The President Weighs In

President Obama turned up the heat this week, issuing a statement urging Congress to pass the Act. Here it is:

In America today, women make up half of the workforce, and two-thirds of American families with children rely on a woman’s wages as a significant portion of their families’ income.

Yet, even in 2010, women make only 77 cents for every dollar that men earn. The gap is even more significant for working women of color, and it affects women across all education levels. As Vice President Biden and the Middle Class Task Force will discuss today, this is not just a question of fairness for hard-working women. Paycheck discrimination hurts families who lose out on badly needed income. And with so many families depending on women’s wages, it hurts the American economy as a whole. In difficult economic times like these, we simply cannot afford this discriminatory burden.

My Administration has already begun to address this problem. In my first week in office, I signed the Lilly Ledbetter Fair Pay Act, which helps women who face wage discrimination recover their lost wages, and in my State of the Union Address, I promised to crack down on violations of equal pay laws. Today the Equal Pay Enforcement Task Force will present its recommendations, which include ways to better coordinate among enforcement agencies and inform employees about their rights. These steps support women, and they also support businesses that are doing the right thing and paying their employees what they deserve.

We cannot do this work alone. So today, I thank the House for its work on this issue and encourage the Senate to pass the Paycheck Fairness Act, a common-sense bill that will help ensure that men and women who do equal work receive the equal pay that they and their families deserve. Passing this bill is one of the Task Force’s key recommendations, and I hope Congress will act swiftly so that I can sign it into law.

Republican Response

Not too surprisingly, Republicans and business leaders expressed a different view. The U.S. Chamber of Commerce said the Act is likely to “burden America’s businesses with frivolous litigation during already trying economic times.” It also said that the Act would “expand remedies under the Equal Pay Act (EPA) to include unlimited punitive and compensatory damages, significantly erode employer defenses for legitimate pay disparities, and impose invalid tools for enforcement by the Labor Department.”

Michael Steel, spokesperson for House GOP leader John Boehner, had even stronger words. He dubbed the bill “a cruel hoax.” “It won’t empower women who face pay discrimination,” he said, “but it will empower trial lawyers whose junk lawsuits will clog up the courts and make it hard for businesses to grow and hire.”

Stay tuned to see how this plays out.

Here’s what we asked . . .

Women now make up the majority of the workforce and the vast majority of college attendees. Recent studies show that wage disparities appear to be narrowing. In the not-so-distant future, the U.S. will be more than 50% non-white. The Supreme Court and even the Oval Office reflect more diversity than ever before. So, when will Title VII be repealed?

Here are your responses . . .

a.  By the end of the year (1%)
b.  By the end of the decade (13%)
c.  By 2030 (7%)
d.  By 2050 (3%)
e.  Never (76%)

So, the vast majority of you feel that Title VII will never be repealed. I tend to agree.

Setting aside some of the obvious political reasons (not a whole lot of politicians are likely to want to raise their hand and say “I’m against discrimination laws”), there’s still quite a bit of work to do before true equity will rein in the workplace.

Among other things, women still only earn 77¢ for every $1 earned by men. Despite the fact that women now constitute a majority of the workforce, only 3% of CEOs and 13% of executive officers are women. Given those statistics, it’s not too surprising that 60% of men responded “yes” to a recent poll asking, “Are barriers to female success gone?” Only 50% of women said “yes.”

Thanks for your participation. Our next Question of the Week will be coming your way soon.

(Sources: Bureau of Labor Statistics, Catalyst, TIME Magazine)

The Story

CNN fired Mideast correspondent Octavia Nasr — a 20-year employee — after she tweeted her admiration for the recently deceased Grand Ayatollah Mohammed Hussein Fadlallah. Fadlallah, considered a founding father of the Hezbollah movement, was aggressively anti-American and was allegedly linked to bombings that killed several hundred Americans.

In her tweet, Nasr called Fadlallah “one of Hezbollah’s giants I respect a lot.” After negative reactions poured into CNN, the company issued a statement calling Nasr’s tweet an error in judgment.

Nasr apologized, saying in a blog that her tweet was intended to refer to Fadlallah’s record on women’s rights. During his tenure, Fadlallah banned “honor killing” of women and authorized women the right to strike their husbands if attacked. Nasr admitted that using Twitter’s 140-character-max format to comment on the life of such a controversial a figure probably wasn’t the best idea, calling it “something I deeply regret.”

