Legislative News

November 2008 Update

From Devine, Millimet, & Branch Employment Newsletters

Recent Developments in Equal Pay                               By: Karen Levchuk

Equal Pay Act of 1963-Prohibits wage discrimination based on sex. Exceptions are provided for differences in pay that result from: (1) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.  Under consideration is a new law (Paycheck Fairness Act), where the term “any other factor other than sex” becomes a bona fide factor other than sex such as education, training, or experience, “and may be limited with other factors. 

The Paycheck Fairness Act would also prohibit employers from retaliating by punishing employers for sharing salary information with their co-workers.  So while employers still would be permitted to protect proprietary trade secrets and other confidential business information under the new provision, employees would be free to discuss their compensation.  ANH employers would be advised to review pay structures to ensure they are not paying female employees less than male employees performing substantially equal work.  Admittedly, it is not always easy to tell what should be considered “substantially equal work” Also, look for gaps in pay between similarly situated male and female employees that cannot be explained by bona fide factors such as education, training, and experience.

EEOC Issues Guidance on Performance and conduct Standards under the ADA

By Margaret O’Brien

The EEOC recently released a comprehensive guide addressing how the American’s with Disability Act (ADA) applies to various performance and conduct standards in the workplace. It makes clear that employers can apply the same performance and conduct standards to all employees, with or without disabilities. However, the guide emphasizes that the ADA requires employers to provide reasonable accommodations to enable individuals with disabilities to meet those standards.

Also, an employer is permitted to request medical information or order a medical examination when it is job related and consistent with business necessity.  The medical inquiry must be limited to the information needed to determine if the employee is able to perform the essential functions of the position or poses direct threat to co-workers or others.  In addition, employers cannot tell co-workers that an employee with a disability is receiving an accommodation.  Feel free and review more information at www.eeoc.gov/facts/performance-conduct.htm

Refusal to Have Sex With Boss May Not Be Protected Activity Under Title VII

By: Mark Broth

Title VII protects employees from retaliation if they opposed conduct that they reasonably believes Title VII, it is unsettled whether simply rejecting a supervisor’s conduct (without otherwise reporting the supervisor’s conduct) is sufficient oppositional behavior to constitute protected conduct.

Employers should remain cautious of consensual workplace relationships between supervisors and their subordinates. Given the potential for legal complications, it is strongly recommended that supervisors and subordinates who become involved in a personal relationship be removed from a direct reporting relationship.