Equal Work = Equal Pay

The 1963 federal Equal Pay Act (EPA) requires employers to pay men and women equally for performing the same, or essentially the same, work. While the law is worded neutrally (it is just as unlawful to underpay either gender), Congress enacted the EPA to remedy the long-standing pay discrimination against women.

The National Committee on Pay Equity demonstrates the entrenched disparities present in 1963 are far from rectified. For example, the NCPE reports: “Census statistics released September 16, 2010 show that the women still earn 77 percent of what men earn, based on the median earnings of full-time, year-round workers in 2009. Both men’s and women’s earnings showed slight increases from 2008 to 2009, with men’s at $47,127 and women’s at $36,278, a difference of $10,849.” Also according to the NCPE: “Women who graduate from college earn only 72% as much as men with the same education.”

In addition to equal wages, women are also entitled to the same benefits, including vacation time, health insurance, profit sharing, retirement plans, and bonuses.

Perhaps the most challenging aspect of the EPA is its protection against wage discrimination for equivalent jobs, not only identical ones. Courts focus not on job titles but on job duties, skill, effort, and responsibility and whether work is performed under similar conditions. For example, it could be argued that a company paying its receptionists (made up largely of females) less than its customer service representatives (made up largely of male employees) may be in violation of the EPA if the jobs could be shown equivalent in skill, workload, etc.

For a suggested employer procedure to confirm or strengthen EPA compliance, see the NCPE’s “Ten Step Guide.” An experienced employment law attorney can assist with policies and other preventative measures.

Equal Work = Equal Pay

The 1963 federal Equal Pay Act (EPA) requires employers to pay men and women equally for performing the same, or essentially the same, work. While the law is worded neutrally (it is just as unlawful to underpay either gender), Congress enacted the EPA to remedy the long-standing pay discrimination against women.

The National Committee on Pay Equity demonstrates the entrenched disparities present in 1963 are far from rectified. For example, the NCPE reports: “Census statistics released September 16, 2010 show that the women still earn 77 percent of what men earn, based on the median earnings of full-time, year-round workers in 2009. Both men’s and women’s earnings showed slight increases from 2008 to 2009, with men’s at $47,127 and women’s at $36,278, a difference of $10,849.” Also according to the NCPE: “Women who graduate from college earn only 72% as much as men with the same education.”

In addition to equal wages, women are also entitled to the same benefits, including vacation time, health insurance, profit sharing, retirement plans, and bonuses.

Perhaps the most challenging aspect of the EPA is its protection against wage discrimination for equivalent jobs, not only identical ones. Courts focus not on job titles but on job duties, skill, effort, and responsibility and whether work is performed under similar conditions. For example, it could be argued that a company paying its receptionists (made up largely of females) less than its customer service representatives (made up largely of male employees) may be in violation of the EPA if the jobs could be shown equivalent in skill, workload, etc.

For a suggested employer procedure to confirm or strengthen EPA compliance, see the NCPE’s “Ten Step Guide.” An experienced employment law attorney can assist with policies and other preventative measures.

How to Fire a Troublesome Worker Without Getting Burned

Susan is the supervisor for “Tony the Trouble-Maker.” Although Tony used to be the top producer in the division, lately he has been rude to Susan, fights with his coworkers, and refuses to take responsibility when something goes wrong under his watch. Susan is struggling to keep her unit in the black and this guy is weighing down the whole area. She is now ready to terminate Tony’s employment. However, Susan seems to recall Tony once boasted about how he successfully sued his former employer for “tons of dough.” Susan is concerned if she terminates Tony, he will file a lawsuit for wrongful termination, and Susan doesn’t exactly relish the unnecessary cost or distraction. How can Susan reduce the likelihood of post-employment litigation?

Susan should offer Tony an additional severance pay amount in exchange for a signed release and waiver. In theory, this is a simple transaction. Tony will receive additional money beyond his final wages so long as he signs a document in which he agrees not to sue the company for claims including wrongful termination, discrimination, harassment, retaliation, or breach of contract.

