labor lawAdivision of labor law center

The EEOC on April 22, 2009 released guidelines of best practices for employers who have workers with personal care-giving responsibilities.

Many employment law experts take exception to this action by the EEOC. They point out that no federal (and few state) laws specifically protect caregivers from discrimination. One SHRM representative rather caustically remarks that the EEOC has enough to do, enforcing discrimination based on race, color, religion, national ancestry, sex, pregnancy, disability and age, without branching out into more controversial areas.

The EEOC, however, contends that most caregivers are covered under several existing laws including:

• The Americans with Disabilities Act, which prohibits discrimination based on association with a disabled person. This law would protect an employee who was caring for her developmentally disabled adult sister, or a grandparent who was in a wheelchair
• Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on sex or race, when caregivers are treated disparately. For example, an employer may assume that a female caregiver with a disabled child cannot travel, and therefore is not eligible for a promotion. Or, the employer may assume that a male employee cannot or should not have caregiver responsibilities.
• FMLA, the federal Family and Medical Leave Act, which permits employees to take up to 12 weeks of unpaid, job-protected leave to care for a parent, son or daughter or spouse with a serious health condition. Employers are legally required to notify the employee within 5 days of an absence that could qualify as FMLA. Instead, many employers deny time off to workers with care-giving responsibilities.

Even the EEOC admits that these guidelines are a bit of a reach. “Federal law (more…)

Since 2006, the EEOC has focused on a new type of discrimination in the workplace – discrimination against caregivers.

Now the EEOC has released  best practices to avoid caregiver discrimination. The 10-page document outlines steps employers can take to avoid this increasing type of illegal discrimination.

Employers should note that no federal law currently makes caregivers a protected class. However, the EEOC is increasingly investigating and in some cases filing suits on complaints from caregivers.

Caregiver discrimination is an easy mistake for the employer to make. Suppose Sue has two daughters under the age of 6. One of her daughters has special needs due to a congenital disability. Sue’s employer decides not to promote her to a regional sales position that requires travel, because of her personal situation. The employer assumes that Sue will be unable to travel, or will do a poor job in the new position, because of her caregiver responsibilities. This is illegal discrimination. Sue is losing out on a promotion she would otherwise receive, simply because she is associated with a disabled person – a type of illegal discrimination prohibited under ADA, the Americans with Disabilities Act.

Sue may also be the target of illegal discrimination based on sex under Title VII of the Civil Rights Act of 1964, if a male employee in the same situation would be promoted.

Caregiver responsibilities can include (more…)

On January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009. The fact that this act was Obama’s first bill signed into law, may signal a busy year ahead for labor legislation.

In a statement before the signing, President Obama said, “Lilly Ledbetter did not set out to be a trailblazer or a household name. She was just a good hard worker who did her job — and she did it well — for nearly two decades before discovering that for years, she was paid less than her male colleagues for doing the very same work. Over the course of her career, she lost more than $200,000 in salary, and even more in pension and Social Security benefits — losses that she still feels today.”

Lilly Ledbetter worked at Goodyear Tire and Rubber Company for two decades before learning that she had consistently been paid less than her male colleagues for the identical job. She filed suit (more…)

The U.S. House of Representatives recently passed the Paycheck Fairness Act, an amendment to the FLSA or federal Fair Labor Standards Act.

The Paycheck Fairness Act, also known as HB 12, would amend provisions of the FLSA to revise remedies and improve enforcement efforts for preventing wage discrimination based on an employee’s gender.

This act is likely to pass the Senate and be signed into law by President Barack Obama. If it does, employers may face many more lawsuits for discrimination based on gender.

Every employer should have a clear written policy prohibiting discrimination in the workplace, including gender discrimination and wage discrimination.

The Paycheck Fairness Act was passed to provide regulator support for the Ledbetter Fair Pay Act.

The voting was largely along party lines, with many (more…)

The U.S. House of Representatives recently passed the Ledbetter Fair Pay Act. In doing so, the House Democrats acted quickly to fulfill a 2008 campaign promise.

The Ledbetter Fair Pay Act, also known as HB 11, will overturn a decision by the U.S. Supreme Court that employees have only 6 months to file a claim for pay discrimination against an employer.

The law is named after Lilly Ledbetter, an Alabama woman who was paid less than her male colleagues for the same work at Goodyear Tire and Rubber Company, for more than 20 years. The Supreme Court ruled that since Ledbetter did not file a complaint during the first 6 months she was employed, the discrimination was legal. This was true, although Ledbetter had no reason to believe for several years that she was the target of discrimination.

Votes for the Ledbetter Fair Pay Act were split according to party lines, with the overwhelming majority of Republicans voting against the bill. Republican business leaders say that the measure will increase the number of employment and pay discrimination claims against employers. They point out that even when such a claim is unfounded, it is expensive for an employer to fight the claim in court. Winning can carry a high price tag, including attorney’s fees in excess of $100,000. 

Many Democrats supported the Ledbetter Fair Pay Act. Many pointed out that the law will help eliminate discrimination in pay based on gender, race, color, national ancestry, age, etc. Proponents point out that women still earn only 78% of the wages earned by men holding the same jobs.

This law makes it even more crucial that every employer have an anti-discrimination policy and training in place. Employers should also review wages to ensure that they can be justified by objective criteria such as the employee’s qualifications and performance evaluations.

A similar bill passed the House in July 2007, but faced still opposition by Republicans in the Senate. Then-president George W. Bush also vowed to veto the bill, if it was passed by the Senate.

President Obama has said repeatedly that he supports the measures, and vowed to sign it if passed. With Democrats now holding 57 Senate seats, it seems likely that this bill will be passed and signed into law in 2009.

The AARP, formerly known as the American Association of Retired Persons supports the bill. Business groups including SHRM, the Society of Human Resource Management and the U.S. Chamber of Commerce, oppose the bill. They argue that a strict interpretation of the bill could result in companies being unable to pay different salaries based on geographical area. If an employer paid a manager in New York City more than a manager in Birmingham, Alabama for example, the employer could be sued. Because the cost of living in New York is almost twice that of Birmingham, employers have long had to pay higher salaries in such metro areas to attract equally qualified candidates in both regions.