GA2Yesterday, the Connecticut House of Representatives voted to pass legislation that would promote pay equity among men and women. However, the bill lacks a key provision that would have barred prospective employers from inquiring into an applicant’s salary history.

The CT Mirror and Hartford Business Journal do a good job reporting on the developments. The bill would:

  • “Ban employers from using a worker’s previously earned wages as a defense against a charge of pay inequity;
  • Protect employees from losing seniority based on time spent on maternity or other family or medical leave;
  • Strengthen the requirement that employers provide “comparable” pay for workers performing similar duties;
  • Clarify the state Commission on Human Rights and Opportunities’ ability to investigate complaints of discrimination when wages are involved.”

The Senate remains split along party lines, but the changes made to the bill make passage much more likely now.

The bill, House Bill 5591, can be downloaded here.

It’s unclear how much of an impact the bill will have. For example, the bill changes Conn. Gen. Stat. 31-75 that bars discrimination for work performed under “comparable” working conditions. Previously, the standard was “similar”.

But even the Office of Legislative Research was skeptical about this change noting “It is unclear whether this change has any legal effect.” After all, one definition of comparable is “(of a person or thing) able to be likened to another; similar”.

Moreover, many employers do not base pay on a “seniority system” but instead focus on merit instead. Thus, any changes to the statute on the “seniority system” will have minimal impact.

In any event, before employers act, it’s wise to wait to see what happens in the Senate. Any changes to the law would be effective October 1, 2017.  

 

 

If at first you succeed, try it again. 

Well, that may not be how the saying goes, but the first back-and-forth post between me and Nina Pirrotti, an employee-side attorney, was so well received that we’re back for another conversation. 

Today’s topic: What legislation are we both keeping our eyes out for at the Connecticut General Assembly?  

The Dialogue Begins

Dan Schwartz: So Nina, our first post was such a hit that I think we’re due for an encore.  Thanks for being up for this.

It has only bewn a few weeks, but it feels like we’re moving at warp speed on developments.  We could spend another post just on The Donald, sorry, Mr. President. Somehow I think we’re likely to talk about that again soon.

But let’s focus today on some of the legislative items we’re keeping an eye on, particularly in Connecticut. Each year, it seems like our General Assembly likes to roll out fresh employment law ideas.

Is there a particular bill that you’re keeping your eye on now from an employee-side perspective?

nina_t_pirrotti1-150x150Nina Pirrotti: I’m so glad you asked!   Yes, let me tell you about one bill that has been on my mind on the federal level (I am speaking about it at an ABA conference in sunny Puerto Vallarta really soon) and then I will give you a couple of highlights from our backyard.  

The federal bill that looms large for me right now (although concededly perhaps not as large as the prospect of sitting on the beach, tequila based beverage in hand) is the misleadingly named  Lawsuit Abuse Reduction Act (“LARA”) which would force judges to respond to Rule 11 motions in a particular manner. 

Rule 11 allows for the possibility of sanctions to be imposed on attorneys or parties who submit (or later advocate for) pleadings which have been filed for an improper purpose or which contain frivolous arguments or claims. 

While Rule 11 motions rear their ugly heads relatively rarely in litigation, a newly invigorated Republican majority in Congress has proposed LARA which would amend the sanctions provisions in Rule 11 to remove all judicial discretion – – regardless of the circumstances of the individual case- – in two critical respects. 

First it would require the court to sanction any attorney, law firm, or party who violates the rule.  Second it forces judges who find the rule has been violated to order the offending party to pay  the other party’s attorneys’ fees and costs.  Those in my world who oppose LARA say that there is no proof Rule 11 is not working in its current form, that the changes would burden the courts and that  its “once size fits all” mandatory sanctions would unfairly penalize employees in civil lawsuits.

Closer to home, two bills come to mind.  The first is a proposed modification of C.G.S.A. 31-51m, a statute which bars employers from retaliating against employees who report  employers’ unethical or legal wrongdoings to public bodies. 

The modification seeks to  protect employees who complain about such conduct internally or who refuse to participate in an activity they believe to be in violation of the law.   It also seeks to extend the timeline to bring an action under the law (employees now have only 90 days to file) and to provide for a greater array of damages if the employer violates the statute.