However, there are several pitfalls to this arrangement of which Susan must be aware in order to ensure the applicable state agency (such as the California Department of Fair Employment and Housing) or federal agency (Equal Employment Opportunity Commission) will honor such a waiver. For example, if Susan’s company has at least twenty employees and Tony is age 40 or over, Susan must notify Tony that (1) he has up to 21 days to consider and sign the waiver after which time the company will withdraw the severance pay offer; and (2) he has another seven days to change his mind and rescind the agreement.

Handled correctly, we have found the great majority of departing workers will agree to such a severance package. Indeed, most don’t bother waiting for any part of the 21 day offer period to expire, instead signing and taking the severance check upon receiving and promptly reviewing the papers.

Our severance pay forms package includes a five-page overview of exact steps to take, two separate types of severance agreements and two corresponding checklists for the departing employee to initial and sign. By ensuring all these forms are properly understood and implemented, a company can take effective steps to prevent frivolous wrongful termination suits where the company judges it best to promote a worker’s smooth transition to other employment.

If you have any questions, please contact me or any of our other employment law attorneys. Best, Cindy Bamforth

June 30, 2010

Cal/OSHA Injury and Illness Summary Must Be Posted February 1, 2010

Employers must provide a safe work environment for their employees. The Occupational Safety and Health (OSH) Act of 1970 requires some employers to prepare and maintain logs of work-related injuries and illnesses. The federal Occupational Safety and Health Administration (OSHA) is tasked with overseeing these workplace health and safety regulations.

California companies with more than ten employees throughout 2009 who are not otherwise exempt from the posting requirement must post the Cal/OSHA injury and illness summary record (Cal/OSHA Form 300A) from February 1, 2010 through April 30, 2010. The form should be displayed in a visible area in the company so that all employees may view it.

Cal/OSHA Form 300A (Form 300A) contains a summary of significant work related accidents and illnesses. If the company had no recordable occupational injuries or illnesses in 2009, it must post Form 300A with zeros in the total lines. Please click here for a copy of Cal/OSHA Form 300A: http://www.dir.ca.gov/dosh/DoshReg/ApndxB300AFinal.pdf

In addition to completing and posting Form 300A, all eligible companies must also complete Cal/OSHA Form 300. The Form 300 is used to record more detailed information about each injury and illness and thus is not to be posted due to employee privacy concerns. Please click here for a copy of Cal/OSHA Form 300: http://www.dir.ca.gov/dosh/DoshReg/ApndxA300Final.pdf

Companies may also be exempt from this posting requirement if they are classified under certain Standard Industrial Classification (SIC) codes, unless otherwise asked to do so in writing by OSHA, the Bureau of Labor Statistics (BLS), or a state agency operating under the authority of OSHA or the BLS. Some partially exempt industries in California include: retail bakeries (SIC 546); new and used car dealers (SIC 551 and 552); eating and drinking places (SIC 58), dental offices (SIC 802), and real estate agents and managers (SIC 653). Please click here for a table of industries exempt from the above posting requirement in California:

https://www.osha.gov/recordkeeping/

For more information on the Cal/OSHA Forms 300 and 300A, please visit: http://www.dir.ca.gov/dosh/dosh_publications/RecKeepOverview.pdf

If you have any questions, please contact me or any of our other employment law attorneys. Best, Cindy Bamforth

When Employers Need to Pay Wages

Hiring students for temporary unpaid internships, while feasible, is laden with potential legal pitfalls for the unwary and uninformed. See, e.g., “The Unpaid Intern, Legal or Not,” The New York Times, April 2, 2010.

Employers must pay at least minimum wage to any worker who provides any labor and services to that enterprise. An employee cannot agree to waive his or her right to minimum wage. Such an agreement is void and unenforceable.

