Several states have recently modified their Equal Pay Acts, increasing the scope of those laws. For example, California eliminated its requirements that to be actionable, the wage differential must be within the “same establishment” and the work must be “equal.” Rather than being “equal” the work must now be “substantially similar” and the modified establishment language means that the prohibition could potentially apply across an entire business, not merely to a single physical location.  (Cal. Laws 2015, Ch. 546). Similarly, New York modified its law so that the term “same establishment” is now defined as workplaces in the same geographic region no larger than a county. (N.Y. Laws 2016, Ch. 362). In Massachusetts, a recent change to the law (effective 1/1/2018) will prohibit employers from requesting salary history during the job interview process. The new legislation also updates the definition of “comparable work” to clarify that it means work that is substantially similar in skill, effort, and responsibility. (Mass. Laws 2016, Ch. 177).

John Stone, Senior Attorney, National Legal Research Group

     It is commonly understood that substantive agency regulations that are promulgated pursuant to statutory authority typically have the "force and effect of law." See Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1204 (2015). That does not mean, however, that for all purposes and in all contexts, a law is the same as a statute, and vice versa.  The point is illustrated by a recent decision by the Court of Appeals for the Federal Circuit, where the presence of a one-letter word, "a," was a part of the court's reasoning. Rainey v. Merit Sys. Prot. Bd., No. 2015-3234, 2016 WL 3165617 (Fed. Cir. June 7, 2016).

     A Foreign Affairs Officer in the Department of State was relieved of his duties as a contracting officer representative. The officer filed a complaint with the Office of Special Counsel, alleging that his duties had been taken away because he had refused his supervisor's order to tell a contractor to rehire a terminated subcontractor. He argued that his refusal was based on his view that carrying out the order would have required him to violate a federal regulation, by improperly interfering with personnel decisions of a prime contractor and requiring the prime contractor to operate in conflict with the terms of the contract.

The Lawletter Vol 41 No 5

Anne Hemenway, Senior Attorney, National Legal Research Group

     Under the Equal Pay Act, 29 U.S.C. § 206(d), no covered employer shall discriminate on the basis of sex by paying wages to employees at a rate less than the rate paid to employees of the opposite sex for equal work. In Hesterberg v. Tyson Foods, Inc., Case No. 5:14-CV-05382, 2016 WL 483017 (W.D. Ark. signed Feb. 5, 2016), the court held that to establish a prima facie claim for damages under the Equal Pay Act, the complaining party must show by a preponderance of the evidence that "(1) she was paid less than a male employed in the same establishment, (2) for work on jobs requiring skill, effort and responsibility, (3) which were performed under similar working conditions." Id. at *5. The employer will be entitled to summary judgment and dismissal of the equal pay suit if it can show that any pay differential between the plaintiff and her male counterpart is explained by a statutory defense such as a merit system or some excuse other than sex.

     The plaintiff in the case alleged that her immediate supervisor, who was male, had total discretionary authority over the amount of bonuses paid and percentage raises given to her and her male counterparts and that his decisions regarding these forms of compensation were largely subjective. She argued that her comparatively lower bonuses and percentage raises in the years in question were the result of the males' being treated more favorably. Recognizing that employers can "easily circumvent the Equal Pay Act by relying substantially on bonuses to compensate employees," id. at *6, the court denied the employer's motion for summary judgment. Genuine issues of material fact existed as to whether the employer's merit system, on which the employer relied to justify the pay differential in this case, had been implemented at the company in a truly nondiscriminatory way.

The Lawletter Vol 41 No 5

Suzanne Bailey, Senior Attorney, National Legal Research Group

     A recent case from the Second Circuit Court of Appeals sets forth new Second Circuit standards for addressing certain issues under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601–2654, and the employment discrimination provisions of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12111–12117, and provides a set of facts on how not to respond to an employee's request for FMLA leave. Graziadio v. Culinary Inst. of Am., No. 15-888-CV, 2016 WL 1055742 (2d Cir. Mar. 17, 2016).

     The plaintiff, Cathleen Graziadio, had been employed at the Culinary Institute of America ("CIA") as a Payroll Administrator for five years on June 6, 2012, when she notified her direct supervisor that she needed to take FMLA leave to care for her 17-year-old son, who had been hospitalized as a result of previously undiagnosed Type I diabetes. At Graziadio's request, the necessary FMLA paperwork was forwarded to her by the appropriate employee. Graziadio returned to work on June 18, 2012, and on or about June 27, 2012, she submitted a medical certification supporting her need for leave to care for the 17-year-old son. That same day, June 27, Graziadio's 12-year-old son underwent surgery after having fractured his leg playing basketball, and Graziadio promptly notified her supervisor that she would need immediate leave to care for her son and that she expected to return the week of July 9 at least part-time. On July 9, Graziadio responded to her supervisor's request for an update, stating that she would need to work a reduced, three-day-week schedule until mid-to-late August and could return on Thursday, July 12, if that schedule were approved. She also asked, as she had in prior emails, if there was "any further documentation that [the CIA] may need from me." Id. at *1. At this point, the supervisor reached out to the CIA's Director of Human Resources, and matters got complicated.

