Pennsylvania Labor and Employment Blog : Pennsylvania Labor and Employment Lawyer & Attorney : McNees Wallace & Nurick Law Firm : Human Resources, Workplace and Business Law : Harrisburg, Lancaster, Allentown, Lehigh

Last year a survey called "Super Bowl Fever Sidelines Employees on Monday Morning" reported that 1.5 million adults may call in sick the day after the big game.  The solution to the productivity loss is so obvious.

Why isn't the Super Bowl on Saturday?  It has spawned websites and a great media debate. There is even a movement for a national holiday replacing President's Day.  If President Obama (a Steelers Fan) wants to throw employers a bone,  then he should focus on this problem. 

Go Steelers!

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President Obama signed into law the Ledbetter Fair Pay Act nullifying the U.S. Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Company. Previous posts on the content and effect of the law are as follows:

Ledbetter Fair Pay Act passed by Senate and awaiting Obama Signature

Bad News: Ledbetter Fair Pay Act and Paycheck Fairness Act Pass the House.

Record Retention Nightmare Created by Ledbetter Fair Pay Act

An employer's first concern should be the revival of claims otherwise thought extinguished under the Ledbetter decision. The law is retroactive to overrule the Supreme Court standard for assessing the timeliness of wage discrimination claims. A wage-based discrimination claim in Pennsylvania can now be filed within 300 days of the last paycheck affected by the discriminatory pay action.

An employer's next focus should be on creating a pay and evaluation system that preserves evidence supporting the nondiscriminatory basis of the decisions. The system must capture both witnesses' recollections and records associated with the decisions for all similarly situated employees.

The difficulty in defending these "old" claims lies in documenting both the decision made relative to the employee bringing the claim and the treatment of comparable employees. The legal analysis of a discrimination claim involves a comparison of the compensation paid to a member of a protected class as compared with those outside the protected class. If a compensation disparity is shown, the employer must demonstrate a legitimate nondiscriminatory reason for the difference in compensation. Once demonstrated by the employer, the employee may show that the employers reason is a pretext for discrimination. Much of this analysis will change if the Paycheck Fairness Act also becomes law.

The EEOC has a road make for its analysis of compensation discrimination claims under its Compliance Manual. The types of evidence the EEOC collects and evaluates in assessing a claim includes the following:

• Initially the EEOC determines if a wage differential exists by evaluating documents including the following:
  • Organization charts and other documents which reflect the relative position of the charging party in comparison to other employees, including written detailed job descriptions;
  • Written descriptions of the respondent's system for compensating employees -- including collective bargaining agreements; entry level wage rates or salaries; any policies or practices with regard to periodic increases, merit and other bonus compensation plans; and the respondent's reasons for its pay practices; and
  • Job evaluation studies, reports, or other analyses made by or for the employer with respect to its method of compensation and pay rates.
• If a compensation differential(s) exists, the employer should be asked to produce a non-discriminatory reason for the differential. If a an employer leaves the pay disparity unexplained, or provides an explanation that is "too vague, is internally inconsistent, or is facially not credible," the investigator should find "cause." If the employer does provide a nondiscriminatory reason, an inquiry should be made into whether it satisfactorily explains the pay differential.
• The EEOC requests information explaining the pay decisions of comparable or similarly situated employees. The EEOC may also request pay information for similarly situated employees to evaluate a disparate impact case based on a statistical analysis of compensation decisions and treatment.

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The Chamber of Commerce reports another delay in the implementation of Federal Acquisition Regulations that require mandatory use of the E-verify system by government contractors. An agreement was reached in the pending litigation for the purpose of allowing the Obama Administration an opportunity to review pending regulatory actions left over from the Bush Administration.  The new effective date is May 21, 2009.  Our prior post outlines the requirements:  E-Verify Final Regulations Issued Requiring Government Contractors and Subcontractors to Verify Employment for New and Existing Employees who Perform Contract Work

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The US Citizenship and Immigration Service ("USCIS") has revised the Form I-9 and acceptable documents issuing the following summary:

The interim final rule narrows the list of acceptable identity documents and further specifies that expired documents are not considered acceptable forms of identification. An expansive document list makes it more difficult for employers to verify valid and acceptable forms and single out false documents compromising the effectiveness and security of the Form I-9 process.

Employers must complete a Form I-9 for all newly hired employees to verify their identity and authorization to work in the United States. The list of approved documents that employees can present to verify their identity and employment authorization is divided into three sections: List A documents verify identity and employment authorization, List B documents verify identity only, and List C documents verify employment authorization only. 

