Benefits and Same Sex Marriage

Exactly two years after the landmark DOMA decision, the Supreme Court has ruled that the Constitution guarantees a nationwide right to same-sex marriages.   All states, including the District of Columbia, must now recognize these unions.

What does that mean for an employer?  Review your benefits plans to ensure you have accounted for this new ruling! The impact may differ from state to state with respect to benefits.  One note, regardless of where an employee lives, s/he will be entitled to take leave under FMLA to care for a legally married same - sex spouse.

Department of Labor. Overtime Protection

Today the Department of Labor announced a proposed rule that would extend overtime protections to nearly 5 million white collar workers within the first year of its implementation.  Failure to update the overtime regulations has left an exception to overtime eligibility originally meant for highly-compensated executive, administrative, and professional employees now applying to workers earning as little as $23,660 a year.  For example, a convenience store manager, fast food assistant manager, or some office workers may be expected to work 50 or 60 hours a week or more, making less than the poverty level for a family of four, and not receive a dime of overtime pay.  Today's proposed regulation is a critical first step toward ensuring that hard-working Americans are compensated fairly and have a chance to get ahead.

Missouri Employers and Workers Compensation Retaliation

After a somewhat lengthy delay, I've returned to the world of blogging.  As time allows!

For Missouri employers, a note of warning.  The Missouri Supreme Court has lowered the Standard of Proof for Workers Compensation retaliation claims.  On April 15, 2014, in Templemire v W & M Welding, Inc., the Missouri Supreme Court continued its pro employee interpretation of the employment at-law doctrine by significantly reducing the casualty standard for a workers compensation retaliation claims.  Prior to this ruling Missouri law had long required an employee to prove that the alleged retaliatory motive was the "exclusive factor" for the adverse action.   Such as  a termination.

Marketplace Notice

The ACA mandates that employers subject to the Fair Labor Standards Act (FLSA) provide a notice to employees with information regarding their coverage options, including those available in the Marketplace, by October 1, 2013.  The ACA added section 18B to the Fair Labor Standards Act (FLSA) requiring all employers subject to the FLSA to send the Marketplace Notice. 

Employers must send or provide the Notice to all employees, regardless of whether or not they are eligible for or enrolled in coverage under an employer-sponsored health plan.  Therefore, employers must send or provide the Marketplace Notice to part-time, seasonal, or temporary employees in addition to sending or providing the Notice to full-time employees.  While the initial notification is required to be provided to all current employees by October 1, 2013, employers must also send or provide the notice to new employees hired after October 1, 2013 within 14 days of such employee's date of hire.

Pursuant to the Affordable Care Act (ACA), individuals and employees will be able to access health insurance coverage through a private health insurance market - the Health Insurance Marketplace - beginning on January 1, 2014.

DOMA Decision

Lower courts have begun to issue rulings based on the Supreme Court's June 26, 2013, Defense of Marriage Act (DOMA) decision, with two district courts recently extending the ruling's application.  In addition, the Department of Labor revised a fact sheet on qualifying reasons for leave under the Family and Medical Leave Act (FMLA), in response to the Supreme Court's historic decision this summer striking down Section 3 of DOMA.

DOMA (Defense of Marriage Act)

First the history lesson.  The Defense of Marriage Act was enacted September 21, 1996, allowing states to refuse to recognize same-sex marriages granted under the laws of other states. 

Section 3 of the Act was ruled unconstitutional in June, 2013 thereby allowing same-sex married couples to be recognized as "spouses" for purposes of federal laws, and allowing them to receive federal protections such as Social Security, health insurance and retirement savings.  Essentially, same-sex couples who are legally married deserve equal rights to the benefits under Federal law that go to all other married couples. 

If you have followed the DOMA case, you know by now that the ruling will have far-reaching implications.  The recent ruling which mandates that all officially recognized marriages be treated equally under the law, has immediate legal ramifications for the 12 states that already allow same-sex marriages.  Opponents of same-sex marriage are bracing themselves for a wave of legal challenges in the states that do not recognize marriages of gay and lesbian couples. 