Despite Nasr’s apology, CNN decided that her credibility had been irreversibly compromised. It issued an announcement stating that after it discussed the incident with Nasr “we have decided that she will be leaving the company.”

What This Means for Employers

Employers should be keenly aware of the humongous negative publicity that can be generated by Twitter tweets and other social media activity by employees. Employees should be trained on the potential career-limiting effects of such posts. Time and time again employees get themselves (and their employers) in trouble because they seem to believe that less traditional forms of electronic communication are (1) subject to different workplace rules and/or (2) somehow less permanent. As many employers and employees have painfully discovered in recent months, neither is true.

Here’s  a link to our sample social media policy.

What’s it all mean? Here’s the latest . . .

Virginia’s Suit

Late last week, lawyers in Virginia argued the first such case to hit the courtroom. More than twenty other states are pursuing similar suits.

“It is our position that the individual mandate is unconstitutionally overbroad under the commerce clause,” said Virginia Attorney General Ken Cuccinelli. “You cannot compel someone to buy something from someone else.”

As currently drafted, PPACA requires individuals to either buy health insurance or pay a penalty.

Florida Sues, Too

The largest suit is one led by Florida and joined by nineteen other states.

A lawyer representing Florida called PPACA “an unbelievable, unprecedented, utterly arrogant exertion of congressional power.” The lawsuit alleges that by enacting PPACA the federal government (1) exceeded its authority to direct state action and (2) misused the Commerce Clause of the Constitution by imposing an unfunded mandate.

The Federal Government’s View

Rob Weiner of the U.S. Justice Department sees things a bit differently than the states. “Congress is appropriating billions of dollars that it’s providing to the states for Medicaid and it’s entitled to attach conditions to the billions of dollars it provides.” He added: “This is a very important piece of legislation, but it is not an extraordinary exercise of congressional power.”

What’s Next?

The judge in the Virginia case indicated that he intends to issue his initial ruling in the next few weeks. Initial arguments in the Florida suit are scheduled for September.

Given the timing, rulings in the cases could have a significant effect on the November elections. Ultimately, however, these cases will probably end up on the U.S. Supreme Court’s docket in the not-so-distant future.

Stay tuned to see how this plays out. For more, click here.

Thanks to the wonders of modern technology, HR professionals now have a powerful new weapon in their never-ending battle against offensive workplace behavior: Pepper Mouth.

This new gadget plugs into any computer and is able to detect whenever the user uses offensive language. Type in a bad word and you get a bad smell — a stink bomb canister hooked up to the device lights up and emits a foul odor.

According to the device’s inventors, “There [have] recently been many incidents where people got in trouble for the language they use in social media sites. Maybe when your ‘bad language’ disturbs you with a bad smell, you will start to understand that it might also have other, more serious consequences.”

Goldman Sachs’ HR Department probably wishes the device had been invented a few years ago. Congress recently pounded its execs over an internal e-mail that referred to one of its controversial transactions as “one sh*#%y deal.”

Supreme Court nominee Elena Kagan also could have used the device. The New York Times ran a report detailing her creative use of “the two most common swear words” in e-mails sent during her years in the White House.

So, does Pepper Mouth really work? “The smell is very persistent,” cautions the product’s web site. “Just like things you type and send, it is there to stay.” I plan to order my very own as a public service and will publish my reactions asap.

In the meantime, for a slightly less over-the-top way to prevent inappropriate workplace communications click here for our sample social media policy.

I’ll be presenting Everything You Ever Wanted to Know About Employment Law (But Didn’t Want to Pay a Lawyer to Ask) Wednesday June 30 at 10:00 a.m. I’ll give you all the latest employment law developments in an entertaining and educational quiz show in which participants compete for valuable prizes. Should be fun.

If you’d like the Blawg Tour to consider swinging by your town, please email us at blawg@manpower.com.  We’ll do everything we can to accommodate your request. Generally, we like to shoot for audiences of 100 or more but will make exceptions if you are (a) located in a warm climate, (b) near a golf course and (c) the date is in Winter (which in Wisconsin lasts approximately eleven-and-a-half months).

The Big Picture

In City of Ontario v. Quon, the court addressed the question of whether a public employer may monitor employees’ personal use of company-provided computers and cell phones. The Court answered “yes” — as long as the employer has a “legitimate work-related purpose.”

