Since the passage of the California Fair Pay act in late 2015 (effective January 1, 2016) and its recent amendments, many employers and commentators have criticized the statute for imposing a vague and dangerous standard on California employers.

The California Fair Pay Act replaces the former “equal work” standard of the Equal Pay Act with a “substantially similar” standard.   The California Fair Pay Act (Labor Code section 1197.5) states:   “(a) An employer shall not pay any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions …”. Chuck-Post-07_web

Some adrenalized commentators have said that any effort to actually conduct this analysis is a fool’s errand. The standard is so vague and shapeless that it is functionally meaningless until a court sharpens the standard with defined tests and definitive holdings. Other commentators suggest that employers abandon any attempt to determine if any two types of work are substantially similar to one another (an analysis required by the statute) and instead focus on the second half of the statutory analysis, which allows employers to justify wage disparities (along race or gender lines) on the basis of a bona fide factors other than sex or race.

While it is true that courts have not yet ordained a specific analysis on how to determine substantially similar work, the statutory standard is not so vague as to defy either analysis or application.  Legislative examples propose that under this standard a male school janitor and a female hotel housekeeper may be engaged in substantial similar work.

Even if the standard were so vague as to defy application (and I don’t believe it is) employers are well served to act reasonably and based upon a good faith and reasonable interpretation of the law. Yes, a court may later hold that some part of any analysis used is incorrect, but the use of a reasonable analytic process (before any court decision considering the law) will likely place an employer in a better position than a company that has skipped the first step of the required analysis.

To read this full article and a general approach to conducting the “substantially similar” work analysis, click here.

In Green v. Dallas County School District, a Texas jury found that a Dallas County School District (the “School District”) violated Texas disability discrimination laws when it fired a bus monitor who lost control of his bladder on a school bus.  The bus monitor, Paul Green, suffered a known disability – congestive heart failure – and had disclosed that he was taking a diuretic drug for his heart condition. The District said it did not fire the bus monitor “because of” his disability (congestive heart failure) but because of the health and safety violations that occurred. On appeal, the Court of Appeal agreed and reversed the jury verdict.  Green asked the Texas Supreme Court to consider whether the jury could have found he was fired because of a different “disability” – his urinary incontinence.

To read the rest of this article, visit HRUSA at http://blog.hrusa.com/blog/texas-bus-monitor-termination-for-incontinence-is-discrimination/

On April 13, 2017, Governor John Hickenlooper approved Colorado House Bill 17-1021 (“HB 17-1021”) which amends Section 8-1-115 of the Colorado Revised Statutes.  In summary, HB 17-1021 provides that the information an employer provides to the Colorado Department of Labor and Employment (“CDLE”) in connection with complaints and investigations into violations of the State’s wage and hour laws can be treated as a public record and released to the public pursuant to the Colorado Open Records Act, unless the CDLE determines that the information is a trade secret.

To read the rest of the article, visit the HRUSA blog at: http://blog.hrusa.com/blog/colorado-payroll-information-may-become-public-record/.

Summary of Program

The risks involved in misclassifying a worker as an independent contractor rather than an employee have always been serious. A number of federal and state agencies regulate the proper classification of workers and have the authority to impose significant monetary and non-monetary sanctions against employers who get the classification wrong.

Program Highlights

This informative webinar will cover the legal landscape of independent contractor status. Topics will include:

  • A summary of the various tests applied by federal and state agencies to determine independent contractor status;
  • A summary of the enforcement authority of various federal and state agencies and the sanctions they may impose;
  • The due diligence employers must engage in before classifying a worker as an independent contractor; and
  • California’s law imposing monetary and non-monetary sanctions against employers (and other individuals) who willfully misclassify workers as independent contractors.

If you or your company is currently using independent contractors, this is a webinar you won’t want to miss. Register today!

Date & Time:

Thursday, June 15, 2017

Webinar
12:00 pm – 1:00 pm

There will be no cost for this webinar.

Approved for one (1) hour MCLE. This program will be submitted to the HR Certification Institute for Review.

Please RSVP by Monday, June 12, 2017.

To RSVP please visit our event page at http://www.weintraub.com/events/saying-doesnt-make-independent-contractor-v-employee-status.

Compensatory time off or “comp time” is paid time off that is provided to employees instead of overtime pay.  Comp time has been used by public employers for decades.  There have been several attempts in the past to legalize comp time for private sector employers.  So far, no changes to the law have been passed.

On May 2, 2017, H.R. 1180, the Working Families Flexibility Act of 2017, passed the U.S. House of Representatives 229-197.  All Democrats and six Republicans voted against the bill.  H.R. 1180 must also pass the U.S. Senate in order to be presented to the President.  The White House Administration has already indicated that if H.R. 1180 were presented to the President in its current form, his advisors would recommend that he sign the bill into law.  However, given that at least some Democrats must vote in favor of the bill in the Senate it is unlikely that the President will ever be given this chance.

Read about the amendments to the Fair Labor Standards Act (FLSA) at http://blog.hrusa.com/blog/private-sector-comp-time-dont-count/.