What does all of this mean for Human Resources and Texas employers?  Well, here in Texas marriage is defined as the "relationship between a man and a woman."   While the Supreme Court removed the federal definition of marriage, it left it to the states to decide whether to honor other states' laws on the matter.  This does not mean that Texas is required to legalize same-sex marriage.  Texas Family Code 6.204 states same-sex marriages performed in other states are void in Texas.  For Texas, there isn't a huge impact immediately.  However, employers should revisit the definition of "spouse" in their benefit plans to ensure that the definition is consistent with the employer's intent, in light of the Windsor decision.  With regard to qualified pensions, plan language and procedures will need to be considered because same-sex spouses have additional rights to federally protected benefits. 

Working Families Flexibility Act (H.R.1406)

(Not to be confused with the Flexibility For Working Families Act)

Over heavy opposition by the Democrats, a hotly debated bill was passed May 8th by House Republicans that will potentially loosen federal overtime laws.  The bill would amend long-standing labor laws (the 75 year old FLSA) by allowing private-sector employers to offer compensatory time off in lieu of time-and-a-half pay for overtime.  (The protections under FLSA were put in place to prevent employers from abusing the system and avoiding paying overtime to workers who put in more than 40 hours per week.)

The supporters of the bill have pitched it as an update to federal law, with the obligatory fluff that "it's about helping working moms and dads, providing the ability to commit time at home," per Rep. Martha Roby (R-Ala). 

Under the bill, employees may use their comp time only at the employer's convenience.     If a business is necessarily inflexible when it comes to scheduling time off as the business may relay on a small number of employees for an entire function, then comp time may not be a viable alternative.  For the small employer, the concern may be the potential lost productivity and the additional paperwork for tracking comp time accrued and used.

Yes, the bill has put in provisions to protect against abuse, and only offers the workers a chance to opt for the extra time off if that's what they want.  But I side with the Democrats that such an option is ripe for abuse by unscrupulous employers.  The bill is a potential way for extra work to be imposed on workers with no additional cost to the employer. 

Vicki Shabo is the Director of Work and Family Programs of the non-partisan National Partnership for Women and Families.  Her organization is staunchly opposed to H.R. 1406 and sees it as a wolf dressed in sheep's clothing.  "This is a dangerous proposal that pretends to be something that will help working families.  It will take money out of worker's pockets for overtime pay that they otherwise would have received in wages and instead replace it with possibly an empty promise or a mirage of time that's out in front of them that they may never be able to take."

"For the record, there are many ways for Congress to improve both worker pay and work life balance, including raising the minimum wage, instituting paid sick leave, ending discriminatory pay practices, easing the formation of unions and promoting advance notice for worker scheduling,  The House bill ignores what is helpful and embraces what is harmful."  The New York Times, May 10, 2013.

I highly doubt that this bill will go much further. The White House stated in early May that the president would be advised to veto such legislation on the grounds that it would weaken protections in the Fair Labor Standards Act.

FMLA Abuse and Employee Surveillance

An increasingly prevalent area of surveillance that the courts seem to be upholding is the hiring of private investigators to conduct surveillance on employees that are suspected of taking leave dishonestly under the Family Medical Leave Act.  While still a relatively new development, this is one in which the courts are, so far, siding with employers.  With that said, however, this is a very delicate topic as it deals with surveilling employees when they are not at work.  In most cases, there are heavy suspicions of the employee abusing their FMLA leave before any surveillance is conducted, and it is highly encouraged that employers seek legal counsel before considering this option.  (Virginia Business Law Blog)

The FMLA prohibits an employer from interfering with, restraining, or denying the exercise of or the attempt to exercise any right given under FMLA.   And, it is one of the largest employee abuse areas for employers.   One of the bases upon which an employer can defeat an FMLA "interference" claim is obtaining supporting documentation/evidence by the employer that an employee did not, in fact, take leave for a purpose authorized under the FMLA. 

I personally had a case 4 years ago in which an employee was placed on FMLA.  A week later we found out that the employee was moonlighting for another company.  After careful investigation, I found that the employee was performing the same tasks for the second company that the employee was restricted (medical requirements) from performing for us, his primary employer.

Employer surveillance of employees outside the workplace is an extremely touchy subject.  And, there are confusing legal issues to tackle.

In the Seventh Circuit Court decision, Vail v. Raybestos, "employers are allowed to spy on their employees not only when they are suspicious the employee is taking fraudulent leave under the FMLA, but also in any situation where the information gained by surveillance may be used as evidence to support the employer's honest belief the employee is taking fraudulent leave."    Diana Vail received more than 33 days of approved leave for chronic migraines.  The company noticed a pattern in regards to her leave and engaged the services of an off-duty police sergeant to monitor her activities.  The employee was found working for her husbands business during peak times.  The court dismissed her claim for interference stating that the plaintiff must show she took leave "for the intended purpose of the leave."