The second is a proposal to provide eligible employees with paid Family and Medical Leave Act leave.  The proposed legislation would require employees to contribute 1/2 of 1% of their wages to it (there would be no employer contribution) and employees cannot opt out it.   

We plaintiff employment lawyers would welcome both pieces of legislation as long overdue and reasonably tailored to protect Connecticut’s workforce.

What are your thoughts from the other side of the aisle, Dan?    Or is there other proposed legislation that has captured your attention?

Continue Reading The Dialogue: What Legislation We’re Keeping Our Eyes On

soccer1This morning came word that members of the U.S. National Women’s Soccer Team are filing a discrimination complaint against the U.S. Soccer Federation on the grounds that they are paid less than their male counterparts.

According to press reports, “the filing, citing figures from the USSF’s 2015 financial report, says that despite the women’s team generating nearly $20 million more revenue last year than the US men’s team, the women are paid almost four times less.”

U.S. Soccer issued its own release arguing: “While we have not seen this complaint and can’t comment on the specifics of it, we are disappointed about this action. We have been a world leader in women’s soccer and are proud of the commitment we have made to building the women’s game in the United States over the past 30 years.”

This is not the first time this argument has been raised. But it continues the forceful arguments of female athletes arguing that the pay disparity is at a minimum, unfair, or in other cases, illegal.

For example, Connecticut attorney Kelly Burns Gallagher has been talking about the disparities in the triathlon world for a while.  The 50 Women to Kona movement notes that “At the World Championships for the Ironman Triathlon in Kona, Hawaii, the professional men have 50 qualifying spots and the professional women have only 35.  We are asking you to help stop this unequal allocation by sending a message to the World Triathlon Corporation and its CEO, Andrew Messick.”

And recently in tennis, a tennis tournament directly resigned after suggesting that women tennis players owe their success to their male counterparts.

There is no doubt that the argument of equal pay for female athletes has strong appeal. I’ve watched the women’s World Cup, for example, with the same enthusiasm as I do the men’s World Cup (and written about my love of U.S. Soccer too).  Tennis has, for the most part, adopted the laudable position that tournament payouts should be the same for men and women.

But the lawyer in me recognizes that the legal issues aren’t neat and tidy. We’ve seen it come up in golf where LPGA golfer Stacy Lewis recently argued that LPGA players should be paid the same as their male counterparts on the PGA.

In that case, however, there are arguments that each tour has different endorsement deals, different sponsors and different viewer audiences.

The Equal Pay Act (which may or may not get the soccer players to victory, depending on the legal arguments raised) mandates that that men and women be given equal pay for equal work in the same establishment. The jobs need not be identical, but they must be substantially equal.  Title VII can also be raised; it does not require that the job of the person claiming discrimination be substantially equal to that of a higher paid person of the other sex, but unlike the EPA, Title VII requires proof of intent to discriminate on the basis of sex.

So how does one make a claim under the EPA? Simply stated, by showing that the jobs require substantially equal skill, effort and responsibility, and that are performed under similar working conditions within the same establishment defined as follows (and as noted by the Workplace Fairness site):

  • Skill: measured by factors such as the experience, ability, education, and training required to perform the job.
  • Effort: the amount of physical or mental exertion needed to perform the job.
  • Responsibility: the degree of accountability required in performing the job.
  • Working conditions: encompasses two factors: (1) physical surroundings like temperature, fumes, and ventilation, and (2) hazards.

It is this argument that the soccer players will likely try to advance. But as noted by The New York Times, there are likely to be several arguments that U.S. Soccer will respond with including that the law allows for different payments on factors other than gender:

U.S. Soccer could counter that the players’ pay is collectively bargained, and that the players agreed to all issues, including compensation and working conditions like whether the team must play on artificial turf on not. (The federation and the women’s players’ union are continuing discussions on compensation in a new collective bargaining agreement amid the current action.)

