"This & That" Tuesday: Equal Pay, Disability Discrimination

 

May 26, 2015

Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

Announcements

You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U, in general, can be found on my website.

 

Upcoming Events

June 2, 2015

Understanding and Building a Disciplinary Process

Compliance Key

Webinar

Information can be found on my website.

 

June 4, 2015

East SGV CPA Group

2015 Labor Law Update

Information can be found on my website.

 

June 9, 2015

South Pasadena Rotary Club

The New Paid Sick Leave Act

Information can be found on my website.

 

July 15, 2015

West Inland Empire Employer Advisory Council

Coaching to Improve Performance

Information can be found on my website.

 

Equal Pay and the Law
Income equality and equal pay lately have been in the news, lately. Employers should be aware that state and federal law require equal pay based on equal work.

 

The federal Equal Pay Act and the California Equal Pay Law require employers to provide men and women equal pay for substantially equal work. “Substantially equal” means the positions require roughly the same levels of (1) skill (2) effort and (3) responsibility. The work also must be (4) performed under similar working conditions and (5) within the same establishment. “Skill” refers to training, education, or experience actually needed to perform the position. “Effort” measures the physical and mental requirements of the job — e.g., long hours or heavy lifting. “Responsibility” means the level of accountability associated with the position, such as handling money or trade secrets, for example. “Similar working conditions” means the physical comfort and risks are about the same for both jobs. “Same establishment” generally means the same physical/geographical location, unless salaries are set uniformly without regard to the location of the employee.

 

Unlike other anti-discrimination laws, it is not necessary for an employee to prove intent to violate equal pay laws. An employee making this showing is entitled to the gap in pay plus an equivalent amount in liquidated damages. So, if an employee shows she made $15,000 less than her male counterpart for the same work, she would be entitled to $30,000 in damages.

 

Note: Pay differentials are permitted when they are based on legitimate job-based differences including seniority, merit, quantity/quality of production, or any other reason unrelated to sex. The employer has the burden of showing that these differences exist.

 

The Federal Lily Ledbetter Act (2009) allows an employee to file an equal pay claim long after the employer made the discriminatory decision that led to the pay disparity. Therefore Lily Ledbetter Act’s expanded statute of limitations may provide greater protection for employees than the California Labor Code’s equal pay provision.

 

To minimize the potential for litigation, employers should consider developing a rational salary structure based on internal and market conditions. At the very least, employers should review similarly situated employees’ pay rates to ensure that there are lawful reasons to explain pay disparities among employees who perform the same work.

 

Norfolk Southern Railway Pays $110,000 to Settle Disability Discrimination

Norfolk, Va.-based Norfolk Southern Railway Company, which operates in the eastern United States, will pay $110,000 to settle a disability discrimination lawsuit brought by EEOC.

 

According to the EEOC's lawsuit, Norfolk Southern violated federal law by medically disqualifying a track maintenance worker because of degenerative disc disease, a spine condition, without doing an individualized assessment of whether he could perform the essential functions of his job.  After receiving treatment for his condition and being cleared to return to work by his physician, Norfolk Southern's medical director disqualified him from his job and terminated him without first determining whether his medical condition actually affected his ability to perform the job.   

 

Such alleged conduct violates the Americans with Disabilities Act (ADA), which requires employers to perform an individualized assessment of an employee's ability to perform the essential functions of his or her job rather than making assumptions about the employee's ability.  The consent decree settling the suit, in addition to the monetary relief, includes provisions for equal employment opportunity training, reporting and posting of anti-discrimination notices. 

 

A primary purpose of the ADA is to prevent employers from making assumptions, whether fueled by prejudice or ignorance, about what employees with disabilities can do in the workplace.  An individualized assessment is a crucial and necessary part in the effort to overcome these prejudices.

 

Factoids

• 34% of Americans did not visit a dentist last year.
• 25% of people over 65 have lost all of their teeth.
• California Businesses Average 19% higher operating costs than the rest of the country
• 13% of employers offer retirement solutions customized for female employees.

 

Quote of the Blog

“You can tell more about a person from what he says about others than by what others say about him.”

~Leo Aiken~