What other employment-related laws have had an impact?
The Pennsylvania Human Relations Commission has proposed a new guidance for investigating claims of employment discrimination based on race and national origin. Should an employer reject a black or Hispanic applicant because of his or her criminal record, the PHRC will presume the rejection is due to discrimination in violation of the Pennsylvania Human Relations Act.
If an employer is going to screen out someone based upon a criminal conviction, it should comply with current and proposed regulations. There’s no question that the burden of dissuasion is on the employer. The only way you can prove your decision is not discrimination is by proving that the conviction was related to the job in question.
If somebody stole a candy bar 10 years ago but has had a stellar work record since then, that’s not job related. However, if someone stole $10,000 worth of tools from a retail company a year ago, that’s job related.
A related law is the Age Discrimination in Employment Act. This act makes it clear that when a victim shows discrimination was a ‘motivating factor’ behind a decision, the burden is on the employer to show it complied with the law. It also makes clear that this ‘motivating factor’ framework applies to all anti-discrimination and anti-retaliation laws — treating all workers, and all forms of discrimination, equally.
If you abruptly fire someone who is in the protected age category, without relevant justification and documentation, and you replace him or her with someone 15 years younger, you’re going to have a problem. Or if you conduct a RIF and 100 percent of the people selected for the RIF are older than 55, you’re going to have a problem.
What are the continuing impacts of the Lilly Ledbetter act?
The Lilly Ledbetter Fair Pay Act of 2009 was the first piece of legislation President Obama signed. In a Pennsylvania case, a female asked for a raise because she felt she was paid less than a similarly situated male but didn’t get a response. Using the Ledbetter Act as a precedent, that failure to answer was ruled a compensation decision, so the female could sue for discrimination.
As a result of this act, employers have to be much more careful about justifying payroll decisions. You should have some type of review system in place so a rogue manager or supervisor can’t make a decision that would be (or would appear to be) biased.
You need to retain your documents longer, because people have the ability to bring lawsuits based upon things that may have happened a decade ago. Also, you need to train your management team to know every compensation decision has legal implications.
How can employers avoid these lawsuits?
People aren’t going to sue you unless you create facts that cause them to question your intent or they think you are violating the law. Obviously, the best thing to do to avoid these high costs is to spend a bit of money on prevention. Make sure you consult with experts on the proper way to classify people — exempt or nonexempt — and the proper way to pay people — what is work time, what is not — to avoid catastrophic results.
Lynn C. Outwater is managing partner of Jackson Lewis LLP. Reach her at (412) 232-0232.
