Wyatt Employment Law Report


Should Salary History be History? Circuit Court Holds Past Salary History Cannot Justify Unequal Pay

By Sharon L. Gold

In Rizo v. Yovino, the Ninth Circuit Court recently held that an employer cannot use an employee’s prior salary history as a ‘factor other than sex’ upon which a wage differential may be used under the Equal Pay Act.  The EPA prohibits employers from paying women less for the same job unless the difference is based on merit, seniority, quantity or quality of work or the catchall “any other factor other than sex.”  The court held that salary history was not a legitimate factor that was related to the job, and instead, employers should use factors such as experience, training, education or prior performance to set wages.  The en banc decision was unanimous.

This decision comes amid several states banning salary history as a permissible factor upon which to base pay.  According to the Department of Labor, women in the U.S. make on average 82 cents to a dollar of what men make in comparable jobs.  Proponents of banning the “salary history” question claim that Continue reading


Should Your Company “Ban the Box”?

By Lexy Gross

There’s a question on most job applications that will make a candidate sigh in relief or disappointment, with no middle ground: “have you ever been convicted of any misdemeanor, felony, or other crime?”  If you check the “yes” box, you know there’s little chance you’ll get a call back, much less an interview.

Of course, there are variations of this question, but regardless of its form, it’s led to an outcry from activists to “ban the box.”  Former President Barack Obama explained in 2015 that Americans who have paid their debt to society should have better access to a second chance in their job search.  In 2017, Kentucky Governor Matt Bevin challenged private employers to ban the box on their job applications after he signed an executive order stopping the practice in state agency hiring.  Some state legislatures and jurisdictions Continue reading


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Scotus Has Spoken: Arbitration Contracts Barring Class Actions are Lawful

By R. Joseph Stennis, Jr.

In a narrow 5 – 4 ruling, the United States Supreme Court (“SCOTUS”) finally put to rest yesterday an antagonistic class action waiver issue that has been brewing in various federal circuit courts for the past six years. In  the opinion, (written by Trump Administration appointee Justice Neil Gorsuch), the Court upheld the use and enforceability of class action waiver language contained in employment arbitration agreements.   Relying heavily on the language contained in the Federal Arbitration Act (“FAA”), the Court reasoned that “Congress has instructed federal courts [by way of the FAA] to enforce arbitration agreements according to their terms – including terms providing for individualized proceedings.”  The Court rejected the notion that arbitration agreements violate the ‘concerted activities’ clause of the National Labor Relations Act (“NLRA”) by concluding, “[the NLRA] does not mention class or collective action procedures.  It does not even hint at a wish to displace the Arbitration Act.”

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Worksite Immigration Enforcement

By Glen Krebs

Seven months ago, U.S. Immigration and Customs Enforcement (“ICE”) Deputy Director Thomas Homan issued a directive that called for increased worksite enforcement investigations to ensure U.S. businesses maintain a culture of compliance.  ICE recently announced that the agency’s Homeland Security Investigations (“HSI”) has already doubled the amount of ongoing worksite cases this fiscal year compared to the last fully completed fiscal year.

From Oct. 1, 2017, through May 4, 2018, HSI opened 3,510 worksite investigations; initiated 2,282 I-9 audits; and made 594 criminal and 610 administrative worksite-related arrests, respectively.  In comparison, for the entire 2017 fiscal year – from October 2016 to September 2017 – HSI Continue reading


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Federal Appellate Court Extends ADEA to Job Applicants

By Thomas E. Travis

On April 26, 2018, the U.S. Court of Appeals for the Seventh Circuit ruled that portions of the Age Discrimination in Employment Act (“ADEA”) protect job applicants, in addition to internal employees.

Dale Kleber, a 58-year old attorney applied for a legal position with CareFusion, a healthcare product company.  The job posting called for a “business person’s lawyer” capable of “assum[ing] complex projects.”  The position’s qualifications required “3 to 7 years (no more than 7 years) of relevant legal experience.”  CareFusion reviewed Kleber’s application, but ultimately hired a 29-year old applicant.  Kleber filed a charge of age discrimination regarding the 7-year maximum experience cap with the Equal Employment Opportunity Commission, who issued Kleber a right-to-sue letter in 2014.

In turn, Kleber Continue reading


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Can Your Employees Bring Firearms to Work?

By Julie Laemmle

no gunsGuns-at-work laws generally limit a private employer’s ability to prohibit its employees from bringing concealed firearms to the workplace.  These laws are state-specific, as there is currently no federal law that regulates weapons at private workplaces.

States that have statutory guns-at-work laws covering private employers include: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Nebraska, North Dakota, Ohio, Oklahoma, Tennessee, Texas, Utah, and Wisconsin.

States that do not have statutory guns-at-work laws covering private employers include: California, Colorado, Connecticut, Delaware, Hawaii, Iowa, Maryland, Massachusetts, Michigan, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Vermont, Virginia, Washington, West Virginia, and Wyoming.

What do guns-at-work laws do?  Guns-at-work laws serve Continue reading


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Workplace Romances: Avoiding Liability from Office Secrets

By Sean G. Williamson

Spring has sprung.  The birds are singing, the flowers are blooming.  And some of your employees may be in the midst of budding romances – or continuing longtime relationships.  A recent employee survey by Namely highlighted the prevalence and secrecy of office romances.¹ Forty percent (40%) of Namely’s survey respondents indicated that they had engaged in an intimate relationship with a coworker.  However, less than 5 percent of all respondents stated that they would tell Human Resources if they were involved in a workplace relationship.  Even if an employer’s policy required employees to report relationships to HR, only 42 percent said they would comply.  (That 42 percent seems optimistically high, given the mere 5 percent of respondents who indicated they would tell HR in the first place.)

The take away – which may come as no surprise – is that employees have Continue reading