The rule eliminates Forms I-688, I-688A, and I-688B (Temporary Resident Card and older versions of the Employment Authorization Card/Document) from List A.  USCIS no longer issues these cards, and all that were in circulation have expired.  The rule also adds to List A of the Form I-9 foreign passports containing specially-marked machine-readable visas and documentation for certain citizens of the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI).  The rule makes other, technical changes to update the list of acceptable documents.  The revised Form I-9 includes additional changes, such as revisions to the employee attestation section, and the addition of the new U.S. Passport Card to List A.

The revised I-9 Form can be downloaded from the US Citizenship and Immigration Service website. Revisions to instructions and the Handbook for Employers are pending.

The Employment Law Post also highlights these changes.

UPDATE:  Don't use Revised I-9 Form:  USCIS Delays Rule Changing List of Documents Acceptable to Verify Employment Eligibility until April 3, 2009

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In its decision in Crawford v. Metropolitan Government of Nashville and Davidson City, the United States Supreme Court considered the scope of Title VII protections from retaliation for employees who act as witnesses in an employer's internal investigation into harassment. The Court held that an employee's involvement in the employer's internal investigation constituted opposition to unlawful employment practices when she responded to her employer's questions in a manner disapproving of accused harasser's sexually obnoxious behavior toward her. The Court's decision unfortunately does not create a bright line standard for employers defining the scope of an employee's involvement in an internal investigation which can trigger protections from retaliation. Employers should tread very carefully in this area.

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The Senate passed the Lilly Ledbetter Fair Pay Act of 2009 by a vote of 61 to 36 with both Pennsylvania Senators supporting the legislation.   President Obama has previously stated he will sign the law.

The Ledbetter Fair Pay Act redefines the "accrual" of a compensation discrimination claim as follows:

For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

Violations of the law entitle employees to recover compensatory and punitive damages including recovery of back pay for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.

The law is retroactive to the May 28, 2007 (the date of the Supreme Court's Ledbetter decision) effectively reviving all claims that are pending or after that date.

Forces employers to modify their pay practices and evaluation procedures including the following:

• Better justify and document their compensation decisions.
• Review promotion procedures which may fall under the law because of the attendant compensation adjustment.
• Create an institutional memory that captures the basis for compensation and promotion decisions.
• Design a record retention system that allows for the defense of claims.

Next on the Senate Agenda will likely be the Paycheck Fairness Act (S. 182).

Thanks to the Connecticut Employment Law Blog for insights.

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The theme of "change" resonates through today's carnival posts. Here are the contributions with some great advice and observations about what is confronting Human Resource Professionals for 2009 and beyond:

Ann Bares at Compensation Force posts on Best to Get Base Pay in Order Before Implementing Employee Incentives. She recognizes that employee incentives are a powerful tool and a very attractive option, particularly during difficult economic times.  She makes the case here, though, that it is important for employers to “get their base pay house in order before embarking on employee incentives.”

Dan McCarthy of Great Leadership is advertising for leaders in his post on Help Wanted: Great Leader. No Technical Experience Needed? He asks Who would you rather have for a manager: A: Someone who has great leadership skills, but knows little about your specific work or B: Someone with tons of experience and skill in your work, but with only so-so leadership skills?

Rowan Manahan of Fortify your Oasis submits a piece on Phil Schiller's keynote – how not to confound expectations. He advocates rehearsing and bringing all the elements of a presentation together so that it will be above average - using Phil Schiller's recent keynote on behalf of Apple as a case study.

Wally Bock of Three Star Leadership is doing The CEO Shuffle. He says that there's lots of news about CEOs this week. But it could be that in the best companies, star CEOs aren't unnecessary.

Steve Roessler of All Things Workplace submits his post on "A" Players, Layoffs, and Missing Data. Steve believes that when organizations try to downsize in tough times--but haven't done their performance documentation diligently--they can find themselves staffed for the future with high-seniority, poor performers.

Alice Snell of Taleo Blog - Talent Management Solutions weighs in with a digest of predictions entitled 2009: What Will Happen? She predicts that 2009 will be a time to retain and motivate existing talent.

Mark Vickers of i4cp also submits some “Forecasts for the 2009 Workplace” based on some survey data where there is "not a lot of optimism."

Chris Young of Maximizing Possibility states that in 2009, as always, and now more than ever will be about employee job performance - tangible contribution - value-creation in his post Your Job is Value Creation.

Susan Heathfield's Human Resource Blog at About.com submits a post on No Surprises in which Susan discusses how much autonomy should a team have in implementing its own ideas.

Chris Ferdinandi of Manager's Sandbox asks What Kind of HR Pro are You?  Chris believes that working in human resources, there are two main things you should be focused on: Recruiting great people, and inspiring them to do amazing work.

Shauna Moerke of HR Minion identifies a common problem for HR Pros in her post I do not think you said what I think you mean.   She likens HR to a foreign language because there so many words you needed to learn first before you could even start solving problems.

