Employment law roundup: Do sexy immigrants who E-verify on Facebook cause obesity?

Posted by Robin E. Shea on May 27, 2011

Happy Memorial Day weekend, everybody! Top stories this week:

When are employers liable for the bad behavior of their customers? The sexual assault charges against Dominique Strauss-Kahn, former head of the International Monetary Fund, who allegedly attacked an African-immigrant maid in his hotel room in New York City, have spurred some interesting discussion about female employees in the restaurant and hospitality industry, and their exposure to sexual harassment. Maid.jpgAccording to some commentary, women in these industries -- particularly housekeeping staff and waitresses -- are seen as "fair game" by certain guests and patrons. The fact that many of the women are also immigrants may make them even more vulnerable to such behavior.

I have to admit I have a personal bias. I believe it. I was a waitress a very long time ago (when sexual harassment was still legal -- does that date me, or what?), and I do remember getting a lot of comments from male customers that I never got in any other job before or after.

Anyway, employers in these industries and others should be aware that they can, under certain circumstances, be liable if their customers harass their employees.

A bit of history/nostalgia: In 1976, our nation celebrated its Bicentennial. It was a big deal -- even Mickey Mouse, Donald Duck and Goofy, and Kiss, got into the act. Around that time, the owner of an office building in New York City (what is it with that town, anyway? Kidding!) decided that it would be a good idea to require female employees to wear a "Bicentennial costume," consisting of an American-flag poncho with big gaps in the sides and nothing under it except undies, hot pants, and sheer pantyhose. The plaintiff, who was a lobby attendant and had not intended to become a worker in the sex industry, complained that the immodest costume caused her to be hit upon. She was eventually fired for refusing to wear it.

(Imagine being scantily-clad against your will in an elevator with some newly-separated middle-aged lecher in aviator glasses and a leisure suit who's just discovered the sexual revolution. And no concealed-carry laws back in those days, either. What a nightmare.)

Anyway, the EEOC sued, and won. The case is a landmark, in part because the court found that even though the sexual harassment was by visitors and tenants, and not the employer, the employer was liable for forcing the women to dress in a way that invited harassing behavior.

You may be thinking, Well, then, why don't we ever hear about waitresses at a business like Hooters suing for sexual harassment? The difference, I think, is the nature of the business and the reasonable expectations of female employees when they go to work. If you choose to work at a place called "Hooters," presumably (WARNING: LINK CONTAINS CONTENT THAT SOME MAY FIND OBJECTIONABLE) you know what you're getting into and assume some amount of risk. This is not to say that a "Hooters Girl" couldn't have a valid claim of sexual harassment, but she is probably not going to be able to assert a claim based only suggestive comments or propositions by customers, or even a pat or two.

By contrast, in the "Bicentennial" case, and in most housekeeping and waitressing jobs, the women are not knowingly taking jobs in an industry in which sex is the "product."

I have not seen any indication that the hotel where Mr. Strauss-Kahn was staying should be liable for his alleged behavior. But employers in the retail and hospitality industries should make sure that they have processes in place to deal with customer harassment, whether it's on the basis of sex, or race, or national origin, or any protected category. Employees should know to report inappropriate behavior by customers and that such behavior will not be tolerated.

State laws requiring E-verify are legal, says Supreme Court.  A 5-3 majority of the Supreme Court upheld yesterday the Legal Arizona Workers Act, which requires employers to use E-verify and allows the state to revoke the licenses of businesses that knowingly hire illegal workers. The plaintiffs, who included the U.S. Chamber of Commerce and immigrants' rights groups, had argued that the Arizona law was preempted by the federal Immigration Reform and Control Act of 1986. Chief Justice John Roberts wrote the majority opinion, joined by Justices Samuel Alito, Anthony Kennedy, Antonin Scalia, and Clarence Thomas. The dissenters were Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor. Justice Elena Kagan recused herself because she had been involved in this case while she was Solicitor General.

Interestingly, the Arizona law had been enacted during the administration of Janet Napolitano, now head of the Department of Homeland Security for the Obama Administration, and upheld by the often-liberal U.S. Court of Appeals for the Ninth Circuit. Immigration politics certainly does make strange bedfellows.