California Division of Labor Standards and Enforcement (DLSE) and the US Department of Labor (DOL) each have detailed guidelines for qualifying unpaid interns as exempt from the wage requirement.

Our article “An Employer’s Guide to New 2011 Laws” covers the six stringent California DLSE criteria:

• The intern’s training actions must be similar to those a student would carry out in a vocational school;
• The training is for the benefit of the trainee;
• The trainee does not displace regular employees, but works under close observation;
• The company derives no immediate advantage from the trainee’s actions and on occasion may have its operations actually impeded;
• The trainee is not necessarily entitled to a job at the completion of the training period; and
• The employer and the trainee understand that the trainee is not entitled to wages for the training time.

The federal DOL’s fact sheet lists six similar requirements:

• The internship, even though included in the actual operation of the facilities of the employer, is similar to training in an educational environment;
• The internship experience is for the benefit of the intern;
• The intern does not displace regular employees, but works under close supervision of existing staff;
• The employer derives no immediate advantage from the training activities of the intern and, on occasion may have its operations impeded;
• The intern is not necessarily entitled to a job at the conclusion of the internship; and
• The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

In essence, the DOL and DLSE each maintain that for an internship to be unpaid, it must be educational and predominantly for the benefit of the intern and not the employer.

The distinction between employees and interns is of course important for many issues besides minimum wage. Among other things, a business is obligated to provide employees with meal breaks and rest periods. While it’s a very good idea to include interns on meal break and rest period routines, it is not technically a violation of the law if a company does not provide them in the same manner as for employees.

It’s also a good idea to check with the company’s carrier to see if the business can add interns to the workers’ compensation coverage and, if not, to confirm other insurance coverage for on-premises injuries.

An experienced attorney can help you sort out this sometimes tricky area.

How to Avoid Costly Penalties for Missed Meal Breaks

As discussed in Bowles Law Report Volume 8, Issue 3, California courts have differed on what it means to “provide” hourly, exempt-from-overtime workers their meal and rest breaks. Until the California Supreme Court clarifies labor laws on breaks, we advise employers to err on the side of caution and require workers to take all applicable meal breaks.

California Labor Code Section 226.7 requires employers to pay non-exempt employees an additional hour of pay for each meal or rest period the employer fails to provide. In August 2007, the California Supreme Court found this additional pay fit the legal definition of “wages” and was thus subject to a three-year statute of limitations. See Murphy v. Kenneth Cole Productions Inc.

For example, if a full-time non-exempt employee was misclassified as exempt-from-overtime and thus consistently did not take her uninterrupted thirty minute meal breaks, she can file a claim for one additional hour of pay for each missed meal period going back three years from the date of her claim. Multiply this by a number of employees and the cost for employers can be exorbitant.

California employers are currently awaiting further clarity from the California Supreme Court as to what break labor laws define as “providing” meal breaks. The issues are (a) whether they must ensure their workers’ meal breaks are taken without fail, such as by literally policing their employees and enforcing meal breaks; or (b) whether they simply need to make meal breaks available to their staff without necessarily verifying staff actually took those breaks.

The uncertainty should be resolved once the California Supreme Court rules on Brinker Restaurant Corp. v. Superior Court. Although both sides have submitted their written arguments (briefs), as of March 12, 2010 the Court has yet to set oral argument. The Court has 90 days to issue its ruling after that argument date.

In the interim, employers should take all reasonable measures for ensuring non-exempt workers actually take timely, uninterrupted meal periods. Such measures include:

• Audit meal and rest period policies and practices to ensure they comply with applicable breaks labor laws;
• Ensure all non-exempt employees read and acknowledge in writing their understanding of the company’s meal and rest period policies;
• Determine if any exception applies for mandatory unpaid meal periods, such as an “on-duty” meal period and, if so, properly document such exception by written agreements in compliance with California law. See our blog article ” On-Duty Meal Breaks .“
• Have supervisors and managers conduct and document regular monitoring to ensure employees are taking their meal and rest periods and entering their unpaid meal period start and end times on time cards or sheets;
• If a worker is not taking the required meal period, correct the matter; pay the additional hour of pay to the worker if appropriate; document agreement by the worker to take those periods in the future; and discipline the worker for any further non-compliance; and
• Ensure proper record-keeping is in place and maintained for at least a rolling four-year period, or longer if currently engaged in litigation.