In Colburn v. Parker Hannifin (1st Cir., 2005), the employee claimed to be too dizzy to drive to work, but was caught working out at the gym while on leave.  The court found that the employer's surveillance did not violate the employees FMLA leave.

Tillman v. Ohio Bell Telephone, (6th Cir., 2011).  This case is note-worthy in that the employer sent the surveillance footage to an outside medical consultant for analysis before it made its employment decision. The consultant issued a report of her findings in which she concluded that, in her professional opinion, Tillman's activities on his days off were inconsistent with the medical restrictions.

When presented with evidence of suspected FMLA abuse, you must first independently investigate the issue before taking any action.  Avoid any conduct that interferes with FMLA.  Validate the accuracy of your suspicion before taking an adverse action against the employee.  Secondly be sure that any surveillance does not go too far and invades the privacy of the employee or the employee family members.

Healthcare Reform

The Affordable Health Care Act, a health care law, was passed in 2010.  By 2014 several health reform provisions will come into effect.  Unfortunately, with so many unanswered questions and loopholes, healthcare reform continues to confuse and bewilder employers.  Hopefully the below will provide some guidance.

For fully insured employers with 51+ employees, 2012-2013 health reform provisions include:

1. Limit employee contributions to FSAs.  Starting in 2013, employee salary reduction contributions to health FSA's will be limited to $2,500 per plan year, with indexed increases allowed in future years to adjust for inflation.
2. Employers who file 250 or more employee W-2 forms will be required to report the cost of employee's health benefit coverage on the employee's 2012 W-2 forms that are distributed in January 2013.   This requirement is informational only and does not mean that employees will be taxed on these dollars.
3. Provide written notice about Health Benefit Exchanges (Exchanges).  In late summer or fall (future guidance is expected on complying with this notice requirement), employers must provide written notice to current employees, and going forward, new employees, to inform them of the Exchanges and the circumstances under which they may be eligible for health insurance subsidies.
4. Assess health plan offerings.  Employers should begin assessing their health plan offerings to determine whether they meet the minimum value requirements that will become effective in 2014.  If plans do not meet the requirements, employers will need to explore alternative plan options/or the impact of paying assessments.
5. Requirements for providing the Summary of Benefits and Coverage (SBC) to your employees.  On or after September 23, 2012, group health plans and health insurance issuers offering group or individual health insurance coverage are required to provide an SBC that accurately describes the benefit and coverage under the applicable plan or coverage. The final regulations require that the SBC be provided in several instances (upon application, by the first day of coverage if there are any changes, special enrollees, upon renewal, upon request and off-renewal changes.)

2014 Health Reform Provisions.  Although the below provisions will not become effective until 2014, it is important for employers to know what is coming and what action is required!

1. Offer Minimum Essential Coverage (MEC).  Employers will want to consider whether they need to make changes to the cost and quality of the coverage offered to avoid penalties that will apply if that coverage is considered unaffordable or low in value.  Beginning in 2014, employers with 50-plus full-time employees may be subject to a penalty if an employee receives a premium credit or cost-sharing subsidy. The penalty is calculated as follows:
1. Employers not offering coverage.  If an employer does not offer MEC and one or more full-time employees receive a premium credit or cost-sharing subsidy through the Exchange, the penalty is $2,000 per year per full-time worker.  When calculating the penalty, the first 30 full-time workers are subtracted from the payment calculation.
2. Employers Offering Coverage:  If an employer offers MEC and one or more full-time employee receives a premium credit or cost-sharing subsidy through the Exchange, the penalty is $3,000 per employee who receives a premium credit or cost sharing subsidy.
2. An employer-sponsored plan that satisfies the ACA's reform requirements must:
1. Be affordable to the employee (premium must not exceed 9.5 percent of household income.  The IRS, however, has issued a safe-harbor allowing employers to substitute the employee's W-2 income for household income).
2. Provide minimum value, which is at least 60% of the total allowed cost of benefits.

Global Mobility and Crisis Planning

One of the most devastating things that can happen to a family is the unexpected death of a loved one.   You can't plan for it, death tends to come as a surprise.  And when the death occurs overseas the experience is even more traumatic.  The cultural and legal aspects of death and dying are varied across the globe.  Local customs, laws and procedures may not be clearly understood, creating barriers during an already trying time.

