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NLRB REVERTS TO FORMER STANDARD ON USE OF EMPLOYER EMAIL SYSTEMS

NLRB Email

Shortly before Christmas, the National Labor Relations Board re-established the right of an employer to restrict employee use of its email systems to business use only, if it does so on a nondiscriminatory basisThe new decision overrules the standard set in the 2014 Purple Communications, Inc. case and returns to the standard set in the 2007 Register Guard case.

At issue is when employers can restrict the use of their e-mail and other information technology (IT) systems and when doing so interferes with employee rights guaranteed in Section 7 of the National Labor Relations Act (NLRA).  In Caesars Entertainment d/b/a/ Rio All-Suites Hotel and Casino, the Board overruled the controversial case of Purple Communications, Inc., and held that employees do not have a statutory right to use employers’ email and other information-technology (IT) systems to engage in non-work-related communications, including Section 7 protected, concerted or union activity.

In Purple Communications, the Board held that employees who have been given access to their employer’s email system for work-related purposes have a presumptive right to use that system, on nonworking time, for communications protected by Section 7.  But the new decisions change the standard, giving more weight to employers’ property rights that the previous decision.  The Board reestablished that employers have the right to restrict the use of their equipment, including their email and other IT systems to business and work-related use, provided that in doing so, they do not discriminate against the union or other protected concerted communications.  Recognizing that employees must have adequate avenues to engage in communications protected by Section 7 of the NLRA, the Board’s decision creates an exception for circumstances where the use of employer-provided email is the only reasonable means for employees to communicate with one another on non-working time during the workday.

The Caesars Entertainment decisions reaffirm a long line of decisions holding that the NLRA generally doesn’t restrict an employer’s right to control the use of its equipment.  The National Labor Relations Board’s (NLRB) decision to allow employers more leeway in restricting the use of their email and other communication systems for union organizing is just the latest decision reversing standards set by the Obama-era Board.   If your employee handbook or work rules were revised in 2016 or after to comply with Purple Communications, you may wish to reconsider returning to a business-use-only position in 2020.

Guest Blog Editor:  Spognardi Baiocchi LLP, is a law firm dedicated to partnering with companies of all sizes to find solutions for labor, employment, human resources, and general business needs.  www.psb-attorneys.com.

WageWatch offers accurate, up-to-date benefit surveys, salary surveys and pay practice data that will allow you to stay current.  This information is highly beneficial in creating the best salary and benefits packages that meet or rival the industry standards.  For more information on our services, please call WageWatch at 888-330-9243 or contact us online.

Posted in Regulatory & Legal Updates on January 22nd, 2020 · Comments Off on NLRB REVERTS TO FORMER STANDARD ON USE OF EMPLOYER EMAIL SYSTEMS

NLRB MODIFIES “QUICKIE” UNION REPRESENTATION RULES

On December 13, 2019, the Board issued a final rule amending its election procedures.  The NLRB uses these procedures to determine whether employees are unionized.  The new amendments extend deadlines and add steps to ensure certain disputes are resolved before employees vote.  Chairman John F. Ring announced, “These are common-sense changes to ensure expeditious elections that are fair and efficient.” The new rules provide:

  • The rule amendments allow more time for employers to prepare for the pre-election hearing.  The new rule extends the time for holding a pre-election hearing from eight calendar days to 14 business days after the petition is filed.  This allows the employer for a longer period before the opening of the hearing than is currently the case.   It also allows the parties and the Board more time to try to resolve issues without a hearing, rather than litigating issues that might have been resolved through negotiation and agreement.
  • The employer will now be required to post and distribute the Notice of Petition for Election within five business days after service of the notice of hearing.  The prior rules required posting and distribution within two business days.  The additional time will permit employers to balance this requirement with other obligations imposed on them by the filing of a petition and guarantee that employees have the benefit of the Notice of Petition for Election for a longer period before the opening of the hearing than is currently the case.
  • The new rule requires unions to respond to the employer’s position statement.  Previously, the entire burden leading up to a pre-election hearing rested on the employer, including the filing of a position statement, or risk waiving the issues at the hearing.  Under the new rule, some of the burdens are shifted to the union.  The union is now required to file a response to the employer’s position statement, or risk having their petition dismissed or the employer’s position on bargaining unit issues accepted by the Region.
  • The new rule allows employers to litigate who are supervisors and who is included in the bargaining unit before the election.  Employers will once again know who is eligible to vote in the election and customize their communication to those employees who will be voting.  Employers will also know in advance who its supervisors and front-line management are during the critical campaign period and who its union-free communications team is.
  • The new rules provide employers with more time to conduct a union-free campaign before the election.  The new rule directs Board officials to set elections no fewer than 20 days after approval of consent election agreement or order and direction of election. This change will come close to returning the pre-election timeline to the pre-expedited election rules average.