But the court made it clear that it is stepping ever-so-gingerly into what it called the “electronic sphere.” It declined to set bright-line standards and did not expressly extend the ruling to include non-government employers. That said, the case offers intriguing insights into what approaches the Supremes (and other courts) could take in the future on similar issues.

The Facts

The Supremes ruled that the City of Ontario’s search of “sexting” and other messages sent by Jeff Quon, a SWAT team officer, to his wife and mistress did not violate his constitutional protection against unreasonable searches. While Quon had a limited “expectation of privacy,” the court found that the employer’s review was justified under the circumstances.

Like many employees, Quon was (1) warned that he should expect no privacy when using company equipment but that (2) a limited amount of personal use was acceptable. The department set a monthly limit on allowable texts, telling employees that would have to pay for any beyond that amount.

When Quon repeatedly exceeded the monthly allotment, his boss got sick of collecting the extra fees and ordered records from the texting provider. When it got the records, the department was careful to remove Quon’s off-duty texts from consideration. When it discovered that most of Quon’s on-duty texts were personal (a whopping 400 out of 456 in one month alone), he was “allegedly disciplined.” Quon sued, claiming protection from unreasonable searches under the Fourth Amendment.

No Clear Standard

Two lower courts agreed with Quon. But not the Supreme Court. It concluded that Quon shouldn’t have assumed that his texts “were in all circumstances immune from scrutiny.”

Justice Kennedy ruled that the department’s search was reasonable and not intrusive, particularly since it didn’t consider Quon’s off-duty texts in making its decision. But the court backed away from issuing clear standards for employers to follow in future cases.

“Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification,” wrote Kennedy. “That might strengthen the case for an expectation of privacy.” However, Kennedy also said that because cell phones and other devices are so cheap, employees should consider buying their own if they really want to be free from employer intrusion.

Justice Scalia agreed with the majority opinion but had some tough words for his fellow justices. “The Court’s implication that where electronic privacy is concerned we should decide less than we otherwise would . . . or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions is in my view indefensible,” he wrote. “The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.”

What Does This Mean for Employers?

Not much has changed. Employers should continue to have reasonable computer, etc. usage policies in place that are consistently enforced. Put the policy in writing, communicate it to employees and have them sign a written acknowledgement. Anything less could lead to employee privacy claims.

For a sample policy, click here.

THE WORLD CUP

What’s the Big Deal?

Many Americans still lag far behind the rest of the world in their appreciation of this once-every-four-years spectacle. But some are catching on. Given the fact that virtually every game is available online has spurred debate among HR folks and employment lawyers about how to approach its potential impacts on the workplace.

The USA plays Algeria @ 10:00 a.m. Eastern today in a match that will decide whether they move on or go home. That means that many of your employees are likely to start mysteriously disappearing around 9:57 or so.

What Should Employers Do?

You have essentially three options: (1) ignore the hoopla, (2) try to stop it or (3) embrace it. The following is a detailed and highly scientific analysis of each of those approaches, along with our recommendations.

Ignore the Hoopla. This is the option selected by most employers. They act as if what is arguably one of humankind’s most significant events never even happens. They can’t figure out why employee attendance suddenly drops precipitously or why the few employees who actually come to work start traveling in packs wearing the colors of various national flags and disappearing into conference rooms from which occasional shouts of GOOOOOOOOOOOOOOOAAAAALLLLLLLLLL and mind-numbingly loud horn-blowing (vuvuzelas, for the uninitiated) can be heard. These employers are also surprised when the hopelessly overloaded IT system blows up, prompting a mass exodus of employees in search of the nearest sports bar. The Verdict?  Not recommended.

Stop the Hoopla. Due to IT and productivity concerns, some employers try to put an end to the madness by banning all employees from even thinking about soccer in the workplace. Some even put fancy filters on their IT system to prevent employees from watching the games online. Typically, however, these employers’ computer systems will be just fine even without the filters because only a handful of employees will show up for work. The Verdict?  Not recommended.

Embrace the Hoopla. Some forward-looking employers take advantage of the event and make an effort to incorporate it into the whole work experience. To avoid IT meltdowns, they set up TVs in key gathering areas for certain games and encourage employees to do some bonding while whooping it for their favorite teams. Good feelings abound and grateful employees put in extra hours out of gratitude to the company. In fact, here’s an intriguing article on how employers can use such events to trigger meaningful conversations about diversity in the workplace. The Verdict?  Highly Recommended.