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Wal-Mart equal pay claims approach 2,000

Nearly 2,000 women have filed individual employment discrimination claims against Wal-Mart in the aftermath of the U.S. Supreme Court’s decision last June rejecting their equal pay and failure-to-promote class action, plaintiffs’ lawyers say.

Former and current Wal-Mart employees have filed 1,975 pay and promotion charges with the U.S. Equal Employment Commission, according to a press release issued by the two lead attorneys for the women.

“That nearly 2,000 women across the country have filed charges over the past year making similar claims of sex discrimination against Wal-Mart is a striking testament that the problems that gave rise to the original case are ongoing and that the evidence of discrimination remains widespread,” said co-lead counsel Joseph Sellers in a statement.

Last summer in Wal-Mart Stores v. Dukes, the Supreme Court scuttled what would have been the largest employment discrimination class action in U.S. history.

In 2004, a California federal judge certified a class of more than 1.5 million current and past Wal-Mart employees who alleged that the nation’s largest private employer discriminated against them on the basis of their sex by denying them equal pay or promotions.

The Supreme Court in Dukes concluded in a divided opinion that the plaintiffs’ claims were not capable of class-wide resolution.

Since the decertification of the nationwide class, women in 48 states have filed EEOC charges against Wal-Mart, the press release said.

“The fact that EEOC charges were filed in every single Wal-Mart region in the nation demonstrates the widespread and pervasive nature of Wal-Mart’s pay and promotion discrimination against its women employees,” said co-lead counsel Brad Seligman in a statement.

Now that the nationwide class action is at an end, plaintiffs are also attempting to pursue regional class actions against the retail giant. The press release said that regional class actions were filed in California and Texas in October 2011, and “numerous” other class actions are expected to be filed in other states throughout 2012.

— Pat Murphy


Bill protecting gay workers is debated

As lawmakers and advocates urged the passage of legislation they say is needed to stop discrimination against gay and transgendered workers, opponents of the measure voiced constitutional concerns at a Senate hearing.

The Employment Non-Discrimination Act, S. 811, was the subject of a June 12 hearing before the Senate Committee for Health, Education, Labor and Pensions. The bill would prohibit private businesses, public employers and labor unions from basing employment decisions on workers’ sexual orientation or gender identity.

The measure would provide exemptions for religious organizations and businesses with fewer than 15 employees, and it would not affect current military policies regarding LGBT workers.

“It is a time to extend fundamental fairness to all Americans, and that is exactly what this bill does,” said Sen. Jeff Merkley, D-Ore., lead sponsor of the bill.

ENDA was first presented to Congress in 1994. Similar legislation has been reintroduced in every Congress since, but has failed to pass.

Sen. Tom Harkin, D-Iowa, chairman of the Senate HELP Committee, called the recent draft of the act “fully inclusive” because it protects the rights of workers regardless of sexual orientation or gender identity.

“Too many hardworking Americans are being judged not by their talent, and their ability, and their qualifications, but by their sexual orientation or their gender identity,” Harkin said.

Kylar Broadus, founder of the Columbia, Mo.-based Trans People of Color Coalition and the first transgendered person to ever testify before the U.S. Senate, said transgendered people face discrimination in the workplace every day.

“It’s horrendous to hear the stories I hear on a daily basis of what people suffer or encounter to be employed and maintain a living for themselves and their families,” Broadus said.

Craig Parshall, spokesman for National Religious Broadcasters in Manassas, Va., was the only one of five witnesses to testify against ENDA. He contended that the religious exemption in the legislation is inadequate.

“ENDA would impose a stunningly heavy constitutional burden on religious organizations and would interfere with their ability to pursue their mission,” Parshall said.

Policies granting equal employment protection for gay and lesbian workers exist in 29 states, but fewer states have laws extending protection to transgendered workers.

“There is a need for a comprehensive, clear federal standard that applies across the country,” testified Samuel Bagenstos, a professor at the University of Michigan Law School.

— Margaret Wallis


NLRB issues 3rd memo on social media policies

The National Labor Relations Board has released the third in a series of memos that detail common pitfalls in employment social media policies.

The report stresses that policy provisions are unlawful if they interfere with workers’ ability to exercise their labor rights by discouraging communication among co-workers on social media sites such as Facebook, Twitter or YouTube.

The report details acting General Counsel Lafe Solomon’s rulings in seven recent social media cases in which parts or all of company policies restricting employee social media use overstepped labor law boundaries.

Such boundaries are breached if the employer’s rule “would reasonably tend to chill employees in the exercise of their rights,” according to the report.

Solomon concludes that social media policy rules are unlawful if they are ambiguous as to their application to Section 7 — which deals with an employee’s right to join a labor union — while “rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they could not reasonably be construed to cover protected activity,” are not unlawful.

In the first six cases, restrictions on communicating confidential information, “friending” co-workers, privacy, online tone, prior permission and expressing opinions were deemed unlawful if they were too broad or overbearing in their provisions.

Additionally, the NLRB found provisions on contact with government agencies to be unlawful if they restricted employees from their protected right to converse with NLRB agents about working conditions or to respond to inquiries from government agencies regarding the conditions.

— Michelle Davis


DOL issues guidance on ‘work sharing’ program

The U.S. Department of Labor has issued a guidance to state agencies on a new program for short-time unemployment compensation or “work sharing.”

Work sharing is part of the Unemployment Insurance program created by the 2012 Middle Class Tax Relief and Job Creation Act, which was signed into law in February. It allows employers to avoid layoffs by reducing the hours of certain groups of employees.

The measure also allows workers whose hours have been cut to get compensated through weekly unemployment payments.

“This program will provide more flexibility to workers and employers so they may more efficiently and effectively weather the ups and downs of the economy,” Secretary of Labor Hilda L. Solis said in a statement announcing the guidance.

The guidance stipulates a new federal definition of short-time compensation, which, among other things, allows employees to continue receiving health insurance and retirement benefits.

The DOL is expected to issue additional guidance on implementing other aspects of the short-time compensation program.

— Remco Zwetsloot

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