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


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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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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


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The Sixth Circuit Rules an Employer Violated Title VII by Terminating its Transgender Employee

By R. Joseph Stennis, Jr.Business people walking together in the city

On March 7, 2018, the United States Court of Appeals for the Sixth Circuit reversed a district court decision and ruled in favor of a transgender employee who claimed she was terminated by her employer based on her sex pursuant to Title VII of the Civil Rights Act of 1964.  Aimee Stephens, formerly known as Anthony Stephens, worked as a funeral director at R.G. and G.R. Harris Funeral Homes, Inc.  The funeral home had a dress code policy, requiring male employees to wear suits and female employees to wear skirts and business jackets.  The funeral home provided free suits to the male employees, but did not (at least initially) provide female employees with any clothing to comply with the company’s dress code policy.  Stephens informed the funeral home that she would be transitioning from male to female and therefore would begin to dress to be in compliance with the company’s dress code for females.  Shortly thereafter, Continue reading


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Retaliation Still the Most Filed Charge with the EEOC: How Employers Can Guard Against Costly Retaliation Claims

By Sharon Gold

The EEOC released its fiscal year charge data and for another year in a row, retaliation is the most filed charge.  Behind retaliation are charges for race, disability and sexual discrimination.  The full list of charge data is:

  • Retaliation: 41,097 (48.8 percent of all charges filed)
  • Race: 28,528 (33.9 percent)
  • Disability: 26,838 (31.9 percent)
  • Sex: 25,605 (30.4 percent)
  • Age: 18,376 (21.8 percent)
  • National Origin: 8,299 (9.8 percent)
  • Religion: 3,436 (4.1 percent)
  • Color: 3,240 (3.8 percent)
  • Equal Pay Act: 996 (1.2 percent)
  • Genetic Information: 206 (0.2 percent)

[These percentages add up to more than 100 because some charges allege multiple bases.]

Any employer who has been through litigation concerning a retaliation claim knows Continue reading


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Second Circuit Recognizes Sexual Orientation Discrimination as Subset of Sex Discrimination under Title VII

By Courtney Samford

The U.S. Court of Appeals for the Second Circuit recently held that Title VII prohibits discrimination on the basis of sexual orientation in Zarda v. Altitude Express, No. 15-3775 (2d Cir. 2018).  With this decision, the Second Circuit joins the Seventh Circuit as the second court to recognize sexual orientation as a protected class under federal law.

Donald Zarda was a skydiving instructor who claimed that he was terminated from his position after he told a client that he was gay.  He sued his former employer and its owner, alleging that Title VII and New York law prohibit discrimination based on sexual orientation.  The lower court granted partial summary judgment in favor of the employer on the ground that Title VII does not protect gay and lesbian employees.  Zarda died in a skydiving accident prior to trial, so Continue reading


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Employers Beware! You Can Now Be Sued for What you Say in Unemployment Proceedings

By Mitzi Wyrick

Based on a recent court ruling, what you say in unemployment proceedings can now lead to a lawsuit.  In Hickey v. General Electric Company, 2017-SC-000135-CL, the Kentucky Supreme Court held in a unanimous opinion that employers may be sued for making false statements during unemployment proceedings.  This ruling means that employers may have to face a claim for punitive damages if they are found to have made a false statement during an unemployment proceeding.Employee-Termination

The dispute arose over whether Logan Hickey voluntarily quit his employment or was fired.  Hickey was hired to work the first shift on the production line at General Electric Company (“GE”) in May 2015.  At the time he applied, Hickey stated that he was capable of and available for work on any shift.  In August 2015, Hickey was reassigned to a second-shift position.  After working several days, Hickey claimed Continue reading