If you have any questions, please contact me or any of our other employment law attorneys. Best, Cindy Bamforth.

EEOC Reports Workplace-Related Legal Charges Approach Record High

In a January 6, 2010 press release, the U.S. Equal Employment Opportunity Commission (EEOC) divulged the number of workplace discrimination charges filed nationwide during fiscal year 2009 (October 1, 2008 to September 30, 2009). Cumulatively, the 93,277 charges filed in 2009 reached the second highest number in history, with monetary relief obtained for complainants totaling over $376 million.

Job bias charges, including those filed against state and local governments, reached record highs for charges alleging workplace discrimination based on disability, religion and/or national origin. Age-based discrimination charges reached the second-highest level ever.

Workplace retaliation was the most frequently cited charge, totaling 33,613 charges.

The EEOC filed 281 new lawsuits against employers last year.

These trends will most likely continue to rise in the coming year. In the 2010 Omnibus Appropriations Bill, Congress authorized the allocation of an extra $23 million to the EEOC. The EEOC is now hiring approximately 200 new investigators to help reduce its 70,000 case backlog.

In addition to sexual harassment prevention training and well-worded anti-discrimination policy, employers should also receive training on other forms of discrimination, such as discrimination by age, religion or disability to better protect their organizations from such discrimination and retaliation charges and lawsuits.

If you have any questions regarding anti-harassment, discrimination or retaliation training or any other employment law issues, please contact me or any of our other employment law attorneys.

To obtain a copy of the EEOC’s January 6, 2010 press release, go to http://www.eeoc.gov/eeoc/newsroom/release/1-6-10.cfm.

To obtain a copy of the EEOC’s charge filing statistics, go to http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm.

If you have any questions on these or any other employment laws, please contact me or any of our other employment law attorneys. Best wishes, Cindy Bamforth

New 2010 IRS Mileage Rate

On December 3, 2009, the IRS announced its 2010 standard deduction mileage rates (online at http://www.irs.gov/newsroom/article/0,,id=216048,00.html). As of January 1, 2010, the IRS is decreasing the IRS standard employee mileage deduction for business use of a motor vehicle to 50 cents per mile. (In 2009 the IRS mileage standard deduction was 55 cents per mile.) Employers that use the IRS rate or lower may deduct that amount as a business expense. However, employees who receive higher reimbursement may be required to pay taxes on the difference between their employer’s reimbursement rate and the IRS mileage deduction as “wages.” Employers should notify their employees if they intend to change the reimbursement rate.

If you have any questions on this or any other employment laws, please contact me or any of our other employment law attorneys. Best wishes, Bob Edwards

NEW California Civil Air Patrol Leave FOR EMERGENCY MISSIONS

Effective January 1, 2010, the Civil Air Patrol Employment Protection Act (new Labor Code Sections 1500 through 1507) requires employers with 15 or more employees to provide ten days or more of unpaid leave per year for volunteer members of the California Civil Air Patrol Wing to respond to emergency missions.

To qualify for this leave, volunteer Civil Air Patrol members must be employed by their current employer for at least 90 days immediately preceding the commencement of the leave. Employees are required to give the employer as much notice as possible of the intended dates of the leave.

At the conclusion of the leave, the employer must restore an employee to the position held when the leave began or to a position with equivalent seniority status, benefits, pay and other terms and conditions of employment.

If you have any questions on this or any other employment laws, please contact me or any of our other employment law attorneys. Best, Bob Edwards