Congress Considers a "fix" to the Gender Pay Gap

On January 29, 2009, President Obama signed into law the Lilly Ledbetter Fair Pay Act, extending the time plaintiffs have to bring sex discrimination claims based on inequitable pay compared to men. Despite a year under this law, NPR reports that women are still only paid $0.77 for every $1 paid to men in comparable positions:

Congress seeks to address this imbalance with a new act, the Paycheck Fairness Act, which has already passed the House without amendment, which:

• [Replaces the "any factor other than sex" defense with the bona fide factor defense (education, training, or experience).]
• States that the bona fide factor defense shall apply only if the employer demonstrates that such factor: (1) is not based [on] a sex-based differential ...; (2) is job-related ...; and (3) is consistent with business necessity.
• [States] that [the bona fide factor defense] defense shall not apply where the employee demonstrates that: (1) an alternative employment practice exists that would serve the same business purpose without producing such differential; and (2) the employer has refused to adopt such alternative practice.
• Prohibits retaliation for inquiring about, discussing, or disclosing the wages of the employee or another employee [in connection with charges or investigations].
• Makes employers who violate sex discrimination prohibitions liable in a civil action for either compensatory or ... punitive damages.
• [Allows class actions or certain recovery by the Secretary of Labor.]
• [Authorizes funding and directs agencies to implement certain education and research.]
• [Requires] the EEOC to collect from employers pay information data regarding the sex, race, and national origin of employees for use in the enforcement of federal laws prohibiting pay discrimination.

As such, if passed and signed into law, this act imposes one obligation (providing data to the EEOC) and at least two litigation restrictions on employer facing discrimination charges under the Act. Cook Brown has many years of experience working on both wage and hour, retaliation, and discrimination employment law issues, and can advise how to implement policies to reflect the Paycheck Fairness Act if and when it becomes law.

Department of Labor: Guidance re Mortgage Loan Officers

The US DOL Administration issued an opinion stating that mortgage loan officers do not qualify as administrative employees exempt under the Fair Labor Standards Act, 29 U.S.C. § 213(a)(1). This opinion interprets the administrative exemption in a far more detailed way than the DOL has treated the subject in the most recent past, and as such should be interesting reading for many employers.

Contact Cook Brown, LLP for assistance with federal and state wage and hour questions.

Gist of Health Care Reform Law for Employers

From the Henry J. Kaiser Family Foundation:

Generally speaking, the new Patient Protection and Affordable Care Act will:

• Create an essential health benefits package that provides a comprehensive set of services, covers at least 60% of the actuarial value of the covered benefits, limits annual cost-sharing to the current law HSA limits ($5,950/individual and $11,900/family in 2010), and is not more extensive than the typical employer plan. Require the Secretary to define and annually update the benefit package through a transparent and public process. (Effective January 1, 2014)
  Prohibit abortion coverage from being required as part of the essential health benefits package. (Effective January 1, 2014)
• Require all qualified health benefits plans, including those offered through the Exchanges and those offered in the individual and small group markets outside the Exchanges, except grandfathered individual and employer-sponsored plans, to offer at least the essential health benefits package. (Effective January 1, 2014)

Specifically as to employers, the Act will:

• Assess employers with more than 50 employees that do not offer coverage and have at least one full-time employee who receives a premium tax credit a fee of $750 per full-time employee. Employers with more than 50 employees that offer coverage but have at least one full-time employee receiving a premium tax credit, will pay the lesser of $3,000 for each employee receiving a premium credit or $750 for each full-time employee. For employers that impose a waiting period before employees can enroll in coverage, require payment of $400 for any full-time employee in a 30-60 day waiting period and $600 for any employee in a 60-90 day waiting period. (Effective January 1, 2014)
• Exempt employers with 50 or fewer employees from any of the above penalties.
• Require employers that offer coverage to their employees to provide a free choice voucher to employees with incomes less than 400% FPL whose share of the premium exceeds 8% but is less than 9.8% of their income and who choose to enroll in a plan in the Exchange. The voucher amount is equal to what the employer would have paid to provide coverage to the employee under the employer’s plan and will be used to offset the premium costs for the plan in which the employee is enrolled. Employers providing free choice vouchers will not be subject to penalties for employees that receive premium credits in the Exchange. (Effective January 1, 2014)
• Require employers with more than 200 employees to automatically enroll employees into health insurance plans offered by the employer. Employees may opt out of coverage.

The number of changes affecting individuals is long. Future blog posts will be devoted to them.

Health Care Reform Bill -- HR 3590 -- and What it Means to You

As you probably know by now, H.R. 3590, the nation's health care reform bill passed the House last night, and awaits only the President's signature to become law. As with all laws, the rhetoric is loud and the real-life details are harder to grasp. Here are a couple useful guides to the reform:

• NPR's Consumer's Guide to the Health Overhaul: Explains the bill in question and answer format, including what will happen to employers' requirements to provide healthcare.
• NPR's list of "early deliverables" flowing out of the bill, explaining the immediate impact of the bill to individuals.

 With the President expected to sign the bill on Tuesday, these changes will likely take effect this week.

Employee Compensation for Time Checking Tweets?

A Wisconsin maintenance worker filed a wage and hour class action for time spent “on call” with a company–owned PDA. The complaint alleges that he was “forced to work off the clock” just because the company provided the PDA. (Rulli v. CBRE.) The complaint alleged that the employer's demand for 15 minute turn-around equals a 24–hour workday.

However, the Courts have debated whether use of convenient electronic devices is a boon to employees or an infringement on their rights. Employees "waiting to be engaged" are generally not paid for that time, while those "engaged to be waiting" are. (Reimer v. Champion Healthcare; Pabst v. Okla. Gas and Elec.) How will this case turn out in California?

For more information, see my article Avoiding the PDA Time Trap at cookbrown.com.