Twitter ituneslogo emailicon

Nov 072012

image courtesy of CNN

The votes are in, and the Obama Administration has won a second term. Now that the election is over, we can begin to more forward. But what does forward look like?

To understand where we’re going, we need to know where we’ve been. Daniel Schwartz’s post “A Look Back at Obama’s (First) Four Years and Employment Law” provides a great summary of where we’ve been. Dan concludes that “with the notable exception of the NLRB, there really haven’t been a lot of changes to employment laws for the last four years.”

I agree with Dan – we saw the Lilly Ledbetter Fair Pay Act, new guidance from the EEOC on the use of criminal histories and credit checks, and federal protections for nursing mothers. Not the sweeping changes that some had anticipated.

But what will the next four years hold? I think there’s the potential for more significant change in the employment law and regulatory climate. Here are the five issues I’m watching:

  1. The Paycheck Fairness Act –  the gender pay gap was a priority issue during the last term, and will continue to be a priority. As a result of education and outreach campaigns by the Department of Labor, the public is more sensitive to this issue than ever before. The Paycheck Fairness Act still has significant support, and I think it will be reintroduced into Congress in the near future (most likely in April to coincide with Equal Pay Day). The question is, with a Republican-controlled House, will the Paycheck Fairness Act survive?
  2. OFCCP Compensation Data Collection Tool – there’s a lot about this that still needs to be hashed out and thought through, and it’s going to take time. OFCCP has a lot on its proposed regulatory plate right now, and it’s not clear whether four years will be enough time to finalize the Tool in light of everything else the Agency is working on and trying to enact.
  3. Disability Employment – also on the OFCCP’s agenda is a proposed utilization goal of 7% for individuals with disabilities. As with the Data Collection Tool, there are still a lot of loose ends here. A lack of reliable data regarding the employment of individuals with disabilities, employee’s reluctance to self-identify as an individual with a disability, and the skepticism of whether the goal will evolve into a quota are just three of the concerns here.
  4. Adverse Impact in Hiring – we’ve seen a great deal of interest from the EEOC on how the use of criminal histories, credit reports, and current employment status affect the hiring of women and racial minorities. The EEOC has issued guidance on the first two, and there was a bill introduced regarding discrimination against unemployed job applicants. As the nation struggles to get its people back to work, I think it’s likely we’ll see even more action on the adverse impact front. What protected groups (women, minorities, older individuals, LGBT, etc.) and what form(s) this will take is open for debate.
  5. FLSA / Wage and Hour – let’s face it, we have a staggering national debt. This, combined with the fact that nearly every employer – no matter how diligent – is exposed to wage and hour mistakes, is seen by some as an easy source of tax revenue for the IRS and penalty income for the Wage and Hour Division. Independent contractor misclasification, exempt / non-exempt classification, and other violations have been – and will remain – a big concern for employers.
May 212012

Can you fire an employee for flaming a co-worker on Facebook? Do you need a formal policy for Pinterest? Are you at risk for litigation over LinkedIn?

Social media in the workplace raises a lot of questions, and because social media is ever-changing, it can be hard to keep up. The good news is that there’s help available. Think Before You Click: Strategies for Managing Social Media in the Workplace, edited by Jonathan Hyman, is a comprehensive resource covering a variety of issues in this cutting-edge area of employment law.

In this week’s episode of The Proactive Employer, we’re joined by Jonathan Hyman and one of the contributing authors, Molly DiBianca. We’ll be fielding questions and comments from listeners, and Jon and Molly will be sharing tips on formal social media policies, offering suggestions on how to ensure your employees are using social media safely, and talking about how to be smart about social media in the workplace.

This show will air live on Thursday, May 24th at 3 PM Eastern / 12 Noon Pacific on the VoiceAmerica Business Channel.

Tweet your questions using the hashtag #TPE or call in at 1-866-472-5790 to talk to our guests. The show will be available for on-demand listening at The Proactive Employer website, on the VoiceAmerica Business Channel and via iTunes following the broadcast.




