Employment Testing Can Backfire

Conservative columnist George Will this week (Monday) wrote a column in which he traced the widespread requirement for college degrees for jobs just about anyone could do to the Civil Rights Act of 1964 and subsequent interpretations and enabling legislation.

Under Will's telescope, the problem was that courts and juries began finding that employment tests, whether intentionally or not, often resulted in skewed results whereby certain classes of people would do better than others. Thus the tests discriminated, willy-nilly or no.

The solution for employers, according to Will, was simply to require that employees have college degrees for jobs beyond the routine and mundane. Certainly, the jump in those attending college in recent years might be an indicator of this, although technologically advanced work sites and workloads could be another factor.

At any rate, this brings up the interesting story of firefighters in Akron, Ohio, who had to take a test for advancement. Somehow, the results skewed against those firefighters who were either white or over 40. The 23 affected firefighters sued, and the jury agreed, awarding them a $2-million judgment.

If there's a lesson here, it's "don't give tests," though that seems like a ridiculous approach to screening employees for skill sets. Problem is, courts and juries base judgments on results, not on intent of the tests, and even if the results are random, they can still lead to findings of discrimination.

If you're an employer, you may want to delve into both the Employee Communication and Compliance Handbook and the Employee Handbook and Personnel Policies Manual from Personnel Concepts.

Lilly Ledbetter Rides Into Congress

Well, not literally, but the woman whose name is attached to a famous Supreme Court decision did speak at last summer's Democratic National Convention.

Her name is also attached to a bill that, according to the New York Times, is on a Democratic fast track for approval and, no doubt, a signature by Barack Obama once he's in the White House.

The Lilly Ledbetter Fair Pay Act greatly modifies the Ledbetter v. Goodyear Tire & Rubber Co. decision, which held that the statute of limitations on pay discrimination cases runs from the moment the decision is made on the discriminatory pay.

Poor Lilly filed her claim after the statute had run its course, and her lawyers were unsuccessful in arguing that the original decision lives on in each paycheck.

You guessed it. Congress is now legislating that the statute does just that--begins anew each time the discriminated employee receives a paycheck or is affected by the original decision.

Republicans filibustered Lilly out of the Senate last year, but with the Democrats only one vote from foolproof cloture-closing power, she (the law) stands a good chance this year.

Indeed, ending filibusters by the GOP over its cadre of labor-friendly bills, including the Employee Free Choice Act (EFCA), may be one reason the Dems are now warmly embracing Illinois Senate appointee Roland Burris after denying him a seat yesterday, though they'd certainly never own up to it.

Anyway, employers won't have many options now if they discriminate in pay (i.e., pay different people different wages for performing the exact same work, provided they have the same qualifications and seniority (I assume on these last two provisions, though I'm certainly not a legal expert by any means).

So, Lilly Ledbetter may never have gotten the pay she deserved from Goodyear, but she'll now be the bane of every employer in America, at least those who disciminate in pay.

New Year Ushers in Minimum Wage Hikes

Two cities and 11 states are raising their minimum wage laws on Jan. 1, 2009, with Washington topping the state list at $8.55 per hour, and the City of Santa Fe besting everyone at $9.92 an hour (San Francisco just behind that at $9.79).

The federal rate will go to $7.25 on July 24, raising many other states' rates in the process (including both Florida and Arizona, which are raising their hourly wage requirement on Jan. 1 but no to that level).

Here's a complete rundown on the Jan. 1 wage increases.

Employers, check your requirements and get the posters you need with this state-by-state labor law posting checklist.

Song Parody: 'This Is Why You Are Fired'

A little gallows humor when times are tough never hurts, I guess, especially when it comes in the form of lyrics rewritten for Billy Joel's "We Didn't Start the Fire," which was then retitled "This Is Why You Are Fired."

VIEW THE LYRICS

If You Like EFCA, You'll Love Its Siblings

The Employee Free Choice Act (EFCA), which would allow union organization merely by the collection of enough signatures--called card check--instead of secret ballots, has been stirring up a hornet's nest of business opposition.

Now, a University of Chicago Law School professor named Richard Epstein has even come out in print blasting the EFCA as unconstitutional on both First and Fifth Amendment grounds. I think he's stretching the First Amendment gambit a bit, but the argument based on the "takings" clause of the Fifth may carry more legal weight.

