The importance of an anti-harassment culture

I came across an interesting article at the Harvard Business Review—The Omissions That Make So Many Sexual Harassment Policies Ineffective. The article starts with a simple question. “If 98% of organizations in the United States have a sexual harassment policy, why does sexual harassment continue to be such a persistent and devastating problem in the American workplace?”

When is a settlement not a settlement? FLSA

When you settle a lawsuit with an employee, you are bargaining for finality. You are paying that employee to resolve all disputes between you, whether asserted or unasserted. You want to be done with that individual forever.

Except that is not always the case.

6th Circuit joins the battle over class-action waivers

There has been much judicial and administrative ink spilled over the past few years over whether the National Labor Relations Act permits employers to require employees to give up their rights to litigate or arbitrate class or collective actions. This issue is one of the most important issues facing employers, which have  looked to class-action and collective-action waivers as an important weapon to fight to scourge of wage and hour litigation. 

Last week, in NLRB v. Alternative Entertainment [pdf], the 6th Circuit joined the battle. 

WIRTW #463 (the “so special” edition)

This weekend is a big one for Norah. Today, she graduates from 5th grade and walks across the quad to become a middle schooler. And tomorrow, she turns 11. I think she’s more excited than usual about this birthday, because 10 was not her favorite year. Let’s just say that she and preteen girl-drama have not mixed well, and some have gone out of their way to make her feel less than special. (and, yes, I realize that the drama is only going to get worse).

Which is why I legit teared up this past weekend when she sang, “Brass in Pocket” by The Pretenders.

When equal pay is not “equal” pay

The Equal Pay Act requires that an employer pay its male and female employees equal pay for equal work. The jobs need not be identical, but they must be substantially equal, and substantial equality is measured by job content, not job titles. This Act is a strict liability law, which means that intent does not matter. If a women is paid less than male for substantially similar work, then the law has been violated, regardless of the employer’s intent.

This strict liability, however, does not mean that pay disparities always equal liability. The EPA has several built-in defenses, including when the pay differential was “based on any other factor other than sex.” So, what happens if two comparable employees, one male and one female, come to you with different salary histories. Does the Equal Pay Act require that you gross up a lower earning female to match the salary of a higher paid male, or do the mere disparate prior salaries justify the pay disparity under the Equal Pay Act?

Federal court breaks new ground with transgender disability discrimination claim

The ADA expressly excludes from its coverage “transvestism, transsexualism, … [and] gender identity disorders not resulting from physical impairments….”

Thus, it should be an easy call for a court to dismiss a lawsuit in which an employee, born a male but who identifies and presents as a female, alleges disability discrimination because of her gender identity disorder.

Right?

I still despise the misnamed and overused phrase “wage theft”

Writing at Inc.com, Suzanne Lucas (aka Evil HR Lady) reports on a study published by the Economics Policy Institute, which says that employers short their employees $15 billion in wages per year. According to Suzanne, “Wage theft isn’t always the case of a corrupt boss attempting to take advantage of employees.” She is 100 percent correct. In fact, most instances of an employer not paying an employee all he or she is owed under the law results from our overly complex and anachronistic wage and hour laws, not a malicious skinflint of a boss intentionally stealing from workers.