Guest Blog Editor:  Spognardi Baiocchi LLP, is a law firm dedicated to partnering with companies of all sizes to find solutions for labor, employment, human resources, and general business needs.  www.psb-attorneys.com.

WageWatch offers accurate, up-to-date benefit surveys, salary surveys and pay practice data that will allow you to stay current.  This information is highly beneficial in creating the best salary and benefits packages that meet or rival the industry standards.  For more information on our services, please call WageWatch at 888-330-9243 or contact us online.

Posted in Regulatory & Legal Updates on January 22nd, 2020 · Comments Off on NLRB MODIFIES “QUICKIE” UNION REPRESENTATION RULES

WHITE COLLAR THRESHOLD CHANGES ON JAN 1, 2020

White Collar

On September 24, the U.S. Department of Labor’s final rule released the final rules increasing the minimum salary level for the Fair Labor Standards Act (FLSA) “white collar” exemptions from $455 to $684 per week.   Effective January 1, 2020:

  • The salary threshold for “white-collar” raises to $684 a week or $35,568 (up from $455 a week or $23,660).
  • For highly compensated employees (HCEs), it raises the annual compensation to $107,432 (up from $100,000 per year).
  • The rule allows employers to use nondiscretionary bonuses and incentive payment (including commissions) paid at least annually to satisfy up to 10% of the standard salary level.
  • Revises the special salary levels for workers in U.S. territories and the motion picture industries have been revised to $455 and $1043, respectively.

It will be important for employers to analyze the status of employees who earn below the new salary threshold but were previously exempt.  Employers will have to consider whether to reclassify those employees as nonexempt hourly workers or give them raises to bring them up to the new threshold.  If employees now classified as exempt are reclassified as nonexempt workers, employers should make sure the newly reclassified employees know what is expected of them as hourly workers.

The quiz below was developed by the law firm, Pautsch, Spognardi & Baiocchi Legal Group.

Answer each question as TRUE or FALSE:

  1. Under the new DOL rules, if an employee makes over $35,568 per year, it is permissible to pay the employee on an hourly basis and not pay that employee overtime.
  2. To be considered exempt under the “white collar” exemptions, under either the new rules or the old rules, the employee must supervise at least two other individuals.
  3. Under the new rules, if an employee holds a professional degree, they can be classified as exempt even if they are not paid a salary of at least $35,568 per year.
  4. Under the new rules, exempt employees, who are paid a salary of over $35,568 per year, can be “docked” pay on an “hour-by-hour” basis as long as careful records are kept and they have forms of paid leave to use for the docked time periods.
  5. The FLSA has an overtime exemption for “inside sales” employees that remains unaffected by the new rules.
  6. The FLSA has overtime and minimum wage exemption for “outside sales” employees that remain unaffected by the new rules.

ANSWERS:

  1. FALSE, each of the “white collar” exemptions (“professional”, “administrative”, “executive”) from overtime require that the employee be paid on a “salary basis” in addition to the “duties” standards set for each. As noted below, the “salary basis” test does not apply to “inside” and “outside sales” exemptions.
  2. FALSE, this is true and required for the “executive” exemption, but not for the “administrative”, “professional” and “inside” and “outside” sales exemptions.
  3. FALSE, to qualify for the “professional” exemption, the employee must meet both the “salary” level test (now $35,568) and the “duties” and status requirements of the “professional” exemption, i.e., that the employee holds a professional degree and perform that work as their primary duty.
  4. This can be done lawfully, but it may be inadvisable to do so as it may cause morale problems and can lead to suits if situations occur if “docking” occurs when the paid leave bank has been depleted.
  5. Under federal law, the inside sales exemption applies to employees who earn more than 150% of the minimum wage, derive at least 50% of their income from commissions, and work within the “retail and service industry” as defined under the FLSA.
  6. Under federal law, an employee who qualifies for this exemption is exempt from both the minimum wage and overtime premium requirements.  The employee’s primary duty must be making sales (as defined in the FLSA), or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer and the employee must be customarily and regularly engaged away from the employer’s place or places of business.  The salary requirements of the regulation do not apply to the outside sales exemption.

