Recent changes in employment law under the Obama administration have given employees more ammunition to file suit against their employers. Couple that with huge increases in resources allocated to the Equal Employment Opportunity Commission for enforcement of these laws, and employers should be taking more precautions than ever to keep themselves on the right side of the law, says Erica Mason of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC.
“The EEOC is chomping at the bit to find new cases in the legal unit,” says Mason. “So even if you’re doing everything right, you’d better have airtight documentation to justify your actions, because if someone files a complaint, unlike in years past, the new EEOC is aggressively pursuing nearly every charge.”
Smart Business spoke with Mason about what employers need to know about recent changes to employment law and how to protect yourself should you be the target of one of the more than 90,000 complaints investigated by the EEOC each year.
What changes to the law should employers be aware of?
The Lilly Ledbetter Fair Pay Act of 2009 was the first piece of legislation President Barack Obama signed. As a result of this act, employers need to be much more careful about justifying payroll decisions across genders.
For example, an employer who has two open positions may hire an equally qualified male and female applicant for each position. However, there may be unintentional pay discrepancy because of the respective bargaining savvy of the new hires. In an all-too-common scenario, the male applicant asks for, and receives, a $50,000 annual salary. The female asks for an annual salary of $35,000, either because she is a less aggressive negotiator or she may just need the job more. Later down the road when the female finds out she’s making less, she could file suit under the Fair Pay Act. In such cases, it’s up to the employer to prove through documentation that the pay disparity was the employee’s own doing. Further, when managers are making salary decisions, they want these decisions to be based on objective criteria whenever possible, and they want oversight over the process to avoid mistakes made by rogue managers.
The bottom line is that if you pay someone less for a similar position, you’d better have your documentation readily available so that you can show that the lesser paid employee either asked for less compensation, performed at a lower level, made fewer sales, or had less work experience or education.
What other changes to employment law could affect how employers do business?
The recently enacted Genetic Information Nondiscrimination Act (GINA) covers employees’ genetic information and family histories. This act has broadened the definition beyond just collecting what was historically considered ‘genetic’ data. For example, if you say that your mother died of breast cancer in a request for bereavement leave, under this new law, that is now considered ‘genetic information.’
Under this law, employers cannot discriminate against an employee because it believes he or she has a genetic predisposition to a medical condition that could have a negative financial impact on the company. It is also illegal to retaliate against those who complain that this act has been violated.
Last, if an employer receives such information as a result of a request for leave or an accommodation under the FMLA or ADA, that information must be segregated from the employee’s personnel file and kept in a separate, confidential medical file in a locked drawer.
We expect this to be a statute that employers are not paying much attention to, but which the EEOC will be actively enforcing.
What recent changes have been brewing with respect to employment background checks?
When employers do background checks they may refuse to hire an applicant who shows a felony conviction. Such policies have been held lawful, as long as the policy is applied uniformly.
The EEOC has recently shifted position on this issue, claiming that because minorities have higher conviction rates, such policies may be used as pretext for racial discrimination. Under this new EEOC regime, if an employer wants to do a pre-employment background check and decides against hiring an applicant based on the results, the employer must show that the crime is job-related. For instance, if the position deals with handling money and the applicant has an embezzlement conviction, that is considered ‘job related.’ But if he has a DUI conviction and the position isn’t driving related, this should not be used as a reason not to hire.
Ultimately, it is the employer’s burden to prove the decision not to hire had nothing to do with the fact that the candidate is a minority. And if you can’t prove that the felony conviction was relevant to the job, the EEOC will assume your excuse is just a pretext for racial discrimination.
So how can employers protect themselves?
With the increase in enforcement and more people getting fired, there is a greater likelihood you will find yourself facing an EEOC charge, a lawsuit, or a charge before another administrative agency. To decrease your risk, document everything and make sure you’re treating people fairly across the board, across gender, race, age, etc. And when you do face an administrative agency, take the process seriously. At the end of the day, the best thing you can do to protect your business is to keep the number of a good employment lawyer on speed dial, preferably someone who is keeping abreast of these ever-changing laws and expanding agendas of the administrative agencies tasked with enforcing these laws.
Erica Mason is an associate at Baker, Donelson, Bearman, Caldwell & Berkowitz, PC. Reach her at email@example.com or (678) 406-8718.