U.S. Soccer also receives substantially higher payouts from FIFA, world soccer’s governing body, for participation in the men’s World Cup. But the women’s complaint seems to take aim at a bigger share of domestic revenue, like sponsorships and television contracts.

Who will win? My guess is that we won’t know because ultimately U.S. Soccer and the soccer players will reach an agreement, perhaps as part of a new bargaining agreement.  But the arguments about pay disparity between male and female athletes and coaches will live on.

With Congress in gridlock, we haven’t seen any federal laws impacting employment law for several years. Instead, we’ve now started to see a lot more action at the state legislative level where proposals to modify everything from family leave to the minimum wage are being passed in, it seems, increasing numbers.

Therefore, what happens in other states is becoming much more important.  For instance, we saw that Connecticut was considering an immigration-related employment bill that was modeled on laws in other states. 

Because of this, and because many employers now have businesses in multiple states, I’ve asked my friend, Courtney Ward-Reichard, a shareholder at Nilan Johnson Lewis in Minneapolis, to share her insights about a pretty broad employment law bill that was just signed into law earlier this week in Minnesota.  While Connecticut already has adopted some of these items, others may be on the horizon, such as lowering the employee threshhold for family leave to 20 or more employees. After all, if one state has passed it, propoants can argue that Connecticut’s passage won’t put us as a competitive disadvantage when compared with similar states. 

In any event, my thanks to Courtney for her insights here.

On May 11, 2014, Minnesota Governor Mark Dayton signed landmark legislation – a group of bills that became known as the Women’s Economic Security Act (“WESA”). WESA will most directly affect employers with operations and employees in Minnesota. But employers in Connecticut and elsewhere should take note: this legislation – or its components – may well serve as a model in other states.

Here are the most significant changes:

• Creates new protected class for familial status: WESA expands the Minnesota Human Rights Act (“MHRA”) by adding familial status as a new protected class. Employers will likely face new state charges and lawsuits alleging discrimination on the basis of this status, and victorious plaintiffs may seek not only damages, but also their attorneys’ fees. This expansion makes Minnesota unusual, as federal law and most states’ laws do not include familial status as a protected class. This change became effective the day after Governor Dayton signed the bill.

• Expands pregnancy and parenting leave: Covered employers (with over 20 employees) must provide up to twelve weeks of unpaid leave to eligible employees for: 1) the birth or adoption of a child; or 2) prenatal care, or incapacity due to pregnancy, childbirth, or related health conditions (for female employees). Employees may take the first type of leave within twelve months of the birth/after the child leaves the hospital. These changes will be effective July 1, 2014, and will affect numerous employers who are not covered by the federal FMLA. Employers will be allowed to require employees to use their sick leave during parental leave, and the leave will also run concurrently with any FMLA leave.

Continue Reading Guest Post: Women’s Economic Security Act May Serve As Model for Other States

Over the last week, two unrelated stories caught my eye.  For employers, they are a reminder that claims of pay inequality based on gender are still something to be concerned about. 

Photo Courtesy Library of Congress c. 1943

The first story is that Governor Malloy announced plans for a new study to examine “factors that contribute to the gender wage gap in Connecticut’s workforce.” 

The study will be run by  new Connecticut Department of Labor Commissioner Sharon Palmer and Department of Economic Development Commissioner Catherine Smith.  The Governor has asked the commissioners to make recommendations on the issue by October 2013.   

I’ve talked about this issue before; there are some who believe that the wage gap is overstated.  But the study will make headlines this year and this renewed focus in Connecticut on the issue should have employers revisiting their own practices.

The second story illustrates the claim in much more real world terms and shows the perils of trying to navigate your way through such claims. 

In Morse v. Pratt & Whitney, decided last week, a federal court — among other issues — denied an employer’s motion for summary judgment on an Title VII unequal pay claim.

Continue Reading Gender Inequality Claims Make Headlines in Case and in New Study

If you should never judge a book by its cover, you can never judge a legislative bill from its title.

After all, you would think that a bill about "Penalties for Violations of Certain Personnel Files Statutes" (H.B. 6185) would actually be a bill about those violations.