Spognardi Baiocchi LLP, a law firm dedicated to partnering with companies of all sizes to find solutions for labor, employment, human resources, and general business needs.  www.psb-attorneys.com.

WageWatch offers accurate, up-to-date benefit surveys, salary surveys and pay practice data that will allow you to stay current.  This information is highly beneficial in creating the best salary and benefits packages that meet or rival the industry standards.  For more information on our services, please call WageWatch at 888-330-9243 or contact us online.

LABOR BOARD EXTENDS TIME TO BRIEF STAND FOR EMPLOYEE LOSS OF WORKPLACE PROTECTIONS FOR COARSE LANGUAGE AND CONDUCT

Strike WorkersThe National Labor Relations Board has extended the time to file briefs in addressing when employees lose the protections of the Act for using coarse or racially offensive language.   Amicus briefs not to exceed 25 pages in length were due this past Tuesday, November 12.  The parties are permitted to file responsive briefs not to exceed 15 pages in length on or before November 27, 2019.

On September 5, 2019, the National Labor Relations Board requested briefing on whether the Board should reconsider its standards for losing workplace protections under the National Labor Relations Act (“Act”) for profane outbursts and offensive statements made while engaged in workplace labor disputes.  In its notice, the Board invites the public to provide input on whether to adhere to, modify, or overrule the standard applied in previous cases in which profane outbursts and offensive statements of a racial or sexual nature were judged not to lose the protection of the Act.

The Board asks the parties to address either some or all the following questions:

  1. Under what circumstances should profane language or sexually or racially offensive speech lose the protection of the Act?
  2. The Board has held that there should be some leeway to consider the realities of industrial life and the fact that disputes over wages, hours, and working conditions are among the disputes most likely to engender ill feelings and strong responses. To what extent should this principle remain applicable concerning profanity or language that is offensive to others based on race or sex?
  3. If the norms of the workplace are relevant, should the Board consider employer work rules, such as those that prohibit profanity, bullying, or uncivil behavior?
  4. To what extent, if any, should the Board continue to consider context—g., picket-line setting—when determining whether racially or sexually offensive language loses the Act’s protection?
  5. What relevance should the Board accord to anti-discrimination laws such as Title VII in determining whether an employee’s statements lose the protection of the Act?

The notice seeks comments relating to the following cases: Plaza Auto Center, 360 NLRB 972 (2014), Pier Sixty, LLC, 362 NLRB 505 (2015), and Cooper Tire, 363 NLRB No. 194 (2016).  The Board’s treatment of such language (as well as sexually offensive language) has been criticized as both morally unacceptable and inconsistent with other workplace laws by Federal judges as well as some within the Board, and members of the public.

Contributed by guest author:  Spognardi Baiocchi LLP, a law firm dedicated to partnering with companies of all sizes to find solutions for labor, employment, human resources, and general business needs;  www.psb-attorneys.com.

WageWatch offers accurate, up-to-date benefit surveys, salary surveys and pay practice data that will allow you to stay current.  This information is highly beneficial in creating the best salary and benefits packages that meet or rival the industry standards.  For more information on our services, please call WageWatch at 888-330-9243 or contact us online.

Posted in Regulatory & Legal Updates on November 20th, 2019 · Comments Off on LABOR BOARD EXTENDS TIME TO BRIEF STAND FOR EMPLOYEE LOSS OF WORKPLACE PROTECTIONS FOR COARSE LANGUAGE AND CONDUCT

SUPREME COURT ACCEPTS THREE (3) CASES SEEKING TO LIMIT LAWSUITS AGAINST BUSINESSES

The United States Supreme Court building - Washington, D.C., USA

There are three new law cases, impacting employers and business enterprises, that are on the docket of the Supreme Court this Fall.  These cases have been relatively ignored by the media and have the potential to greatly impact businesses.