Three other states -- Mississippi, South Carolina, and Utah -- have similar laws, and we can expect to see many more now that the Supreme Court has given them the thumbs up.

NLRB Facebook cases -- have they jumped the shark? The National Labor Relations Board is issuing complaints right and left against employers who have allegedly fired employees for bad-mouthing the employers on Facebook. This has prompted one commenter to ask whether these complaints are even "news" any more. The NLRB's position is that social media postings are often "protected concerted activity." Employers should certainly be aware of the risks of taking action against employees based on their social media postings and should consult with counsel before doing so. But otherwise, it probably does make sense to chill until we get some actual decisions from the Board and the courts.

Obesity, work linked. The other big story in the news this week was that sedentary jobs  . . . make you fat! An obvious point, to be sure, but wouldn't fresh air and exercise during the day be a great wellness initiative? And, does this mean that we can now collect workers' comp benefits for obesity-related diseases, like diabetes and hypertension? Te-he.

9 signs that you'll lose your age discrimination case

Posted by Robin E. Shea on May 20, 2011

My internet friend and worthy adversary Donna Ballman, an employment lawyer who represents plaintiffs, had a good and sad post this week on AOL this week entitled "Nine Signs of Age Discrimination." The comments were especially depressing, from a number of people who said that they'd experienced age discrimination either in losing their jobs, or in their attempts to find jobs.

I've heard a lot "on the street" about the difficulty older workers are having in finding jobs, and I posted a while back on some of the non-discriminatory reasons that might be accounting for thatWoman Sad Older.jpg.

I don't know whether there is an epidemic of age discrimination (I sure hope not), but I would like to present the "defense side" of Donna's nine points. So here are my "9 signs that you'll lose your age discrimination case." Many of these will apply to other types of discrimination cases as well.

Sign No. 1: The person who fired you is the same person who hired you not too long ago. We call this the "same hirer/firer" rule. The courts presume that if, say, Supervisor Mary hired you when you were 58 years old and then fired you when you were 60, your age was probably not the issue -- otherwise, she would never have hired you at age 58 in the first place. (On the other hand, if Mary hired you when you were 35 and then fired you when you were 60, you might have a case. Also, an employee can present evidence to rebut the "same hirer/firer" presumption.)

Sign No. 2: You have been a victim of unfair treatment that is legal. The world is an unfair place, but our legal system can't "redress every wrong," as the judges like to say. In the workplace, things like nepotism, favoritism, consensual workplace sexual affairs, you name it, are definitely NOT COOL but usually not illegal. So, if you lost out on that promotion because your boss wanted his 22-year-old daughter who just graduated with a C+ average from Priscilla Vanderbilt's Finishing School for Rich Young Ladies Who Aren't Smart Enough to Get Into Four-Year Colleges instead of you, a superbly qualified, well-loved and respected, and professional person with 30 years' directly applicable work experience, you probably don't have an age discrimination case.

Sign No. 3: You don't know all the facts. In any decent workplace, personnel information is not shared with employees who don't have a need to know. That's a good thing, but it causes people to sometimes feel that they've been singled out when in fact they have been treated exactly the same as their so-called "similarly-situated" co-workers. Unfortunately, they don't always find this out until they are in the thick of the discovery process in a lawsuit that the employer will win. Once an employer has been sued and backed into a corner, it will have no choice but to trot out all the evidence that, just as it fired you for failing to generate new business, it fired 10 other sales reps for the same reason, many of whom are in their 20's and 30's. And those people who were younger who you thought were being treated more favorably? Lo and behold, they actually had better numbers than you did. Or they didn't, but only because they were on job-protected FMLA leave for part of the relevant time period. Or they didn't, but they are in the performance improvement process, too, just like you were -- and can be expected to meet the same fate as you if their numbers don't improve. You get the idea.

Sign No. 4: Your boss is a dirty, rotten creep. (This is related to Sign No. 2, above.) Your boss may just be a dirty, rotten creep. That's a bummer, but it's not illegal as long as he's a creep to everybody. On the other hand, if he's sweet to the whippersnappers but rotten to everybody over the age of 50, you might have a case.