Apr 182012

Do Americans inherently prefer whites to blacks, even if they’re unaware they do?

That’s the theory of discrimination that was advanced in a lawsuit claiming the Iowa state government discriminated against black job applicants and employees in hiring and promotion decisions.

Considered to be the largest of its kind against a state civil service system, the lawsuit claimed that since 2003 as many as 6,000 African American individuals were not hired or promoted as a result of discrimination. The plaintiffs were seeking millions in lost wages, as well as court-ordered changes to Iowa state’s hiring and promotion practices.

On Tuesdsay, April 17th, District Judge Robert Blink said that plaintiffs failed to prove their “unique legal theory”. Thomas Newkirk, lead plaintiffs’ attorney, promised to appeal the decision.

The “implicit bias” theory of discrimination is gaining interest among employment attorneys, and we may see more of these kinds of cases in the future.

In this week’s installment of The Proactive Employer, we’ll talk about this new theory of discrimination, how it relates to conventional theories, the class-action lawsuit that claimed implicit bias, and what the judge had to say on the issue. The installment will air on Friday, April 20th at 8:30 AM Eastern on BlogTalkRadio and will be available for on-demand listening at The Proactive Employer website, on mobile devices via BluBrry and via iTunes following the broadcast.

Jan 102012

I’ve added three new webinars to my Spring 2012 schedule!

The 90-minute webinars are hosted and sponsored by ComplianceOnline. Use the links below to learn more about the webinars and to register.

Avoiding Discrimination When Recruiting With Social Media Tools

February 14, 2012 1:00- 2:30 PM Eastern

Areas covered include:

  • Conventional methods of job search and recruiting
  • The advantages of using social media for recruiting
  • Kinds of candidate information available via social networking
  • Which pieces of information are prohibited by anti-discrimination laws
  • Legal issues raised by recruiting with social media
  • The theory of disparate treatment and how it can manifest when recruiting with social media
  • Mitigating the risk of disparate treatment through the use of a formal policy regarding the use of social media in recruiting
  • The theory of disparate impact and how it can manifest when recruiting with social media
  • Demographic charateristics of the typical social media user versus the demographics of the civilian labor force
  • The dangers of relying exclusively on social media for all recruiting efforts
  • Incorporation of social media into a comprehensive recruiting strategy

Managing the Risk of Discrimination Litigation with a Compensation Review

March 2, 2012 1:00 – 2:30 PM Eastern

Areas covered include:

  • Recent changes in compensation regulation
  • Proposed changes in compensation regulation
  • Compensation challenges presented by the evolving regulatory environment
  • The importance of involving legal counsel in the compensation review process
  • Identification of the goals of the compensation review
  • Planning the compensation review
  • Types of pay that can be studied via a compensation review
  • Construction of similarly situated employee groupings
  • Identification of the determinants of compensation
  • Compensation data collection, assembly and cleaning
  • Common compensation data pitfalls
  • The use of multiple regression analysis to examine compensation for internal equity
  • Evaluation of analysis results in terms of statistical significance, practical significance, sample size and goodness of fit of the model
  • Follow up investigations of analysis results
  • Adjustment of compensation based on analysis results
  • The importance of compensation decision documentation

The HR Practitioner’s Guide to Adverse Impact Analysis

March 27, 2012 1:00 – 2:30 PM Eastern

Areas covered include:

  • Why adverse impact is a problem for employers and how conventional training fails
  • The theory of adverse impact and how it differs from intentional discrimination
  • Where in an organization adverse impact typically occurrs
  • Common sources of adverse impact
  • The Four-Fifths Rule and its disadvantages
  • Basic statistical inference and statistical significance
  • Foundation of comparative statistical analysis
  • Calculation and evaluation of surplus and shortfall protected group selections
  • Criteria validation – job-relatedness and business necessity
  • The importance of properly defining the study population
  • Interpretation of analysis results: statistical significance, practical significance and sample size
  • Statistical tools typically used in adverse impact analysis
  • The limitations of statistics in addressing adverse impact