Case I – Racial Discrimination

Comcast is attempting to stop a lawsuit by Entertainment Studios Networks Inc., which says racial discrimination is the reason it couldn’t get its channels onto the carrier’s cable systems.  At issue is a provision known as Section 1981, a Reconstruction-era law that bars racial discrimination in contracting.  Comcast says the appeals court improperly made it easier to sue under that statute than under other civil rights laws.  Entertainment Studios, owned by comedian and producer Byron Allen, says it tried for years to get its channels carried by Comcast.  The suit alleges Comcast officials refused to reach a deal, even while expanding offerings of less-known, white-owned channels.  The case was dismissed in federal court, but the 9th Circuit revived the lawsuit concluding that the plaintiff only had to show that race was a factor, not that it was the motivating or “but for” to prove discrimination.   The Supreme Court’s decision will decide whether this type of contractual discrimination lawsuit (which can be brought by an enterprise) must be proven by a tougher standard.

Case II – Age Discrimination

In Babb v. Wilkie, the Court will consider the standard of proof for federal government workers who bring claims under the Age Discrimination in Employment Act, as opposed to private-sector employees.  The federal government argued that a strict “but for” standard should apply to federal workers’ claims, meaning that the employee must show the adverse employment action would not have been taken “but for” the employer’s bias.  The employee in the case argued that a more lenient standard should apply that considers whether age bias was a motivating factor for the negative employment decision.

Case III – Employee Retirement Income Security Act

In Intel Corp. Investment Policy Comm. v. Sulyma, a former employee filed a lawsuit against Intel’s retirement plan committee for allegedly breaching fiduciary duties by making poor investments.   The committee defended based upon ERISA’s three-year statute of limitations to file such claims.  Intel argued that the lawsuit is barred because the employee received all the relevant plan investment information more than three years before he filed the complaint. But the employee argued that his claim is timely because he did not discover the problem until he read the investment information, filing the lawsuit.   A result against Intel will result in more claims against employer investment fiduciaries.

Contributed by guest author:  Spognardi Baiocchi LLP, a law firm dedicated to partnering with companies of all sizes to find solutions for labor, employment, human resources, and general business needs.  Contact:  www.psb-attorneys.com.

WageWatch Inc. offers accurate, up-to-date benefit surveys, salary surveys and pay practice data that will allow you to stay current.  This information is highly beneficial in creating the best salary and benefits packages that meet or rival the industry standards.  For more information on our services, please call WageWatch at 888-330-9243 or contact us online.

 

Posted in Regulatory & Legal Updates on October 30th, 2019 · Comments Off on SUPREME COURT ACCEPTS THREE (3) CASES SEEKING TO LIMIT LAWSUITS AGAINST BUSINESSES

HOW ENFORCEABLE IS YOUR NON-COMPETE AGREEMENT?

Non-Compete

Does your organization have a non-compete agreement in place?  If so, has it been reviewed recently?  Non-compete agreements are driven by state laws.  Over the past year, there have been a few states that have changed their laws, with changes taking effect next year. The revisions that states are enacting move to restrict using unreasonable non-compete agreements with employees.

Washington, New Hampshire, Massachusetts, Maine, Maryland, Oregon, and Rhode Island have modified their non-compete agreements this year and are leading the way in non-compete agreement reform.  These states have not adopted a uniform approach, but each state provides some direction to other states that may be considering reform.  Reasonable non-compete agreements are helpful and often necessary for employers to hire individuals without risking that they will then lose their customers if an employee leaves and tries to take clients with them.  However, some agreements go too far and have become unreasonable.

The Washington Statute, effective January 1, 2020, will be unenforceable for employees earning less than $100,000 in total annualized compensation or independent contractors earning less than $250,000 per year.  Non-compete agreements are unenforceable for a period greater than 18 months and the terms must be disclosed to prospective employees no later the time the employee accepts an offer of employment.  In addition, the statute has several employee protection mechanisms in place, such as requiring an employer to pay an employee’s legal fees and damages should they seek to enforce an unreasonable non-compete agreement.