The takings argument involves the EPCA's provision calling for binding arbitration in case the employer and new union can't agree on a contract. Epstein argues that an arbitrator could mandate provisions that would put the company out of business (setting wages and benefits too high, etc.), and this would invoke the takings-clause protection of the Fifth Amendment.

Anyway, unless the law passes, we'll never get a review of its constitutionality, but in the meantime employers and business owners have a whole panolpy of other liberal-leaning legislation to fear and oppose.

Let's look at some of them:

RESPECT Act: Redefines how much time a person must spend supervising to be categorized a supervisor to make more employees eligible for unionization while shrinking the ranks of potential opponents.

Lilly Ledbetter Fair Pay Act: Gets a tad technical but basically stretches the time frame for filing discrimination claims almost into infinity.

Employment Non-Discrimination Act: Adds sexual orientation and gender identity as protected classes.

Civil Rights Act of 2008: A grab bag of statutory changes that prohibits mandatory arbitration agreements between employees and employers and removes caps on monetary claims in lawsuits, among other far-ranging goodies.

Working Families Flexibility Act: Reguires good faith negotiations with any employee who desires a different work schedule--days of work, hours of work and location of work. (Makes it hard for the employer to say no as well.)

FOREWARN Act: Takes the WARN Act (see recent Republic Windows and Doors incident) and lowers coverage to companies with 50 or more employees (down from 100), raises advance-notice of layoffs/closing bar to 90 days, and doubles the amount of pay for employees if proper advanced notice isn't given.

Like I said, if you like EPCA, you'll love the whole mix of legislative goodies coming down the pike.

A New Protected Class: Ugliness?

Over at the Ohio Employer's Law Blog, Jon Hyman has an interesting discussion on the proposal to add ugly to the protected classes under labor law and employment laws.

To wit, Hyman writes:

"Under the current state of the law, it is illegal to discharge, to refuse to hire, or otherwise to discriminate with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment because of: race, color, sex, religion, national origin, ancestry, age, disability, genetic information, military status, and veteran status. I am fairly confident that 2009 will add sexual orientation, and possibly gender identity, to this list."

Now, the argument for adding ugly to the protected classes is to prevent discrimination based on looks, of course. Some, maybe most, employers prefer hiring good-looking people as they are perceived to be sharper, sexier and better, more trustworthy workers.

However, since beauty is in the eye of the beholder, how could the courts or regulatory agencies ever agree on how to define ugly so as to have a workable law?

Minimum Wage Laws: Helpful or Hurtful?

It's hard to argue that any law that can potentially elevate people from poverty or substandard living conditions is bad. Such, however, is the case with the minimum wage laws of our nation, which began in 1938 with the Fair Labor Standards Act (FLSA) and have now taken root not only in state legislatures but in city halls as well.

The effectiveness of these laws is--seven decades later--fair game for debate. Some argue that minimum wage laws have no adverse effect on employment of certain groups of people (such as the unskilled and the young), while others maintain that minimum wages reduce employment at the fringes.

A lot of it depends on one's political perspective and/or business involvement (owner, manager, et al.).

Now comes a book by a professor of economics at UC Irvine and an associate director of research for the Federal Reserve, which argues that minimum wage laws indeed lower employment and reduce (not raise) wages overall.

In Minimum Wages, David Neumark and William Wascher argue that their two decades of research reveal that these laws do not achieve their goals. Instead, they reduce employment opportunities for less-skilled workers and tend to reduce their earnings; they are not an effective means of reducing poverty; and they appear to have adverse longer-term effects on wages and earnings, in part by reducing the acquisition of human capital.

Still, there's no stopping the political will power to raise the minimum wage. The federal rate will go up to $7.25 next July 24, while states and even municipalities are beating that figure and that onset date with minimum wage laws' taking effect on New Year's Day. Washington is the highest of the states at $8.55 an hour, while San Francisco--at $9.79--and Santa Fe--at $9.92--are highest overall.

I've certainly seen many anecdotal news videos in which business owners say they've already laid someone (or someones) off in anticipation of the new minimum wages, spreading their work around or doing it themselves, to lead me to believe that minimum wage laws can indeed backfire.

However, politics is politics, and the minimum wage phenomenon is here to stay.

Up next--the minimum wage as living wage?