Gautam Ghosh of White Spaces advocates Guard your Job during Recession. During these times of economic slowdown here are 9 things employees can do to guard their job – from taking on more responsibility to keep practicing the 5 skills for career success.

John Agno of Coaching Tip: The Leadership Blog recognizes that "AD-Triple A" Problem for U.S. Employers. He points out some strategies for complying with the law from a coaching perspective.

Michael Haberman of HR Observations posts about Lessons for HR in the Geithner Confirmation Hearings.  Mike points out that the "honest mistakes" made around worker classification can arise in the business setting.

Frank Mulligan of Talent in China says Hold Those Salary Increases! He thinks that the challenge that many companies in China have right now is that they must maintain their skills base for when orders start to come in again, and at the same time cut costs heavily. Selling this to staff is difficult.

Nina Simosko of Nina Nets it Out submits an entry called Leadership’s All About Academics…No It’s Experience…No It’s Ability where she discusses the notion that some leadership qualities can be obtained via academics [i.e. learned], some are achieved through experience and some are purely innate abilities.

Thanks for all of your submissions. The February 4 Carnival will be hosted by Wally Bock at Three Star Leadership.

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Employers that rely on a web-based application and recruiting processes should examine their websites for compliance with the ADA’s employment provisions which require accessibility and accommodation in the hiring process.   A recent OFCCP Directive sets forth the agency's policy on review of employer websites where applications are solicited:

Effective immediately, all compliance evaluations shall include a review of the contractor's online application systems to ensure that the contractor is providing equal opportunity to qualified individuals with disabilities and disabled veterans. The review should include whether the contractor is providing reasonable accommodation, when requested, unless such accommodation would cause an undue hardship. In this directive, the term "online system" shall include, but not be limited to, all electronic or web-based systems that the contractor uses in all of its personnel activities.

Website accessibility is a growing issue as we discussed in a prior post highlighting a lawsuit under the ADA against Target Corporation's commerce site: Business Websites Face Americans with Disabilities Act Accommodations Claims. Given the OFCCP's initiatives on systemic discrimination, this area is ripe for compliance activity.

The OFCCP has recommended the following action steps in a recent webinar:

• Prominently display a notice outlining your reasonable accommodation process, & provide timely & effective accommodation.
• If kiosks are used, ensure that they are physically accessible.
• Allow people who cannot use the online system because of a disability to apply in an alternate way.
• Consider designing online systems using universal design techniques & interoperable technology to:
  • Reach out to and receive applications from qualified applicants with disabilities, and
  • Minimize the need for individual reasonable accommodations.

Resources for evaluating accessibility of system including the interoperability with assistive technologies can be found at Accessible Systems Racing League. The OFCCP's Power Point Training Program entitled Accessible Online Applications Systems and Tools for Achieving Them is also a good resource.

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The Pennsylvania Labor and Employment Blog is pleased to host the Carnival of HR which will be held on January 21, 2009.  The Carnival of HR, started by the Evil HR Lady, features recent posts from the best of the HR and management blogging community. You can participate in two ways:

1. Read: Read the posts in the latest carnivals when they come out every two weeks.

2. Submit a post: Submit your own post on HR or management issues. Posts are usually due a few days before the carnival publishing date, and you can find a complete list of hosts and dates here. (Rules: One post per blogger, and posts should be something you've written in the last couple of weeks.) Please e-mail a link to your post together with a brief description to mmoore@mwn.com. The usual rules apply:  one post per contributor; human resources related post appearing in the last 2-3 weeks.  Please submit your post by January 19, 2009 @ 8:00 p.m. EST.

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Congress has passed The Lilly Ledbetter Fair Pay Act of 2009 (H.R. 11) and The Paycheck Fairness Act (H.R. 12). Anaylsis of the new legislation to come.

The Ledbetter Fair Pay Act is discussed in a prior post on Record Retention Nightmare Created by Ledbetter Fair Pay Act .  The Paycheck Fairness Act changes the burden of proof in gender based pay claims requiring the employer to affirmatively demonstrate that any pay differential is not based on sex. Employers who cannot meet this burden face unlimited compensatory and punitive damages. The EEOC would be required to collect employer payroll information based on sex, race, and national origin thereby targeting its enforcement activities. The Bill also changed rules on class actions automatically including employees in such claims unless they specifically opt out.  PFA subjects employers to wage related class actions with unlimited damages and makes it easier for employees to prove such claims.

Ann Bares analyzes the impact of the new law from a compensation perspective in her post: Dear Legislators: A Missing Link to Paycheck Fairness?