Potential areas to revise with a non-compete agreement include:

  • A threshold for an employer’s salary, anyone making less than the stated amount are excluded from the agreement (i.e., employees making less than $75,000 are excluded from a non-compete agreement)
  • Length of employment; an employee could not be held to a non-compete agreement if they were not employed for at least a year by the employer or terminated or laid off without misconduct
  • Employees faced with an employer that seeks to enforce an unreasonable agreement should be penalized by having to pay the employee’s legal fees and a small number of damages.  It may be a good time to review your non-compete agreement, especially to determine if your agreement is currently relative to any changes in the law that governs it.

WageWatch offers accurate, up-to-date benefit surveys, salary surveys and pay practice data that will allow you to stay current.  This information is highly beneficial in creating the best salary and benefits packages that meet or rival the industry standards.  For more information on our services, please call WageWatch at 888-330-9243 or contact us online.

 

 

TRUMP LABOR BOARD PROPOSES EMPLOYEE FREE CHOICE ELECTION PROTECTIONS

American Wkrs

In the middle of August, the National Labor Relations Board (NLRB) published a Notice of Proposed Rulemaking to amend Part 103 of the NLRB’s Rules and Regulations. The proposed amendment, published in the Federal Register, seeks public comment on amendments that will provide better protection to employee election rights to have a free choice on whether to be represented by a union for collective bargaining with employers.  Three amendments are proposed:

  1. Blocking Charges: The amendment seeks to replace the current blocking charge policy with a “vote-and-impound” procedure.  Elections would no longer be blocked by pending unfair labor practice charges, perhaps for years.  Rather, the amendment would provide for voting, and the ballots would be impounded until the unfair labor practice charges are resolved.
  2. Voluntary Recognition Bar: The Board proposes returning to the rule of Dana Corp. (2007), which provides that for voluntary recognition to bar a subsequent representation petition-and for a post-recognition collective-bargaining agreement to have contract-bar effect- the unit employees must receive notice that voluntary recognition has been granted, and provided a 45-day open period within which to file an election petition.
  3. Section 9(a) Recognition in the Construction Industry: The rule amendment proposes changes in the construction industry, where less-than-majority employee support bargaining relationships established under Section 8(f) cannot bar petitions for a Board election.  To bar an election based upon an alleged Section 9(a) relationship, positive evidence of majority employee support will be required, and cannot be based on contract language alone, overruling Staunton Fuel (2001).

Board Chairman John F. Ring stated: “There are few more important responsibilities entrusted to the NLRB than protecting the freedom of employees to choose, or refrain from choosing, a labor organization to represent them, including by ensuring fair and timely Board-conducted secret ballot elections. We believe that the changes we propose today further the goal of protecting this vital freedom.”

Public comments must be submitted within 60 days of the Notice’s publication in the Federal Register.  Please contact Spognardi Baiocchi, LLP if you would like to retain the firm to submit comments on behalf of your organization.

Contributed by guest author:  Spognardi Baiocchi LLP, a law firm dedicated to partnering with companies of all sizes to find solutions for labor, employment, human resources, and general business needs.  www.psb-attorneys.com.

WageWatch offers accurate, up-to-date benefit surveys, salary surveys and pay practice data that will allow you to stay current with the times.  This information is highly beneficial in creating the best salary and benefits packages that meet or rival the industry standards.  For more information on our services, please call WageWatch at 888-330-9243 or contact us online.

Posted in Regulatory & Legal Updates on August 27th, 2019 · Comments Off on TRUMP LABOR BOARD PROPOSES EMPLOYEE FREE CHOICE ELECTION PROTECTIONS

COMPENSABLE TIME

Compensable Time

Employers need to ensure they count all worked hours as paid hours for their non-exempt staff.  For example, when an employee eats lunch at their workstation or desk and their lunch is interrupted by work such as answering phones or email, the employee is working and must be paid for that time because the employee has not been completely relieved from duty.

If the employer has a policy that is expressly and clearly communicated to the employee regarding a specific length of time for a break, any unauthorized extensions of that break time do not need to be counted as hours worked.  Bonafide meal periods (typically 30 minutes or more) generally need not be compensated as work time.  However, the employee must be completely relieved from duty for the purpose of eating regular meals.

The federal Fair Labor Standards Act (FLSA), doesn’t require employers to provide meal or rest breaks, though some states do require such breaks and the rules can also be different for younger workers.  You can find a list of state meal and rest break laws at the Department of Labor’s website address: https://www.dol.gov/whd/state/meal.htm  and  https://www.dol.gov/whd/state/rest.htm.

