A contrary (and common sense) appellate view on rude employees and the NLRA

It’s been six weeks since I reported on NLRB v. Pier Sixty, in which the 2nd Circuit Court of Appeals held that the National Labor Relations Act protected the profanity-laced Facebook rant of a disgruntled employee. I have hoped that Pier Sixty is an aberration. Thankfully, last week the 1st Circuit came along with a well reasoned contrarian view in a case in which the alleged employee misconduct was much less severe.

WIRTW #464 (the “school’s out…” edition)

One of the elements of my kids’ school that I like most is that the curriculum provides many opportunities for public speaking at every grade level. Each of mine had their separate chance to exhibit their comfort in front of crowd during the last week of school.

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?