While we don't like to talk about the subject of death abroad, and I don't wish to be morbid, we must plan for every possible scenario.   Develop an Emergency Response Plan detailing steps to be followed addressing the death of an employee or any other crisis event such as a disappearance.  When building a plan, consider the following:

Disappearance:

1. Gather information (when/where last seen?  Last contact?  How traveling?  Was s/he seen with someone?  What search efforts have been initiated?)
2. Advise the U.S. State department.

Death:

1. Begin an event log, gathering background information and report crisis developments and responses.
2. Confirm status through local agencies (police, hospital, consulate)
3. Establish communication with family.
4. Seek assistance from U.S. Embassy/Consulate.
5. Contact local police and/or other law enforcement authorities in the country.
6. Coordinate the repatriation of remains. 

On the domestic front we plan for emergencies such as floods and tornadoes.  We follow OSHA guidelines in the workplace for the safety and protection of our employees.  Companies doing business on a global level should review their travel policies and ensure that a protocol has been established for dealing with the illness, injury and/or death of an employee. Ensure that it addresses the medical evacuation and/or shipping of the remains. 

Pending Legislation in Texas

Below is a small sampling of employment-related legislation filed in the Texas Legislature.   If passed and signed into law, these will have a tremendous impact on Texas employers.

HB238/SB237
Prohibition of employment discrimination on the basis of sexual orientation or gender identity or expression.

HB321
Deferred adjudication may not be used as a factor in employment decisions, housing or issuance of state licenses.

HB667
Puts leave for foster children on same basis as leave for biological or adopted children.

HB950
Incorporates federal law in the Lily Ledbetter Fair Pay Act of 2009.

HB1829
Relating to safe patient handling and movement practices at hospitals and nursing homes.  No retaliation or discrimination toward staff members who refuse to participate in unsafe handling of patients.

HB1188
Relating to limiting the liability of persons who employ persons with criminal convictions.  Tightens up on standards for proving negligent hiring and supervision of employees with prior convictions.

HB494/SB741
Extends to two years the time limit for filing a wage claim with Texas Workforce Commission.

SB340
If TWC finds bad faith on employer's part for failure to pay wages, it "shall" impose a penalty (instead of "may").

Happy Birthday to the Equal Pay Act

50 years ago today the Equal Pay Act was signed by President John F. Kennedy.  While equal pay is the law, the nation still faces gender wage disparities.  In 2012, women generally earned 77 percent of men's wages.  For African-American and Latina women, the number is even lower.    We have made progress, but it's not enough.

The Equal Pay Act requires that men and women in the same workplace be given equal pay for equal work.  The jobs need not be identical, but they must be substantially equal.  Remember that job descriptions and titles are irrelevant. 

On the front line of this battle is the EEOC who has made enforcing equal pay laws one of its six priorities as outlined in the Strategic Enforcement Plan.

Mother-Friendly Employers

While driving home I heard a radio commercial advertising Mother-Friendly Employers here in Texas.  We've come a long way.  Who would have thought that companies would advertise their support of breastfeeding in the workplace?  Or that a work-site might obtain "Mother-Friendly" designation?

The Texas House of Representatives passed HB 741 in early May.  HB 741 requires public employers, school districts, cities, counties and state agencies, to accommodate employees who need to express breast milk at the work place.  Under current law, working mothers who are hourly employees have federal protections in place for when they need to express milk in the workplace.  (The Federal Health Care Reform Bill, signed in March 2010, contained an amendment to the FLSA requiring employers to give breaks for nursing.)  However, salaried employees have no protections in state or federal law.  House Bill 741 seeks to close this loophole.

Employee Absenteeism

When I mention measuring employee absenteeism the first thing that comes to your mind is firing employees because they missed too many days at work.  Right?  Well, maybe it shouldn't.  You can measure absenteeism for many purposes including workforce planning, lost wages and reduced productivity.  But can you also use it to measure employee morale?

Employee absenteeism is a major concern for employers.  Yes, there is oftentimes a sense of entitlement in the workplace that it's okay to be absent.   And where there is an excessive pattern, or a trend in the days the employee is absent, then it is time to take action. But, we also need to acknowledge that people get sick.  In those situations where you perceive a pattern of excessive absenteeism is developing, I highly recommend a discussion with the employee in order to determine if there is a potential FMLA, ADA issue to be addressed.