While that may have been in the original bill, a Senate amendment to that bill — which passed both chambers yesterday — makes some of the most sweeping changes we have seen in some time to the state’s laws banning employers from discriminating based solely on gender in the amount of compensation paid to employees. (The amendments’ provisions are mainly lifted from Senate Bill 362 (S.B. 362).)

This bill — which now moves on to the Governor for signing — will be effective October 1, 2009 if and when signed.

Summary of Key Provisions

The key provisions of the measure:

  • allow employees to go directly to court to file gender wage claims;
  • expand possible employer defenses against gender wage claims;
  • permit, rather than requires, a court to order awards when an employer is found to violate the law;
  • extend the period to make a claim of discrimination (the statute of limitations) from one to two years following a violation (or in some cases, three years);
  • expand the whistleblower protections to include those who testify or assist in a gender wage proceeding;
  • permit possible compensatory and punitive damages for violations of the whistleblower protections; and

The Office of Legislative Research has a thorough summary here.  Among other provisions that employers may find interesting, the bill also allows employees to ask the court for legal or equitable relief, but the labor commissioner will not have that option. The bill allows employees to seek attorney’s fees and costs (but eliminates the labor commissioner’s ability to seek such fees.) 

Of course, there is still a provision in there about violating the personnel files act. Employers who violate the provisions of that act are subject to a $300 civil penalty for each violation. 

In some ways, the bill is a codification of some of the changes that were made at a federal level under the Ledbetter Fair Pay Act. For example, under this bill, the starting of a statute of limitations period would be relaxed.  It would occur::

when a discriminatory compensation decision or practice is adopted, when an individual is subject to a discriminatory compensation decision or practice, or when an individual is affected by application of a discriminatory compensation decision or practice, and shall be deemed to be a continuing violation each time wages, benefits or other compensation is paid, resulting in whole or in part from such a decision or practice.

What Does This Mean For Employers and What Defenses Are Available?

For employers, the bill is definitely a mixed bag. On the one hand, it greatly expands the type of claim and the time for bringing a claim for employees and adds a great deal more gravitas to the state’s wage discrimination laws. On the other hand, it does provide some additional defenses for employers to use, which, in turn, allows employers to plan their business in a way that is in compliance with the law.

What are those defenses to a claim of wage discrimination? According to the bill, an employer must demonstrate that such differential in pay is made pursuant to "(1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) a differential system based upon a bona fide factor other than sex, such as education, training or experience."

The last category of a "bona fide factor defense" will only apply if the employer demonstrates that the factor  (A) is not based upon or derived from a sex-based differential in compensation, and (B) is job-related and consistent with business necessity.

And even then, the employee can overcome the "bona fide factor defense" if he or she can demonstrate that an alternative employment practice exists that would serve the same business purpose without producing such differential and that the employer has refused to adopt such alternative practice.

I’ll continue reviewing the bill (which was just passed in its current form last night) and will post  details on an upcoming program recapping this bill soon.

Earlier today, President Obama welcomed Lilly Ledbetter to the White House and signed the Lilly Ledbetter Fair Pay Act.  You can find the text of the act here and even leave your comments on it. You can read the President’s remarks here. And you can find the White House blog entry on the subject here.

In signing the bill, the President said:

So signing this bill today is to send a clear message: that making our economy work means making sure it works for everybody; that there are no second-class citizens in our workplaces; and that it’s not just unfair and illegal, it’s bad for business to pay somebody less because of their gender or their age or their race or their ethnicity, religion or disability; and that justice isn’t about some abstract legal theory, or footnote in a casebook. It’s about how our laws affect the daily lives and the daily realities of people: their ability to make a living and care for their families and achieve their goals.

Ultimately, equal pay isn’t just an economic issue for millions of Americans and their families, it’s a question of who we are — and whether we’re truly living up to our fundamental ideals; whether we’ll do our part, as generations before us, to ensure those words put on paper some 200 years ago really mean something — to breathe new life into them with a more enlightened understanding that is appropriate for our time.

