June, 2009

Happy 4th of July to all ...

I hope you have some fun holiday plans in place and will enjoy some time away from the office. It's really hot in Arizona .. I'll be celebrating, but not sure just how!

I have a couple of "news" announcements this month, two lighter articles (one might just cause a smile or two) and my main article which is a review of the Lilly Ledbetter Fair Pay Act of 2009.

The Ledbetter Act is very important for you to understand because under this act, each paycheck that unfairly pays a worker less than it should is considered a discriminatory act. Employees who feel violated may file a charge of discrimination with the EEOC. You must understand what is involved!

First, the two announcements you need to know about:

FEDERAL MINIMUM WAGE INCREASES ON JULY 24, 2009

The new federal minimum wage rate increases to $7.25 per hour on July 24, 2009. If you are currently paying your employees below that amount, you must increase their wages on July 24th. Some states, like California, have a minimum wage higher than the federal rate, so no increases are required.. Arizona's minimum wage increased on January 1, 2009 to $7.25 - same as the new federal standard

E-VERIFY REQUIREMENT DELAYED AGAIN

The U.S. Citizenship and Immigration Services (USCIS) has announced that federal contractors will not be required to use the E-Verify system of employment eligibility checking until later this year. The requirement was to go into effect June 6, 2009.

The new implementation date is September 8, 2009. Federal contractors who do not now use E-Verify may continue to wait to register and participate if they wish. Until the September date, participation will remain voluntary. Some states like Arizona now require participation by employers who meet certain conditions. So, be sure you talk with your management attorney to be sure you are meeting the requirements that apply to your organization.

For a copy of the government's announcement about the new implementation date, go to: http://www.uscis.gov/portal/site/uscis

Source: The Management Advantage, Inc.

The following made me smile and I thought it might also tickle your funny bone.

Dress codes these days can be a touchy issue especially with younger people entering the workforce. I often get questions. How far can the employer take the code ... just remember - whatever you include in your dress code must be business-related and enforceable across the board. Smile.

HR Policy: Wear Underwear!

A city in Florida has a new mandate for employees: Wear underwear. In other words, don't show up to work "going commando."

The St. Petersburg Times reports that the Brooksville City Council recently approved a new dress code that included a requirement to wear underwear.

In addition to requiring city employees to wear underwear, the policy instructs employees to wear deodorant and prohibits them from wearing "distracting, offensive or revealing" clothing, Spandex, halter tops, and skirts worn below the waistline such that the abdomen or back is exposed. It also prohibits city employees from having visible body-piercings (with the exception of those in the ear) and having exposed cuts or wounds.

The vote to approve the dress code would have been unanimous if not for the Mayor Joe Bernardini, who said he voted against it because he didn't know how the underwear requirement would be enforced.

"They said you had to wear undergarments, but who's going to be the judge of that?" Bernardini tells the newspaper. "Sometimes when it comes to certain people going bra-less, it's obvious. But who's staring to see if that person doesn't have underwear on?"

Employees can be sent home if they violate the policy. For repeat offenders, disciplinary action up to an including termination is possible, the newspaper reports.

Source: St. Petersburg Times.

Two additional questions I get fairly often are:

1. "How long after employees have left should we retain their files?"
2. "If we shred the files, do we have to keep a record of employment date, termination date and any other information?"'

How long employers should keep personnel files is more a function of state law than anything else. It largely depends on how long an employee has to bring a claim for which those records could be relevant. Some of these rules are governed by federal law and others by state law.

As a general rule of thumb I suggest the following guidelines for paper/hard copies of records. For those who maintain electronic databases, the timelines are the same, but it is far easier to archive electronic records so they tend to not be purged as often.