Absenteeism can be due to a variety of reasons.  If an employee is stressed about their workload, this may manifest itself through absenteeism.  Stress with the job routine and/or job satisfaction, the environment (cold, hot, noise) even with management (style, personality traits).  If stress is a factor, you need to discuss strategies to resolve the stressor.  If one employee is experiencing stress, perhaps others are as well.  We all have more to do and less time to do it in today's business environment.

In those instances where there appears to be an unacceptable level of absenteeism:

1. Meet with the employee.
2. Express your concern.
3. Provide the employee with an opportunity to explain themselves.

Some random statistics for you:

According to a 2012 global workforce survey, "highly engaged employees have lower 'presenteeism' (lost productivity at work) and less absenteeism than disengaged employees. The former lose an average of 7.6 days per year to presenteeism, compared with an average 14.1 days for the disengaged employees....

According to a 2010 Metlife report, "employees with eldercare responsibilities were more likely to report missed days of work. This was driven by the much higher absenteeism among younger caregiving employees, ages 18 to 39. Overall, 9% of non-caregivers missed at least one day of work over the past...

According to a 2009 survey by the National Alliance for Caregiving, "over seven in ten caregivers were employed at some time when they were caregiving (73%). Among them, two-thirds (66%) have gone in late, left early, or taken time off during the day to deal with caregiving issues (66%). One in five...

Policies: Do the Employees Get It?

Earlier today I had a long-tenured employee ask “What are the procedures for documenting sick leave?”  “ .. . . I realize it is documented someplace but I’m not sure where and I thought you would know it off “the top of your head” saving me the trouble of finding it.”    I smiled.  This document in question is located in both the employee handbook as well as a standalone policy on the HR portal.

Companies devote substantial time and resources in developing policies.  Once policies are developed we roll them out in meetings, post them, put them on the company intranet, distribute them via email, and/or hard copy distribution.   We obtain the signed acknowledgement as proof that the employee received and is aware of the policy - thereby negating any future claims from the employee that s/he "didn't know."   But no matter how or how often policies are communicated, sometimes it seems the company falls short in the communication of the policy.  Are the policies then wasted?  No, but perhaps we need to better understand our audience.  How are our employees receiving the information we are communicating?  Words must always be carefully chosen; nuances must be considered. 

My recommendation, schedule assessments of your company policies at regular intervals. This will allow you to assess the employee understanding of the policies and to obtain feedback.

Yes, you will still have the rare employee who finds it easier to ask HR than look something up.  But, after all, that's why we're here!

Update: Affordable Care Act

Federal Government Releases Proposed Rule on 90-day Waiting Period

On March 18, the federal government issued a proposed rule on the 90-day waiting period that would implement the 90-day waiting period limitation and make technical amendments to the Affordable Care Act's (ACA) health care coverage requirements.

Under the proposed rule, for plan years beginning on or after Jan. 1, 2014, employers that provide a group health plan or health insurance issuer offering group health insurance coverage cannot require an otherwise eligible employee (or dependent) to wait more than 90 days before coverage becomes effective.

The proposed rule also clarifies that any period before a late or special enrollment by an employee is not a waiting period.  The proposed conforming amendments make changes to existing requirements and other portability provisions that are either no longer applicable or need to be changed because of new market reform protections under ACA.

The proposed rule will be published in the Federal Register today, March 21st.  Comments will be due 60 days after publication.

Religious Accommodation

Good Friday is right around the corner.  That day will always serve as a reminder to me of the event forever referred to as The Employee Mutiny of 2011.  In 2011, I upset a few employees by converting the Good Friday Holiday to a floating holiday.  Yes, change is difficult, no matter how small the change.  But with proper communication the employees came to understand that they didn't lose the day, it was just handled a bit differently. 

 

Religious discrimination by employers is expressly prohibited by Title VII of the Civil Rights Act of 1964. Although employers don't have to satisfy an employee's every desire in accommodating his/her religious beliefs, employers are required to make "reasonable accommodations." The most common such accommodation is granting an employee time off to observe a religious holiday.

 

My goal in converting this to a floating holiday was to allow other employees, with different religious beliefs, to have a holiday for their use.  As any organization grows, you want to be able to recognize all religions.  (Another basic step is to modify the vacation/PTO policy to reflect the use of available vacation time for religious holidays not normally recognized by the company.)