I’ve covered the bill extensively in prior posts, which you can find here, but some final remarks on this new law for now are worth mentioning:

The new law, because it would apply to cases still pending that were filed the day before the Court’s ruling, or thereafter, it has the specific effect of overturning the Ledbetter decision. It cannot alter any case that has been finally decided, however. Congress had the authority to overturn the Ledbetter ruling because that was based only on the Court’s reading of a statute, and not a constitutional provision.

  • The bill’s main purpose is to extend statute of limitations on compensation decisions. But the effect of the bill will be to allow for a potential look back on compensation decisions for several years — and perhaps much, longer.

One of the more interesting television shows out there now is the Emmy award-winning  "The Amazing Race". At the start of the show, the host shouts, "Ready, Set, Go!" and off the contestants go on a race around the world places as yet unknown.copyright 2009 Daniel A. Schwartz All Rights Reserved

That, in essence, is what 2009 is shaping up to be in employment law: a race to change things as fast as you can with the final destination (and pitstops) as yet unknown.

This week, for example, two employment-law bills are on the fast-track for passage in the U.S. House, but it’s being done so quickly that you may have a tough time catching up. 

Several Washington, D.C.- based blogs (including the Washington Labor & Employment Wire) are reporting this site that two pay-related bills are on the fast-track for consideration by Congress, perhaps in an effort to get them on to President-Elect Obama’s desk by the time inauguration rolls around.

From the Washington D.C. Employment Law Update:

…House Majority Leader Steny Hoyer (D-Md.) announced that two employment-related bills will reach the House floor later this week. Both the Paycheck Fairness Act (H.R. 1338) and the Lilly Ledbetter Fair Pay Act (H.R. 2831) were introduced and easily passed the House during the last Congress, but stalled in the Senate due primarily to Republican opposition and a presidential veto threat. It is noteworthy that both bills are being sent directly to the House floor instead of being vetted through the committee process….

The Paycheck Fairness Act [version that]… will reach the House floor this week aims to do the following:

  • Amend the Fair Labor Standards Act (FLSA) to allow victims of pay discrimination to potentially recover more remedies than those currently provided in the FLSA

  • Enforce a new concept of “equal pay for comparable work”

  • Prohibit employers from reducing other employees’ wages to achieve pay equity

  • Require employers to disclose job categories and pay scales as needed to enforce the law

  • Prevent employers from relying on the “factor other than sex” affirmative defense in wage discrimination cases; instead, employers must additionally prove that such factor is “job related” and serves a “legitimate business purpose.” An employee could rebut this claim by showing that an “alternative employment practice” exists that could achieve the same business purpose

  • Entitle employees to unlimited punitive and compensatory damages, regardless of whether the wage discrimination was intentional.

You can view some of my earlier posts about the Paycheck Fairness Act starting here.  As I said then, this bill will re-emphasize to employers the importance of documenting pay decisions. 

On the Lilly Ledbetter bill, I summarized it and discussed the issues related to it in posts such as this one.   My comments then are fairly relevant to today as well:

The issue in Ledbetter case was, in many ways, a technical question of how far back an employee should be able to go to challenge past pay practices — in other words, about deadlines and "statute of limitations". The Supreme Court said that the 180-day deadline found in the statute should apply. Should the statute of limitations remain at 180 days? 1 year? 2 years? 5 years? 20 years? I don’t suggest to know what the right answer is. Ultimately, the answer to that question will help shape the Paycheck Fairness Act bill’s final outcome and it should be the one that the politicians focus on.   Employers would certainly like shorter statute of limitations and have good arguments that because supervisors leave, short statute of limitations prevent stale claims from being brought. But employees have decent arguments that a longer statute of limitations should apply because discriminatory pay practices are often learned of only after they occur.
 

For employers, the debate over the Paycheck Fairness Act is one worth paying attention to because the real-world consequence of the bill’s passage (whether now or next year) will be to increase the importance of documenting pay practices and to give employers another reason to preserve such documents for future litigation.

Hopefully, as the bill progresses, we’ll see more debate on the pros and cons on having longer deadlines to file suits.

With the bills on the fast-track, i doubt we’ll see much substantive debate on the bills, which is unfortunate. In the election, the concept of "change" was thrown about. This week is the first real sign that, for employment law issues, change is here.