for employers. It's not earth shattering, but does give businesses a helpful synopsis of standards that will help minimize liability, such as:

• Carefully and timely recording the accurate business reasons for disciplinary or performance-related actions.
• Ensuring that an anti-harassment policy covers religious harassment.
• Training managers and supervisors on how to recognize religious accommodation requests from employees, and developing internal procedures for processing religious accommodation requests.
• Making an individualized decision instead of one based on stereotypes in determining whether a request for an accommodation poses an undue hardship

[Hat tip: Connecticut Employment Law Blog and Manpower Employment Blawg]

Illustrating the dangers of the Healthy Families Act to Ohio

Yesterday, a commenter left the following on my earlier post, Deconstructing the Ohio Healthy Families Act:

What effect will this have on attracting new business to Ohio? Just the administrative burden alone is formidable, let alone the potential costs. If I have the responsibility of choosing between building a new plant in Ohio, which has the mandated 7 paid sick days, or another state which doesn't have such a provision, I would have to have a lot of other positives to the Ohio location.

This comment underscores just how critical it is to defeat this measure in  November. Ohio is at an economic crossroads, and yet we have the opportunity to bring our state forward into the 21st century. That opportunity includes a burgeoning bio-medical industry to work in tandem with our outstanding hospital systems, and Governor Strickland's efforts to lure so-called "green" companies to Ohio to help develop alternate fuel sources. Enacting legislation that will create labor costs to do business in Ohio that do not exist in any other state is not the way to go about curing our state's ills. We need incentives for companies to settle in Ohio, not incentives for them to look elsewhere and leave.

The OHFA is a wolf in sheep's clothing. Ohioans going to the polls in November will be drawn to vote in its favor because people think that they want paid time off. If there are no jobs left in Ohio because this measure passes, what good will it do?