Employers that fall under the federal guidelines do not have to pay for meal or rest breaks unless:

  • The employee works through or during their break, or
  • The break lasts 20 minutes or less, or
  • The break is interrupted by work

Some other compensable time under the federal rules can include waiting time, on-call time, attendance at meetings and training programs, travel time and performing work outside of work hours such as checking emails.

Waiting time may or may not be hours worked depending upon the circumstances.  If an employee needs to wait before a duty can start such as a firefighter waiting for an alarm, then the employee is ‘engaged to wait’ and this time is worked time and must be paid.

On-Call time is paid time if the employee is required to remain on the employer’s premises.  In most cases, the on-call time does not have to be paid when an employee is not required to remain on the employer’s premises.  However additional requirements put on the on-call time that further limits the employee’s freedom could require the time to be compensated.

Attendance at meetings or training programs is paid time when any of the following conditions are true:

  • It is during normal hours
  • It is mandatory (if the employee feels that they should or need to attend, then it is mandatory)
  • It is job-related

Travel time may be paid time or not depending upon the kind of travel involved.  Regular commute time to and from the worksite is not paid time.  When the employee works at a different worksite location then any commute time that is greater than the employee’s regular commute time to their usual work site needs to be counted as paid time.

Travel that is part of the regular work duties, such as travel from job site to job site during the workday, is work time and must be counted as hours worked.  Overnight travel is work time and must be paid time

At WageWatch our compensation consultants are focused on your organization’s compensation needs and ready to help you ensure that your compensation programs are supporting your company’s business strategy and objectives and that your pay practices are fair, equitable and non-discriminatory. We can provide your business with compensation surveys and salary reports to help you establish a budget for your merit pay program, including bonuses and incentives. Our innovative company is a leader in the collection of data for surveys and salary reports, which allows us to provide services to a wide range of industries in both the private and public sector. To learn more about our compensation surveys, salary reports, and other services, call 480-237-6130 or contact us online.

IMPACT OF MEDICAL MARIJUANA ON EMPLOYERS

Courts historically found a marijuana-positive drug test sufficient grounds to terminate an employee or refuse to hire someone; employers were safe to move forward without worrying about an individual being approved to use medical marijuana or if an employee was impaired at work.  Problems arise when federal law conflicts with state law.    Based on the U.S. Drug Enforcement Administration, marijuana is still considered a Schedule I illegal drug—even for medical purposes.

 

Many states and local jurisdictions have enacted anti-discrimination laws concerning marijuana use.  Generally, such laws prohibit employers from taking adverse action against an employee who uses marijuana in conforming with local marijuana laws, if an employee does not consume it and work and is not impaired while on the job.

CMJ Mapurrently, there are 33 states and the District of Columbia with recently approved ballot measures legalizing marijuana for medical or recreational purposes.  The state laws for medical use varies significantly and not all of them recognize marijuana-approved patients from their states.  The states with medical marijuana laws and their guidelines for usage varies widely.  Some states require patients to register, others don’t allow dispensaries, and not all of them recognize marijuana-approved patients from their states.  In addition, some states allow employers to enact employment policies that prohibit the use of marijuana; these states do not force employers to make accommodations for employee use of marijuana.

 

In terms of recreational marijuana use, employers can have policies that prohibit the drug’s use and possession while employees are at work.  In addition, employers can prohibit their employees from being impaired by marijuana at work.  In these states, employers must comply with federal and state laws and provide employees with a safe and productive workplace.  At the same time, employers must accommodate employees with disabilities that may require medical marijuana.  Under the Americans with Disabilities Act, employers are required to make a “reasonable accommodation” to employees with disabilities—especially when workers have a doctor’s note that allows them to use it.
The differences in state laws require Human Resources to be aware of the legal issues involved and the changing legal landscape to ensure drug testing policies are legal and enforceable.  The following steps can ensure that your organization maintains a safe working environment with regards to employee medical marijuana use while reducing the risk of costly legal claims:

  • Review the company’s current drug testing policies to the extent that they test for marijuana, and determine whether state law requires exceptions to testing policies as a reasonable accommodation
  • Train managers on how to handle reasonable accommodation requests by disabled employees who are certified, medical marijuana users
  • Review policies regarding illegal drugs and disabilities to ensure that each complies with your state’s current medical marijuana laws
  • Ensure that managers and human resources employees are properly trained on how to determine (and document) employee impairment when an employer suspects that drug use (legal or otherwise) is causing workplace issues

WageWatch offers accurate, up-to-date benefit surveys, salary surveys and pay practices data that will allow you to stay current with the times.  This information is highly beneficial in creating the best salary and benefits packages that meet or rival the industry standards.  For more information on our services, please call WageWatch at 888-330-9243 or contact us online.