Sign No. 5: You are a dirty, rotten creep. Before rushing off to file a discrimination charge against your employer, it's not a bad idea to take an unsentimental, high-definition, fluorescent-light look at yourself. How do you get along with the people you work with? Do they like you? Are you known as "high-maintenance" if not a DRC? If you filed a charge or lawsuit against your employer, would anyone at work side with you? (And, when considering that, be sure to remember that even the current employees whom you counted among your friends are going to be reluctant to get involved.) Or, do you think there is a good chance you could be subjected to sitting through deposition after deposition in which your co-workers testify under oath about what an incompetent jerk you were, and how relieved everyone was when you were finally fired, and how much better your replacement is? (This really happens, and, when it does, it's no fun for the plaintiff.)

Sign No. 5: Your sweet, kind-hearted, easy-going boss has been replaced with a Master of the Universe. Maybe you got outstanding performance reviews (plus home-baked cookies) for 20 years while you reported to Mrs. Santa Claus. Then Mrs. Santa Claus retired, and was replaced by Gordon Gekko. Suddenly, you can't do anything right, and you're on a 6-month Performance Improvement Plan with termination in your immediate future. But surely this is age discrimination, because I had outstanding reviews for 20 years and now that I'm 60, I'm suddenly on a PIP! Nuh-uh. The courts say that Gordon has the right to have his own performance standards, even if they are dramatically different from Mrs. Claus's standards. As long as Gordon requires everyone to conform to his tougher standards, he's acting legally.

Sign No. 6: Your employer made a business judgment that you don't agree with. You have been an awesome bookkeeper/accountant for your employer for 20 years, and your associate degree in business from the local community college, coupled with your work experience, has served you well. Suddenly your employer tells you that the company has decided to upgrade your position to Chief Financial Officer and put a CPA in the position, and can't afford both a CPA and you. So, you're now in the unemployment line, while 25-year-old Numbercruncher, who just graduated from a remote outpost of the state university with a C+ average and passed the CPA exam, is in -- as CFO!! How unfair! You know you are smarter and better at what needs to be done than Numbercruncher. It doesn't matter. Your employer has the right to make this type of decision, even if it's a stupid decision, as long as it's not based on age or some other illegal reason. As the courts like to say, "We do not sit as super-personnel committees, second-guessing employers' business decisions."

Sign No. 7: Your employer honestly believes you committed a termination offense, even if you didn't. What? Yes, it's true -- "guilty beyond a reasonable doubt" applies only when you've been charged with a crime. In the workplace, the employer is allowed to terminate (or discipline) employees based on nothing more than an honest, reasonable belief. So, when you are falsely accused of sexual harassment by a couple of colluding co-workers, it's not illegal for the employer to fire you (assuming it did not know about the collusion), even if the employer cannot say for a fact that you are guilty, and even if, a year, later, during her deposition, one of your accusers breaks down and admits that the accusation was a total scam. In your age discrimination lawsuit, the courts will not look at your guilt or innocence but whether your employer, at the time of the termination, had reason to honestly believe that you had committed a termination offense.

Sign No. 8: Your employer discriminated against you, but not because of your age. Frequently plaintiffs will have a number of theories as to why they were terminated -- if they're 40 or older, they'll think it's their age; if they're female, they'll think it's their sex; if they're a member of a racial or ethnic minority, they'll think it's their race or national origin; if they're white guys, they'll think it's reverse sex and reverse race discrimination; if they filed a workers' compensation claim, they'll think it's workers' comp retaliation, etc., etc. A good plaintiff's lawyer will encourage the client to narrow these ideas down to one or two strong ones that are supported by some evidence, and to let the other ones go. Although it is possible for an employer to discriminate against an employee for more than one reason (for example, women frequently claim that TV stations discriminate against older women -- but not older men -- as news anchors), it's tough to claim that you, a 40-year-old African-American, were discriminated against because of your age when all the evidence shows that your boss was really on a campaign to get rid of African-Americans, no matter what their ages.