The Lawletter Vol 41 No 4

Dora Vivaz, Senior Attorney, National Legal Research Group

     It has long been settled law that plaintiffs who seek redress for employment discrimination under Title VII must exhaust the administrative remedies provided under that law before bringing their claims in court. Title VII, of course, not only prohibits the initial unlawful status/class discrimination, but also prohibits retaliation for complaining about such discrimination. The interplay of those two prohibitions has seemingly muddied the waters on the exhaustion issue.

     In a recent case, a federal district court within the Fifth Circuit was faced with the question of that interplay. Mitchell v. Univ. of La. Sys., Civ. Act. No. 13-820-JWD-RLB, 2015 WL 9581823 (M.D. La. signed Dec. 30, 2015). In the case before it, the plaintiff had filed an Equal Employment Opportunity Commission ("EEOC") charge in June 2013, claiming discrimination. She was transferred in July 2013. Although she never filed a second EEOC charge, she included both a claim for unlawful discrimination and a claim for retaliation in her action in the federal court. The defendant argued that the retaliation claim was barred for failure to exhaust administrative remedies, but the court disagreed.

The Lawletter Vol. 41, No. 2

John Buckley, Senior Attorney, National Legal Research Group

     Title VII of the Civil Rights Act of 1964 was amended by the Pregnancy Discrimination Act ("PDA") in 1978, which added the following language to Title VII's definitions subsection:

     The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes[.]

42 U.S.C. § 2000e(k). It is generally agreed that the first clause specifies that Title VII's prohibition against sex discrimination also applies to discrimination based on "pregnancy, childbirth, or related medical conditions." The meaning of the second clause, "or related medical conditions," has been the subject of debate and was directly addressed by the Supreme Court in this most recent case.

     In Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015), the petitioner, Peggy Young, was a part-time driver for the respondent, United Parcel Service ("UPS"). Young became pregnant in 2006 and was placed on a 20-pound lifting restriction by her doctor. (UPS policy required drivers to be able to lift parcels weighing up to 70 pounds.) UPS failed to provide suitable accommodations, and as a result, Young was forced to take an unpaid leave of absence during most of the time she was pregnant, resulting in the loss of her employee medical coverage.

The Lawletter Vol 40 No 10

Matt McDavitt, Senior Attorney, National Legal Research Group

     It is well settled under workers' compensation law nationally that, generally, worker injuries occurring coming to, or going from, work are not compensable in nature. However, an important exception to this rule exists regarding accidents in which workers are traveling in employer-supplied vehicles, where the worker is off duty but remains on call. For example, given that city police departments receive a benefit by having their police officers on call for duty at a moment's notice while driving their police cruisers, so long as the travel has some relation to employment, injuries received during such travel are compensable.

[W]e are satisfied that the City enjoyed sufficient benefits from Ms. Ross's participation in the take-a-car-home program to affirm the Commission's determination of eligibility. The City does not dispute the Commission's conclusion that the City benefitted from the program by having more officers available for immediate response, from better care of patrol cars, and from increased police visibility. Officers with take-home cars were prepared to respond to emergency calls at any time. These officers always had at hand those items required to be kept in the take-home patrol cars, including their service gun, police radio, identification, flashlight, ticket book, report forms, and flares.

The Lawletter Vol 40 No 5

Anne Hemenway, Senior Attorney, National Legal Research Group

     Workers' compensation claims are often straightforward where the worker has suffered a clear work-related injury in the jurisdiction in which the employer is located. Where a worker has been injured in a work-related accident while traveling in a different state for work, however, different jurisdictions impose specific jurisdictional restrictions notwithstanding the workers' compensation insurance contract. See McIlvaine Trucking, Inc. v. Workers' Comp. Appeal Bd. (States), 810 A.2d 1280 (Pa. 2002) (holding that where a worker who regularly traveled to other states for work was injured in Pennsylvania, the parties' agreement to be bound only by the West Virginia Workers' Compensation Act was unenforceable as against Pennsylvania public policy, which requires in-state workers' injuries to be governed only by the Pennsylvania workers' compensation laws).

Dora Vivaz, Senior Attorney, National Legal Research Group

     Inferences have always played an important role in the analysis of discrimination cases, because direct evidence of discrimination is rare, and such cases, therefore, most often depend on circumstantial evidence. Accordingly, a plaintiff may establish a prima facie case of discrimination by showing circumstantial evidence sufficient to support an inference of discrimination. By the same token, the evidence may allow inferences that benefit the defendant.

     In the employment discrimination context, one such inference is the "same actor inference," which allows the factfinder to infer that when the person who took the adverse employment action against the plaintiff is the same person who hired the plaintiff, the adverse action was probably not based on unlawful discrimination. As the court noted in a recent case, there is a split amongst the circuits as to whether the inference is mandatory or permissive and as to whether it may be relied upon as a basis for summary judgment. See, e.g., Garrett v. Sw. Med. Clinic PC, No. 1:13-cv-634, 2014 WL 7330947 (W.D. Mich. Dec. 19, 2014) (text available only on Westlaw).