• Wage-and-hour records - Three years

 

• Payroll records - Four years

 

• I-9 forms - Three years after hiring, or one year after separation (whichever is later)

 

• Employee personnel, medical and other employment records - Six years after termination

 

• Tax records - Seven years

 

• Written employment contracts and other agreements - 15 years

 

• Accident or workers' compensation claims - 5 years after the claim is closed or termination of employment

 

• Unlawful Employment Practices, Claims, Investigations and Legal Proceedings Records - Until disposition of the case

 

• Recruitment, Hiring and Job Placement Records - Two years after the position has been filled unless there is a claim or litigation involving hiring practices

I hope the above information is useful to you. Below is this month's main article on understanding the Lilly Ledbetter Fair Pay Act of 2009.

THE LAW:

Several federal employment laws bar discrimination in employee pay and benefits.

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, creed, color, gender, national origin, or religion.

The Equal Pay Act, passed by Congress, reaffirms equal pay for equal work for men and women.

The Age Discrimination in Employment Act (ADEA) of 1967 protects workers age 40 or older.

The ADEA Act eliminated the fear that employers might attempt to nudge or even push older workers out the door, Congress passed it to outlaw policies that give older workers less favorable pay and benefits than their younger counterparts.

The Rehabilitation Act holds government employers and government contractors accountable for discrimination against disabled workers.Congress has consistently ruled employers may not pay disabled workers less than other workers performing the same work even if those workers require reasonable accommodations. In 1990, Congress expanded these protections to private-sector workers when it passed the ADA.

WHAT'S NEW:

On Jan. 29, President Obama signed the Lilly Ledbetter Fair Pay Act of 2009 into law.

Under the Ledbetter Act, each paycheck that unfairly pays a worker less than it should is a discriminatory act. That fresh discriminatory act gives the worker a fresh 180-day period (300 days in some states) to file a charge of discrimination with the EEOC.

Congress passed the Ledbetter Act in response to a 2007 Supreme Court decision in which the court ruled that Lilly Ledbetter, a long-time Goodyear Tire employee, could not address pay disparities that were based on unfair evaluations performed many years earlier. Ledbetter showed the court that her pay was 40% lower than the lowest-paid male in her job class. She traced the pay difference to several decades-old poor evaluations ... evaluations she claims were biased.

The court ruled the evaluations were discriminatory, but paychecks based on the evaluations were not. Thus, Ledbetter had waited too long to file her complaint. Under Title VII of the Civil Rights Act, complaints must be filed with the EEOC within 180 days of the alleged discriminatory act (300 days in states with state or local anti-discrimination agencies like CA).

The Ledbetter law took effect retroactively to May 28, 2007, the day before the Supreme Court decision. Employees may seek damages for discriminatory pay from that date forward. However, if employees find a discriminatory evaluation or similar act affecting pay or benefits that occurred earlier, they may still file suit. Back-pay damages are limited to two years. Employees may also seek punitive and emotional distress damages.

HOW TO COMPLY:

Now is the time to audit your pay policies. Involve your attorneys. That way, any discriminatory practices you identify will be protected by attorney-client privilege. This safe haven allows employers to correct bad practices before being dragged into court.

Focus your audit on three key areas:

1. Salary and benefits upon hire.
   How do you determine starting pay and benefits? You should be able to justify all pay and benefits decisions based on business or market conditions. Policies that exist simply because "that's the way it's always been done" won't fly in front of a jury.


 


2. Current salary and benefits.
   Every policy is ultimately implemented by people. Even if starting salaries were fair, evaluator bias can distort salaries and benefits as time goes on. If the system is fair, employees with similar objective performance measures (experience, education, shift-differential, sales, etc.) should be earning about the same amount regardless of gender, race, disability or other protected class membership. To look at it another way, you should be able to point to some objective measure to explain any differences. Audit current pay and benefits to see whether any protected group is falling behind.


 


3. Documentation.
   Because employees can now go back almost indefinitely to find evidence of discrimination, you must keep pay and benefits-related documents for a longer time. Generally, keep them for three years after the employee leaves.

Once completed, work with your attorneys to address any vulnerabilities the audit reveals.

Source: The HRSpecialist.com
© 2009 NIBM. All rights reserved

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