Sign No. 9: Your replacement is as old as you, or older. This does not automatically defeat an age discrimination claim, but it is a pretty strong sign that your age is not the reason you lost your job.

As you can see, our legal system tolerates a lot of unfairness, meanness, mistakes, and stupidity. This is true outside the employment law world, too -- if someone cuts you off in traffic and flips you a bird while doing it, that is without question rude, and you will probably be justifiably furious for at least 15 minutes, but you will not be able to sue that person for intentional infliction of emotional distress, even if you managed to get their license plate number. It's a cruel world, and we need to think about that before rushing to the courthouse.

The ADAAA, the ADA, and the Genetic Information Non-Discrimination Act

Posted by Robin E. Shea on May 16, 2011

A few weeks ago, I posted my thoughts about how the expanded definition of "disability" under the Americans with Disabilities Act Amendments Act will affect administration of the Family and Medical Leave Act. I promised to follow up with a post about the impact of the ADAAA on the Genetic Information Non-Discrimination Act "unless more pressing news intervene[d]."

DNA.jpgAs expected, I got distracted by Friday the 13th, and "common misconceptions." So, I'm a little behind schedule. 

As with my ADAAA/FMLA post, this is a work in progress, and I'd love to get feedback as to whether my ideas are right on target, so-so, or completely misguided.

The GINA, to grossly oversimplify, prohibits the disclosure, use, acquisition or attempted acquisition of "genetic information" as defined in the law, as well as discrimination because of "genetic information" or retaliation, etc.

The regulatory definition of “genetic information” includes not only the individual’s genetic testing information but also that of his or her family members as well as the “manifestation of a disease” in family members (e.g., “Has anyone in your family ever had cancer?”).

It also includes information about the individual’s or family member’s request for genetic services, genetic information of a fetus carried by the individual or family member, and genetic information of an embryo “legally held by the individual or family member using an assisted reproductive technology” (e.g., in vitro fertilization).

Thankfully, the statute and regulation specifically exclude sex and age from the definition of “genetic information.” The regulation also excludes race and ethnic characteristics if that information is “not derived from a genetic test.”

For the most part, it has been believed that the ADA and the GINA do not overlap, which is the reason that we supposedly needed the GINA. The ADA was intended to apply to existing disabling medical conditions. (But not really, because the ADA also protects individuals with "histories" of disabilities and "perceived" disabilities. But anyway.) The GINA, on the other hand, has more of an emphasis on information about an individual's predisposition to certain medical conditions.

For example . . . sometimes a "preventive" mastectomy is recommended for women who have a significant history of breast cancer in their families. The woman undergoing this surgery probably does not have a "disability," even within the liberal meaning of the ADAAA, because she does not actually have breast cancer or a history of breast cancer, and may not be regarded as having an "impairment" that is not "transitory and minor." However, if her employer terminated her, she might very well have a GINA discrimination claim. The theory would be that the employer terminated her because of her family history of breast cancer, and because family history is "genetic information," the employer violated the GINA. 

(Caution: The standard for a finding of "regarded as" disabled under the ADAAA -- requiring that the employer only perceive an impairment that is not transitory and minor -- may mean that the mastectomy surgery itself could give rise to an ADAAA "regarded as" claim.)

The ADA also protects individuals who have "associations" with individuals with disabilities. I see the possibility for a lot of overlap between the ADA and the GINA on "association" claims.

For instance . . . Mary is pregnant with a child who has been prenatally diagnosed with Down Syndrome, a genetic condition. First, to avoid any liability for sex/pregnancy discrimination, the employer may not take any action against her based on whether she decides to go through with the pregnancy. But, let's say the employer strongly "encourages" Mary to have an abortion and fires her when she refuses. Clearly, Mary would have a valid pregnancy discrimination claim under Title VII. Would she have an ADA claim? She doesn't have a disability, but if I were a plaintiff's lawyer, I would include an ADA "association" claim. In other words, I'd allege that Mary's employment was terminated because of her association with an individual with a disability (i.e., her baby). Would she have a GINA claim, as well? I would say so -- this seems to be exactly the kind of situation that the GINA was enacted to address. The baby's condition would be "genetic information" about Mary.