 

We live in a beautiful and diverse world!  There's Christmas, Hanukkah, Kwanzaa, the feasts for Santeria.  We have Hindu holidays, Muslim holidays and even Pagan holidays.  Employers and HR professionals all struggle with how to celebrate them, how to recognize the diversity of these religious beliefs and practices.  With care, communication and understanding, the process is easy!

 

The Importance of Training Managers

What is the cost to an employer when a manager doesn't recognize s/he is acting in a discriminatory manner?   Some managers don't seem to understand what discrimination means, or oftentimes how to recognize it.  Discrimination, and the cost of discrimination, is a problem that companies just can't ignore.

In an EEOC Press release of 1/23/2013 the Dallas-based Fries Restaurant Management will pay a former employee $25,000 to settle a religious discrimination lawsuit.  The employee, Ashanti McShan, is a member of the Christian Pentecostal Church which requires women to wear either skirts or dresses.  During the interview process with Burger King, Ashanti requested a religious accommodation to wear a black skirt versus the black uniform pants.  She was told by the interviewing manager that her accommodation would be granted.  However, during her orientation the store manager advised her she could not wear a skirt and had to leave the store.  McShan attempted to contact higher management, and was unable to speak with anyone.  She was later discharged as a result of the accommodation denial.   Title VII of the Civil Rights Act of 1964 prohibits religious discrimination.  It requires employers to make reasonable accommodation as long as such does not pose an undue hardship on the organization.   

Florida Courts:  In Hurley v. Kent of Naples, on or about 2005, Patrick Hurley was diagnosed with depression and related mental health symptoms.  The doctor who provided the diagnosis, and the therapist, both advised that he should take medical leave.   The employee advised the company senior officer that he had been diagnosed with depression and needed time off to deal with it.  Having accumulated several weeks of vacation, the employee requested to take most of the year off on vacation.   His request was denied and he was terminated.  Obviously an FMLA suit, alleging interference with FMLA rights and retaliation, followed and Hurley won.  (FMLA entitles eligible employees to take unpaid, job-protected leave for certain family and medical reasons.)    The estimated judgement:

• $200,000 for actual monetary losses
• $353,901.85 for front pay
• $200,000 liquidated damages
• $233,109.75 for attorneys' fees
• $21,329.36 for "costs."

Texas courts: In an EEOC press release of December 18, 2012, Dillard's will pay $2 million to settle a class action disability discrimination lawsuit. Dillard's Inc, enforced a maximum-leave policy limiting the amount of health-related leave an employee could take. Additionally, since 2005, Dillard's had a national policy and practice that required employees to disclose the exact nature of their medical conditions to be approved for sick leave. Further, Dillard's terminated a class of employees nationwide for taking sick leave beyond the maximum amount of time allowed. This policy violated the ADA which prohibits employers from making inquiries into the disabilities of employee's unless it is job-related and necessary for the conduct of business.  The second violation was that managers/supervisors (or even HR) did not regularly engage in an interactive process with employees to determine if more leave was allowed under the ADA as an accommodation.  (More information is available on the EEOC website.)  While you can't blame the managers for this company-wide form of discrimination, logically HR should have identified the violation and pushed for policy reform.  But, who's to say that they didn't?

When discharging an employee who just revealed the need to take time off for a medical condition, use caution. Make sure the discharge reason is unrelated to the request.  Remember, firing an employee who is pregnant has legal risk.  Firing an employee because she is pregnant is illegal.

Employers can take steps to prevent discrimination claims by ensuring that all managers are properly trained.  Please invest in training your managers. 

"The best way to begin is to begin." 
                        - Benjamin Franklin.

Concerted Activity

When you think of the term "concerted activity" there is often an automatic assumption that a union, or union activity, is involved.  But that's not always the case.  Section 7 of the NLRA states "Employees shall have the right to self-organize, to form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities. . . " 

 

Protected concerted activity sometimes has nothing to do with unions at all.   Employees who get together and complain to management about their pay or benefits is engaged in concerted activity.   Concerted activity can include internal complaints of discrimination, discriminatory harassment complaints, etc., all of which is protected by Section 7 of the NLRA.  

Is Gender Bias Alive And Well?