 

 

PAY EQUITY ANALYSIS

Pay Equitu

To manage the risk of pay discrimination, organizations should conduct periodic pay equity analysis.  The goal of a pay equity study or analysis is to identify problems and ensure compensation practices are fair and equitable.  The study should look for trends that identify the disparate impact on wage rates.  Data elements to include in the analysis are hire dates, hire rates, performance rating, merit increases, age, ethnicity, gender, and promotion dates and increases.  Group the data in job classifications and departments by the hierarchy as well as grouping comparable jobs across departments.  Sort the data by the various data elements to see what emerges.  This analysis can identify wage inequities as well as explain some of the differences in pay among comparable employees.  A thorough analysis is important for managing the risk associated with pay discrimination claims.

Differences in knowledge, skill, ability, effort or responsibility provide a legitimate basis for differences in pay among employees doing the same work. However, these factors can be difficult to validate or prove, and therefore you will need to rely on the data that is readily available including:

  • Job title or grade
  • Time in current job or grade
  • Job duties including the degree of responsibility
  • Job status (Full or part-time, exempt or non-exempt, etc.)
  • The location where the employee lives and works
  • Company service time
  • Education
  • Prior experience
  • The market value of a job
  • Performance Review documenting effort in terms of quantity and quality of work

Pay equity issues can occur over time as a result of flaws in a compensation process including:

  • Insufficient training of Managers regarding performance, merit and other increases
  • Inefficient and inconsistent merit pay processes
  • Decisions being made in “silos” and without consistent checks such as HR/Compensation approval
  • Making decisions without market or internal data for guidance
  • Reactive hiring decisions relative to “hot” jobs
  • Poorly maintained salary structures that have not kept step with the market
  • Failure to reclassify jobs as changes in responsibility occur

A pay equity study will involve the input an experienced compensation analyst and/or specialist as well as HR information systems and may involve appropriate legal counsel.  Once pay inequities are discovered, HR will need to determine a timeline and the funding for the pay equity adjustments.

In 2009, President Obama signed into law, the Lilly Ledbetter Fair Pay Act which increased organizations’ exposure to pay discrimination claims by overturning a rule that workers must sue for pay discrimination within 180 days after the original pay decision was made.  As a result of the Act, each paycheck now resets the clock and employees can file lawsuits for perceived discriminatory pay decisions even if the pay decision occurred years earlier.  So, it is more important than ever for employers to carefully document all pay decisions and stay on top of pay equity in their organizations.

In 20016, the Obama administration announced executive action which requires companies with 100 employees or more to report to the federal government how much they pay their employees broken down by race, gender, and ethnicity.  It is hoped that this transparency will help to root out discrimination and reduce the gender pay gap.

On March 27, 2019, the U.S. House of Representatives voted to pass the Paycheck Act, an act designed to amend and strengthen the existing federal Equal Pay Act.  The Act further provides that the “bona fide factor” justifying gender-based pay disparities would only apply where “the employer demonstrates that such factor is: 1) not based upon or derived from a sex-based differential in compensation, 2) is job-related with respect to the position in question, 3) is consistent with business necessity; and 4) accounts for the entire differential in compensation of issue.”  The Paycheck Fairness Act has been moved to the Senate for consideration and voting.

At WageWatch our compensation consultants are focused on your organization’s compensation needs and ready to help you ensure that your compensation programs are supporting your company’s business strategy and objectives and that your pay practices are fair, equitable and non-discriminatory.  We can provide your business with compensation surveys and salary reports to help you establish a budget for your merit pay program, including bonuses and incentives.  Our innovative company is a leader in the collection of data for surveys and salary reports, which allows us to provide services to a wide range of industries in both the private and public sector.  To learn more about our compensation surveys, salary reports, and other services.  Please call 480-237-6130 or contact us online.