And how about this classic ADA-association scenario? Joe's son has a congenital heart defect, and the company refuses to hire Joe because it is afraid that Joe's son will make the company's health insurance premiums skyrocket. Now, Joe would have an ADA "association" claim and a GINA discrimination claim, too.

On the other hand, if Joe's son is disabled in an automobile accident, and the company refuses to hire Joe because it's afraid Joe's son will make the company's health insurance premiums skyrocket, Joe would have an ADA "association" claim but (if I'm interpreting the GINA correctly) not a GINA claim. In this example, the son does not have a congenital health condition that could be considered "genetic."

So, these are the key areas where I see ADAAA/GINA overlap:

*Associational claims under the ADA and GINA discrimination based on family history.

*Discrimination claims based on an individual's "history" of a disability or actual disability where the condition is a congenital one.

*Discrimination claims based on an individual's being "regarded as" having a disability based on preventive surgery, genetic testing, association with a family member with a congenital disability.

Employment-related medical examinations, the ADA, and the GINA. The GINA will also overlap with some of the "old ADA" provisions, particularly concerning medical examinations. As most readers know, the ADA allows post-offer medical examinations if the examinations are required of all offerees in the job category. Employers are also allowed to send current employees for medical examinations as long as the examinations are "job-related and consistent with business necessity."

The ADAAA has not changed these rules. But the GINA has. Now, the employer must provide the GINA "safe harbor" language to the health care provider when sending an employee for any medical examination, even when the medical examination is legal. The "safe harbor" language is designed to prevent the health care provider from asking for family history. Even if the health care provider slips up and asks for it, the employer will be protected from liability if it provided the safe harbor language to the health care provider.

Voluntary wellness programs. The ADA also allows employers to get medical information from employees as part of a voluntary wellness program. The GINA allows questions related to the genetic background of employees in connection with voluntary wellness programs if the employer first gets a written authorization from the employee that includes certain specific content.

Confidentiality of medical information. Finally, the ADA is responsible for the well-known rule that requires employers to keep employee medical information confidential and separate from personnel files. Some of this medical information may also be covered by the GINA and, one would think, has already been purged from personnel files. But if it hasn't, the EEOC has said that it is not necessary for the employer to go back through old personnel files and remove GINA-protected information . . . as long as the information was put in the files before the effective date of the law (November 21, 2009). Of course, even the old genetic information cannot be used or disclosed, and genetic information cannot be put in a personnel file after November 21, 2009.

Next up: the interaction of the ADAAA with the HIPAA privacy rule. Does the fun ever start?

THAT STINKS! Greedy lawyers, toxic employees, heavy-handed government, and other bad things

Posted by Robin E. Shea on May 13, 2011

Woman holding nose.jpgHere are some "bad news" items from the employment law world:

Evil, money-grubbling lawyers (is that redundant?) who rip off their clients. Forbes has a disheartening article on "nine ways lawyers inflate their bills." Some of the alleged practices are astounding to even me, a lawyer: charging clients for use of conference rooms when the clients are meeting with the lawyers (!!!), charging for time spent reviewing bills (whaaaa?), having lawyers do photocopying and other routine tasks so they can bill the client $200+ an hour for it . . .. Why any client would tolerate this is beyond me. There are plenty of good law firms out there who will bill honestly with no hidden charges. Don't put up with it!

The toxic employee. If an employee is enough of a jerk, she can intimidate not only her co-workers and subordinates, but also her bosses. If her bosses are afraid, they won't give her constructive criticism or any clue that she is out of line. Then she may be very unpleasantly surprised when they finally reach their limit and give her the axe without warning. The Evil HR Lady has a good post on a better way to handle the toxic employee, which includes overcoming management fear and giving The Evil One a chance to shape up before you ship her out.

