We had such a spirited panel discussion on pay equity at our Third Annual Employment Law Summit recently that we wanted to follow up with a post addressing the current state of play on pay equity legislation, particularly with respect to salary history disclosure laws. This is a rapidly advancing area of the law in which we continue to see new developments.
My colleague, Jessica Catlow was quoted in the SHRM article, Is Banning Salary History Discussions a Game Changer? in which she analyzes a recent Massachusetts law that prohibits employers from asking job applicants about their salary history. Catlow highlights the law’s impact on the way women negotiate salary during the hiring process. The article provides an overview of the law and examines the likelihood of a nationwide ban on pre-hire salary questions.
Being connected to not just your friends, but their friends and their friends’ friends (it’s all six degrees of separation, right?) means that it’s become increasingly hard to stay anonymous when using an online dating platform. Just ask one recent male user of OkCupid who made vulgar and inappropriate comments to a female user. Her response? Post the conversation and the man’s profile picture to her Facebook account. He insulted her, she publicized him. So far, there are no legal implications.
Her friend, an independent recruiter for tech startups, saw the post and recognized the man’s profile picture. As it turns out, it was also his LinkedIn profile picture, and he had just applied for a position with one of her clients. Her response? Withdraw his application from consideration and tell him to treat women better online. He insulted her friend, she withdrew his application for employment. Here is where the criticism started.
The question: Can a recruiter reject a potential applicant based on inappropriate comments made on a dating site?
We have co-authored an alert with our affiliate government relations consulting group, ML Strategies entitled, “Massachusetts State Legislature Takes Action on Major Employment Reform as Legislative Session Ends”, which addresses key legislation concerning pay equity, transgender anti-discrimination, non-compete agreement reform, credit checks reform and wage theft. The alert provides a review of the new laws and their implications for employers.
In an important victory for employers, the Supreme Court in Spokeo, Inc. v. Robins held that a plaintiff does not have Article III standing to sue in federal court under the Fair Credit Reporting Act (FCRA) and other federal statutes absent a sufficient allegation of the existence of a concrete injury. The Supreme Court was clear that alleging a bare procedural violation absent any concrete injury to the plaintiff was insufficient to move a case forward. While it remanded the case to determine whether the plaintiff sufficiently alleged a concrete injury, employers should welcome this decision as a potential end to costly FCRA (and other statutory) class actions based on trivial violations of procedural requirements that don’t harm anyone.
My colleague Tyrone Thomas, was quoted in the Bloomberg BNA article entitled Managing Bias Risks While Increasing Workplace Diversity in which he analyzes the threat of reverse racism claims arising from employer diversity efforts. Thomas notes that diversity strategies should be tailored to the workplace and provides steps for employers to develop well-crafted diversity plans. The article outlines examples of reverse bias claims, methods to avoid these risks, and employers’ options in implementing diversity strategies.
Yes I realize that had my Corporate Divorce series progressed in a linear way, I would have started with The Courtship instead of The Break Up, but employment law metaphors are sometimes unpredictable. In my defense, I note that if you end up in divorce, you must have started with marriage, so there is a certain logic to this after all.
Marriage typically (though not always) starts with courtship, which is the “wooing of one person by another” and the “period during which such wooing takes place.” It occurred to me that the marriage metaphor is particularly apt for the very unique “wooing” that takes place during the employment recruiting process. And, like the courtship process, there is, during this time, some significant insecurities regarding how a love interest (or a prospective employer) might actually feel about you. An employer’s feelings toward a recruit are often, though not always, expressed through financial and other tangible benefits.
How do you test that theory without turning off your suitor? The answer is to use your courtship period to your financial benefit without spoiling the mood. It can be done but it must be done with care.
A “no fault” divorce permits a spouse to end a marriage for any reason or no reason at all – its label accurately advertises its results. In fact, in most states, once you satisfy the residency requirements, you can end a marriage surprisingly quickly in the absence of financial or custody disputes. At will employment operates in a similar way.
Welcome to the latest installment in my corporate divorce series. In my last article I gave some practical advice about how to handle an unexpected firing – a corporate break-up. Now I’m moving to the other end of the employment life cycle: hiring and negotiation of the employment contract.
Written by David Cohen with Michael Arnold
Since 2012, many states have enacted laws that restrict an employer’s capacity to access employees’ personal email and social media accounts. Last month, Connecticut joined the party and became the 21st state to enact an employer-employee social media privacy law.