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SHRM is reporting the delay of E-verify regulations until February 20, 2009. There is no such report on the Homeland Security or Dept of Justice websites. Stay tuned.  A previous post discusses the regulations: E-Verify Final Regulations Issued Requiring Government Contractors and Subcontractors to Verify Employment for New and Existing Employees who Perform Contract Work

UPDATE: Mandatory use of E-Verify for Government Contractors delayed again to May 21, 2009

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The ADAAA was effective January 1, 2009 requiring employers to focus their approach to disability accommodation. The Job Accommodation Network (JAN) of the Office of Disability Employment Policy recently published a compliance resource identifying four Practical Tips which can be expanded upon as follows:

Review Job Descriptions, Qualification Standards and Accommodation Procedures

Developing job descriptions is a daunting task for employer and many don't know where to start. JAN has a good resource explaining the role and function of job descriptions. The resource also gives some basic parameters on what should be included.

Job descriptions provide a written record of the qualification standards and essential functions of a position for the purpose of assessing whether and employee or applicant is "qualified" and for evaluating reasonable accommodations or establishing undue hardship. From a legal perspective, a well-written job description is essential to defending an ADA claim.

Written accommodation procedures promote communication and uniformity. The federal government has developed a lengthy process that may be a reference for employers developing a procedure. The government's procedures are extremely detailed and employers should be careful to develop a process which they can follow or they risk claims based on procedural missteps.

Focus Job Actions of Performance and Conduct

The ADAAA refocuses compliance from determining whether a disability exists to evaluating reasonable accommodations. Employers need to assess what an employee (i) can and cannot do in light of the job's essential functions or (ii) has or hasn't done under its work rules. The EEOC has issued Guidance on Applying Performance and Conduct Standards to Employees with Disabilities.

Train Frontline Supervisors and Managers

Many disability compliance problems start with a frontline supervisor's reaction to a performance problem. Dealing with the employee's disability, managing coworker reactions, and keeping medical information confidential are only some of the issues which confront managers. Comments made by supervisors can create claims based on retaliation or being "regarded as" disabled.

Document Actions and Decisions

A written record of an employers actions and decisions has many benefits in terms of both clear communication with employees and defense of ADA claims. The transitory nature of many workplaces make tangible records more important than ever to establish an institutional memory of important events.

Thanks to the Delaware Employment Law Blog for the pointing out the JAN resources.

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Ledbetter Fair Pay Act (H.R. 2831/ S. 1843) is on the fast track with full support of the Obama Administration. LFPA overturns the Supreme Court’s decision in Ledbetter v. Goodyear Tire and Rubber Co. effectively eliminating the 180 or 300-day statute of limitations for filing a wage-related discrimination claim. The Bill allows family members and others affected by discrimination to file claims and reinstitutes the Paycheck Accrual Rule for determining when a claim arises. It also allows claims based on paychecks and annuity payments which would permit retirees to bring claims.

Ms. Leddbetter's discriminatory pay claims originated from pay raises allegedly denied her based on supervisor's discriminatory evaluations of her performance conducted over a period between 1979 and 1998. The U.S. Supreme Court held that the pay setting was a discrete act triggering the180 day limitations period for filing a discrimination claim, therefore a timely discrimination claim must be based on acts of discrimination occurring within the 180 day period. Leddbetter argued that“[E]ach paycheck that offers a woman less pay than a similarly situated man because of her sex is a separate violation of Title VII with its own limitations period, regardless of whether the paycheck simply implements a prior discriminatory decision made outside the limitations period”.

The effect of the argument is to call into question decisions of supervisors made almost 20 years before the employer received notice of the alleged discrimination. Leddbetter counters that she had no way of knowing about her discriminatory treatment because of the confidentiality of the performance reviews and salary adjustments

In its Ledbetter decision, the Supreme Court enunciated a classic application of the statute of limitations governing the time period for bringing legal claims:

Statutes of limitations, which "are found and approved in all systems of enlightened jurisprudence, represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time, and that "the right to be free of stale claims in time comes to prevail over the right to prosecute them. These enactments are statutes of repose; and although affording plaintiffs what the legislature deems a reasonable time to present their claims, they protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise. (emphasis added). 

The implication's are huge for employers in terms of faulty memories, missing witnesses, and mountains of documents. Defense of decades old discrimination claims will necessitate the retention of more documents for longer time periods. The expense associated with storage and production of documents (whether paper or electronic) may be staggering. Imagine a Request for Production of Documents or subpoena that demands access to 20 or 30 years of employer records associated with the evaluations and salary adjustments for an employee (or retiree) claiming pay discrimination. Add in all of the employee's peer comparators who were similarly situated over the same time period for a truly nightmarish perspective. Now the rationale for the statute of limitations becomes clearer.

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