Poor Starbuck's. Starbuck's has been sued by the Equal Employment Opportunity Commission for allegedly firing a dwarf barista at a store in El Paso, Texas, in violation of the Americans with Disabilities Act. According to the lawsuit, the barista was hired and then terminated three days later because she wanted a stool or stepladder so that she could reach. (And, as we all know, "reaching" is now a major life activity under the ADA.) Starbuck's took the position that a stool or stepladder would be a hazard behind the counter, which I can understand, having seen the way those employees race around during rush hour in a narrow space. I guess we will have to wait and see how the evidence develops, but I have a feeling there is a big wrinkle to this story that the EEOC isn't talking about . . . I have a hard time believing that Starbuck's would be unwilling to reasonably accommodate someone they'd hired with a known disability only three days earlier.

Email your timesheets directly to Big Brother! The U.S. Department of Labor has come out with an app for iPhones and iPods that allows employees to track their hours worked and send the data directly to the Department of Labor (or, if they'd rather get paid, to their employers). The app is intended to make it easier for the DOL to enforce compliance with the Fair Labor Standards Act, and Blackberry and Droid versions are reportedly forthcoming.

Always looking out for my readers, I have downloaded the app and have tried it. It's very easy to use once you get through the initial set-up. You click on the employer name, click "start," and your iPhone or iPod keeps time for you. If you want to include an unpaid break (but, hey, who would?), you click again on the employer and then click "break." Up pops a DOL description of the FLSA rules regarding compensability of break time. When break is over, just go back to employer and click "start" again, and the automatic timekeeping resumes.

The app contains one whopping disclaimer that I suspect most users won't notice -- when you click on the "i" at the top left of the screen, you get this: "This application . . . does not include every possible situation encountered in the workplace, such as tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials, or pay for regular days of rest," etc., etc. (There is a lot more that the application doesn't include, but I don't have time to quote it all here.) As Ellen Kearns, co-chair of our Wage and Hour Practice Group notes, the app also fails to exclude time that would be non-compensable under the Portal to Portal Act, such as time spent walking from your car in the parking lot to your desk, or time that is de minimis, such as time spent booting up your computer. And, as Jim Coleman, co-chair of our Wage and Hour Practice Group notes, there is no reason for a court or the DOL to give the time reported on this app any more weight than it would to time reported using the employer's FLSA-compliant system.

In other words, a pretty worthless app, although it will probably bring the DOL down on a lot of employers.

However, I'm thinking I might use it to track my billable hours, when I go down to Kinko's to make some copies, or arrange documents in chronological order. I'm kidding, I'M KIDDING!

To better times!   

The Fallacious Five: Employment law misconceptions that trip up employers

Posted by Robin E. Shea on May 06, 2011

clueless man.jpgPlaintiff's lawyer Donna Ballman and The Evil HR Lady have had good posts recently on common employee misconceptions about employment law, including the "right" to see what is in one's personnel file and the "right" to take a break.*

*Depending on where the employee lives, he may have these rights, but in many states he does not. And the federal Fair Labor Standards Act does not require breaks. 

What's good for the goose is good for the gander. So, what are the most common misconceptions about the law by employers? Here are five that I see frequently:

No. 1 - "This is a right-to-work state. We can fire you at any time, and for a good reason, a bad reason or no reason at all." This is wrong on so many levels. First, many states -- particularly in the North and Northeast -- are not right-to-work states. But even assuming the speaker really is in a right-to-work state, he has misunderstood what it means. A right-to-work state is one in which employees cannot be forced to join a union or pay union dues as a condition of employment. The speaker is confusing "right-to-work" with "employment at will," which brings me to my next misconception . . .

No. 2 - "This is an employment-at-will state. We can fire you at any time, and for a good reason, a bad reason or no reason at all." Oh, yeah? I dare ya to try firing someone for a bad reason or no reason, even in an employment-at-will state. I've blogged about this before. Even if your state is technically employment-at-will  (and not all are), you still can't terminate an employee for an illegal reason. And there are an awful lot of illegal reasons -- so many, in fact, that they swallow the rule.