Gender Bias n. unequal treatment in employment opportunity (such as promotion, pay, benefits and privileges), and the expectations due to attitudes based on the sex of an employee or group of employees.  Gender bias can be a legitimate basis for a lawsuit under anti-discrimination statutes.

 

Gender bias begins at an early age.  From the pink or blue outfits children receive at infancy, the influence of toy selections, to how teachers respond to a child in school, or the books we read them at bedtime. (An April, 2011 study of gender bias in literature examined nearly 6,000 children's books published from 1900 to 2000.  Of those, 57% had a central male character compared with only 31% female protagonists.  Presumably animals of an indeterminate gender led the rest.)  So how do we respond to gender bias in the workplace?

 

First let's understand that gender bias is more subtle than sex discrimination.    Bias occurs because of personal values, perceptions and outdated, traditional views about men and women.  We may encounter gender bias in many forms and degrees.   For example, both men and women tend to view women who express anger more negatively than they view men who express anger.  Even when the members of both sexes use the same words and body language to express that anger.  Gender bias exists where men or women are evaluated or perceived differently depending on whether their actions violate expectations of how they should act or expectations of what behaviors are required for a role they have assumed.  Whether the subject of bias is male or female, the effects of gender bias can be devastating.

 

Beginning in as early as 1982,  state judiciaries began to address gender bias by creating a variety of research committees and task forces.  Since that time, attention around gender bias in the workplace has continued to grow in every industry.

 

Then:

"Gender bias exists in many forms throughout the Massachusetts court system.  Sexist language and behavior are still common, despite an increased understanding that these practices are wrong."  New England Law Review.  Volume 24, Spring 1990.

"The New Mexico Supreme Court is greatly concerned over manifestations of gender bias in the court environment within the State of New Mexico."  "In 1987, the State Bar of New Mexico established The Task Force on Women and the Legal Profession and requested that the Task Force examine the needs of women lawyers, their acceptance by the Bench and Bar in general. . . . . The Final Report, issued November 2, 1990, documented gender bias not only directed toward women lawyers, but affecting female litigants, witnesses, and court employees."

The State of Florida, Gender Bias Study Commission:  Executive Summary, found that "during it's two years of hearing and study, that gender bias -- discrimination based solely on one's sex -- is a reality for far too many people involved in the legal system.  (1990)

In 2011, a team at Yale University asked 127 professors at six U.S. research universities to judge the merits of college graduates.  The graduates were applying for a position as a lab manager before heading to graduate school.  While using identical resumes, of which half were obviously female applicants, the participates were significantly more likely to hire the man, and at a higher salary.  Interestingly enough, the bias was equally strong among both the female and male scientists and did not vary by age, race or discipline. (www.sciencemag.com)

 

Now:

"The Supreme Court's decision on the Walmart case - in which five justices, all male, sided with the company in denying 1.5 million female employees the right to pursue a class-action sex-discrimination lawsuit - showed a truly stunning obliviousness to the way gender bias actually plays out in the workplace."  The Daily Beast.  "The Supreme Court's Cluelessness on Gender Bias."  June 22, 2012.

 

MSLGroup currently has a class action lawsuit pending alleging gender pay discrimination.  The $100 million class action lawsuit was filed in February 2011 and represents women who worked at the agency from 2008 until the date of judgement.  Of the 33 total plaintiffs, two are current MSL employees.  One, Sheila McLean, is currently a SVP and a 12-year veteran of the firm.  The lawsuit alleges that MSL paid female professionals less; did not promote women at the same rate as male counterparts; and conducted discriminatory demotions, terminations and reassignments for female staffers during the agency's 2009 reorganization.

 

After all the steps we have taken, all the studies, polls, research papers, etc., gender bias is still alive and well in the workplace.  As an employer, you need to be aware if gender bias exists in your workforce.  Train your employees to identify it, and to acknowledge it.  Secondly, call attention to the bias.  Make a commitment to eliminating it in your workforce.

 

 Title VII prohibits discrimination "because of" an employee's sex. As an employer we may not take adverse action against an employee because of their sex. Sex can not play a role in any aspect of their employment including hiring, transfers, promotions, pay, disciplinary action, suspensions, and discharges. It's also important to understand that while Title VII was originally understood to apply only to women, that is no longer the case. It also prohibits discrimination against men. For example, when a male employee is denied a promotion in favor of a female employee, and the male can prove that the reason was "because of his sex," there may be claim for sex discrimination.