A recent decision from the Department of Labor’s Administrative Review Board serves as a warning to federal agencies against overreaching in their efforts to identify alleged employment discrimination. It also serves to highlight the heavy burden that plaintiffs—whether government agencies or private litigants—must carry in cases alleging a pattern or practice of disparate treatment.
On May 18, 2016 the EEOC held a commission meeting to address the topic of promoting diverse and inclusive workplaces in the tech sector. Orrick’s Erin Connell was asked to testify at the meeting and provide examples of the types of diversity initiatives tech companies are using. Watch our blog for updates on workplace diversity and new developments in the equal pay space as they continue to unfold. Included below is the text of Erin’s testimony before the EEOC:
Rideshare companies Lyft and Uber announced on May 9 that they were no longer offering their services in Austin, Texas, after voters there rejected a proposed ordinance that would have eliminated fingerprint-based background checks for drivers. In a Saturday election, 56 percent of Austin voters, despite what some have called confusing ballot language, rejected the proposed ordinance, known as “Proposition 1,” which was supported by the companies.
The prognostication efforts are going into high gear as employers seek to forecast and prepare where the Department of Labor may land on its final overtime rules. As with all rules in the post-comment phase, government officials have not given any indication on when the final rules will be published (and become effective) or what they will contain. Our insight is the final rule will be published ahead of schedule before the July regulatory agenda date, perhaps as soon as later this month. The Congressional Review Act deadlines (described here) strongly indicate that the DOL will seek to avoid the prospect of any effective congressional action on the final rules. As to the final rule’s content, we believe that the Office of Management and Budget and DOL are taking into account the political winds and other considerations before making a final decision. Once published, however, the DOL can set the effective dates as early as 60 days which would give employers a very difficult compliance burden.
The Department of Labor’s Administrative Review Board (“ARB”) recently upheld an order finding a semiconductor company had constructively discharged a manager who complained the company’s bonus plan violated state wage and hour laws, and in doing so, broadly interpreted the protections offered under the Sarbanes-Oxley Act (“SOX” or “Act”).
In an issue of first impression, the California Court of Appeals held that employers have a duty under California’s Fair Employment and Housing Act (FEHA) to provide reasonable accommodations to an applicant or employee who is associated with a disabled person, even if the employee is not disabled. Castro-Ramirez v. Dependable Highway Express, Inc. No. B261165, 2016 Cal. App. LEXIS 255 (Cal. Ct. App. April 4, 2016). This holding confirms that FEHA provides broader protections for employees associated with a disabled person than the federal Americans with Disabilities Act (ADA), which does not contain the same requirement.
Staying true to form, earlier this month San Francisco passed the nation’s first fully-paid parental leave law known as the Paid Parental Leave for Bonding with New Child Ordinance (“Paid Parental Leave Ordinance”). California’s Paid Family Leave (“PFL”) program currently provides six weeks of partially-paid leave at 55 percent of an employee’s pay, up to $1,129 per week. The Paid Parental Leave Ordinance mandates that employers pay the difference up to a weekly maximum, meaning most employees will receive six weeks of bonding leave at full pay. Unlike PFL, which is funded through employee contributions to state disability insurance, benefits under the Paid Parental Leave Ordinance are employer-funded.
As we noted in last week’s coverage of Equal Pay Day’s twentieth anniversary, the issue of equal pay has been drawing increasing attention from regulators, legislators and plaintiffs’ attorneys nationwide. Of particular note, a report issued in January 2016 by the National Women’s Law Center highlighted the unprecedented level of new equal pay legislation at the state level. Leading this wave of activity, both New York’s Achieve Pay Equity law and California’s Fair Pay Act law have in place the broadest protections for employees seeking to bring gender-based equal pay claims. Additionally, a number of other states have adopted piecemeal legislation addressing equal pay, such as prohibiting employer retaliation based on employee discussions of wages (Connecticut, New Hampshire, Oregon), holding state contractors responsible for certifying their equal pay compliance (Delaware, Minnesota, Oregon), increasing civil penalties for equal pay violations (Illinois), or requiring employers to maintain wage records in anticipation of potential state government inquiries (North Dakota).
Today marks the twentieth anniversary of “Equal Pay Day,” which the National Committee on Pay Equity launched as a public awareness event in 1996 to symbolize how far into the year women must work to earn what men earned in the previous year. In more than 50 years since enactment of the federal Equal Pay Act (“EPA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”), women have made significant progress in the workplace and now make up roughly half of the American workforce. However, women working full time still earn, on average, 79 cents for every dollar earned by men, and this number has barely moved in over a decade. That said, it is still not clear that employer bias is to blame for the gap that remains. Indeed, the pay gap measures only the difference in average earnings between all men and all women; it is not a proxy for pay bias—i.e., the failure to pay women equal pay for equal work. Eliminating pay bias is important, but focusing heavily on perceived employer bias obscures a much more complex web of factors contributing to the problem of pay differences between men and women.
Three months after the California Fair Pay Act took effect on January 1, 2016, the California Division of Labor Standards Enforcement (“DLSE”) has issued answers to FAQs about the new law, which by all counts is the most employee-friendly equal pay law in the nation. But for California employers who anxiously have been awaiting official guidance on the Act’s many new terms and standards, the FAQs provide little satisfaction. Rather, they focus more on informing employees on how to bring a claim. Nor has the DLSE otherwise spoken publicly about how it plans to enforce the new law; instead, the agency appears to be taking its time and exercising caution as it potentially sets the stage for the rest of the nation.