Allow me to use my relatively employer-friendly home state of North Carolina as an example. Even though we are at-will (allegedly), many grounds for termination are unlawful, including (1) because the employee refused to break the law, (2) because the employee filed or is expected to file a workers' compensation claim, (3) because of the employee's race, color, national origin, sex, age, or disability, (4) because the ground for termination is found to have violated a "public policy" of the State, (5) because the employee filed a state workplace safety complaint, (6) because the employee exercised her rights to join or not join a union (see #1, above!), (6) because the employee uses lawful products during non-working hours, and on and on and on, yada yada yada. And this doesn't even count all the federal laws that also protect employees in all 50 states.

And you may say, "But I'm not firing the employee for any of these illegal reasons! I just don't like her hairdo!" Technically and superficially, that would be a "legal" reason to terminate an employee in an at-will state . . . if she's foolish enough to agree that this was the reason. But you can be sure that the employee fired because of her bad hairdo will claim you really fired her because she was a woman (illegal), because of her race or national origin (illegal), or because she testified truthfully in her best friend's unemployment hearing (illegal). Which means, at the very least, an expensive lawsuit for you and, at worst, a jury verdict in her favor because who would ever believe that an employer would get rid of a good employee just because she had bad hair?

3. "Exempt = salaried." This one is very common. Employers frequently believe that they have to pay overtime only to "hourly" employees and that everyone who is "salaried" is FLSA-exempt. Not true, and it can be very expensive to find out you've been doing it wrong, especially if you find that out during a collective action brought by all of your non-exempt "salaried" employees. Under the FLSA, being salaried is usually a necessary condition for exemption, but not a sufficient one. The employee must also satisfy the "duties" requirements for the executive, administrative, or professional exemptions. (There are exemptions for outside salespersons and certain computer employees that do not require payment of a salary.) This is why clerical employees, for example, fill out time sheets and (should) get overtime if they work more than 40 hours in a workweek.

4. "Just treat everyone the same, and you'll never go wrong." This was great advice in 1970, when "non-discrimination" was a new-fangled idea, but not any more. Generally, an employer does want to be fair and be as consistent as possible. However, there are some major exceptions that can really cause problems if the employer is not aware of them. First, there is the Americans with Disabilities Act, which I have discussed at length elsewhere and which requires reasonable accommodation in appropriate cases. "Reasonable accommodation" by definition requires that you treat one employee differently from other employees. Covered federal contractors face similar requirements under the Rehabilitation Act and the Vietnam-Era Veterans Rehabilitation and Adjustment Act and its amendments. In addition to these laws, Title VII requires that employers make reasonable accommodations to the religious beliefs and practices of employees. In this context, as well, "accommodation" means "differential treatment."

As Ralph Waldo Emerson said, "A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines."

5. "Women make only 59 cents for every dollar that men make, and it's because sex discrimination is rampant in the workplace even though it's been illegal for almost 50 years." This one drives me crazy, so I had to save it for last. First, ladies, we are moving up in the world. We are now making 77 cents for every dollar that men earn. So there! More importantly, even the 77-cent statistic is dishonest because it measures only the average pay of all men versus the average pay of all women. Some little details not taken into account include, oh, I don't know -- job held, education, time in workplace, full-time versus part-time . . .. 

Seriously, there is a gender-based pay gap, but it is not at all clear that discrimination is the reason. A more likely explanation is the difference in men's and women's lifestyle choices.

Statistically speaking, women are more likely to start their paid-work lives later and to take more breaks, usually as they bear and rear children. (We break for children.) For family reasons, women are also more likely to work in "clean, safe" jobs with regular hours and minimal travel, and to seek part-time work schedules. The physically demanding, dangerous work with rotten hours or extensive travel is usually performed by men. (Please note that I am speaking statistically and realize that there are exceptions to these rules.)

I have also seen that our bad economy has resulted in more male than female unemployment. (Scroll down to second-to-last paragraph.) So it may be that men are really the ones getting the raw deal, not women. Or, perhaps we can just agree that things are tough all over, and for all of us.

I'd love to hear from you if you have more employer misconceptions to add. And, to all of you readers who are moms, Happy Mother's Day. I hope that you think your kids were well worth the pay gap that "they" caused. Mine were!