Paycheck Fairness Advances in New Jersey

What is the most dangerous question in your workplace?

In the private sector, the most dangerous question often is: “How much are you being paid?”

While the U.S. Congress fiddles, New Jersey Gov. Chris Christie recently signed into law a  bill making it illegal for New Jersey employers to retaliate if a worker discloses job pay information when the disclosure is made for the purpose of investigating whether someone is being paid unfairly. Job pay information includes workers’  job titles, occupational categories, pay and benefits, and status as members of protected categories.

Nearly half of all workers nationally are either contractually forbidden or strongly discouraged from discussing their pay with their colleagues, according to a 2011 report by the Institute for Women’s Policy Research Institute (IWPR).

Even when women have the same title as men, they tend to earn less and the disparity widens if women are Latino or African American.

Senate Majority Leader Loretta Weinberg, D-Teaneck, is quoted as stating: “If we are serious about pay equity, we have to allow workers to freely discuss their job conditions … By allowing employees to ask their coworkers about their salaries, benefits or working conditions, we open a door for those who believe they are being treated unfairly to learn the truth and get their fair share.”

Paycheck Fairness

The NJ law mirrors the proposed Paycheck Fairness Act,  legislation that was passed by the U.S. House of Representatives in 2009 but was blocked by Republicans in the U.S. Senate. The act, which was reintroduced this year, would close loopholes in the federal Equal Pay Act of 1963 and provide additional incentives for employers not to discriminate in pay.

A 2010 report from the US Census Bureau reported that for every dollar a man earned, a woman only earned 77 cents–for equal work production. As women get older, this wage gap widens. The National Women’s Law Center reports that when women start working–between ages 15 and 24–the wage gap is relatively small. Yet by the time they start to reach the critical years leading to retirement, ages 45 to 64, women are earning only 71% of what men do.

Discrimination (rather than differences in occupations, industry, experience or education) is believed to be responsible for about 40 percent of the wage gap.  According to the IWPR, in the federal government, where pay rates are transparent and publicly available, the gender wage gap is only 11 percent.

At the current rate, it is projected that the wage gap will not disappear for 45 years.

Sen. Warren Speaks to Labor

They Got Rich; We Paid for the Roads

Labor Day 2013 could be a depressing given the sad state of labor in the United States.

So here are some inspiring  quotes from U.S. Sen. Elizabeth Warren (D-Mass), mostly courtesy of the AFL-CIO, which has invited Warren to be a keynote speaker at its national convention in Los Angeles next month. Warren has proven to be a clear voice for lower and middle class workers since her election to the U.S. Senate.

  •  “There is nobody in this country who got rich on their own. Nobody. You built a factory out there—good for you. But  … You moved your goods to market on roads the rest of us paid for. You hired workers the rest of us paid to educate. You were safe in your factory because of police forces and fire forces that the rest of us paid for. You didn’t have to worry that marauding bands would come and seize everything at your factory….You built a factory and it turned into something terrific or a great idea—God bless! Keep a hunk of it. But part of the underlying social contract is you take a hunk of that and pay forward for the next kid who comes along.”—September 2011. 

“People feel like the system is rigged against them, and here is the painful part, they’re right. The system is rigged.”—September 2012.

  • “Hardworking men and women who are busting their tails in full-time jobs shouldn’t be left in poverty.”—August 2013..
  • “Look around. Oil companies guzzle down the billions in profits. Billionaires pay a lower tax rate than their secretaries, and Wall Street CEOs, the same ones that direct our economy and destroyed millions of jobs still strut around Congress, no shame, demanding favors, and acting like we should thank them. Does anyone here have a problem with that?”—September, 2012.
  •  “It is critical that the American people, and not just their financial institutions, be represented at the negotiating table.”—Summer 2009.
  •  “Americans are fighters. We’re tough, resourceful and creative, and if we have the chance to fight on a level playing field, where everyone pays a fair share and everyone has a real shot, then no one—no one can stop us.”—September 2012.
  • “Washington is wired to work well for those on Wall Street who can hire lobbyists and lawyers and it doesn’t work very well for the rest of us.”—October 2011.
  •  “If you’re caught with an ounce of cocaine, the chances are good you’re going to jail….Evidently, if you launder nearly a billion dollars for drug cartels and violate our international sanctions, your company pays a fine and you go home and sleep in your own bed at night.”—March 2013. 
  • “Corporations are not people. People have hearts, they have kids, they get jobs, they get sick, they cry, they dance. They live, they love and they die. And that matters. That matters because we don’t run this country for corporations, we run it for people.”—September 2012.
  •  “Nobody’s safe. Health insurance? That didn’t protect 1 million Americans who were financially ruined by illness or medical bills last year.”—February 2005.

In addition to Warren,  the AFL-CIO convention has invited as a guest speaker the recently appointed Secretary of Labor Thomas Perez.

Here are a couple of other Warren quotes worth remembering:

  • “Instead of helping our students, the government is making a profit on student loans. That is wrong. It is morally wrong. That is obscene.”
  • “I introduced the Bank on Students Loan Fairness Act to give students the same low-interest rates that the big banks get. If those 0.75% rate is good enough for the big banks, it’s good enough for our kids who are trying to get an education. And as long as the government continues to make hundreds of billions in profits off our students, I’ll keep fighting.”

 

Walmart Dodges Bullet on Sex Discrimination

Scale of JusticeWal-Mart may have dodged the bullet for alleged systemic sex discrimination dating back at least a decade.

Last week a federal judge in San Francisco denied class certification in a statewide class action lawsuit filed by five female Wal-Mart employees in California on behalf of 150,000 past and present female workers in that state who  allegedly were denied equal treatment in pay and promotions.

This is the second defeat for plaintiffs seeking to file class action lawsuits against Wal-Mart on a state or regional basis. Wal-Mart won dismissal of a lawsuit in October that sought to represent female Wal-Mart workers in Texas.

 The U.S. Supreme Court last year rejected a 12-year-old class action lawsuit filed by six female employees of Wal-Mart on behalf of  1.6 million past and present female workers around the country. 

What’s left for the plaintiffs?

Class action lawsuits often are the only realistic way of addressing systematic discrimination by corporations because of  the high cost of litigation, the defendant’s “deep pockets,”  and the relatively paltry amount of damages typically available in individual cases.

Underwhelmed

Senior U.S. District Judge Charles R. Breyer ruled the California lawsuit failed to meet the  U.S. Supreme Court’s criteria for a collective legal action, including evidence of a company policy or decisions by higher-ups that affect all workers in the class. He the statistics “still do not reflect significant proof of a general policy of discrimination.”

Judge Breyer concluded the following evidence from the plaintiff’s is “underwhelming”:

  • About three-quarters of the stores paid women, on average, the same hourly rates as men. (Note: of course, this means that a quarter of Wal-Mart stores pay women, on average, a lower hourly rate than men. PGB)
  • Eighty-six female Wal-Mart employees in California described personal experiences of discrimination  – that represents only one woman for every 1,745 members of the proposed statewide class. (It’s unclear what number would be sufficient  for class action status- PGB)
  • The plaintiff’s produced evidence that Wal-Mart’s then-chief executive, Thomas Coughlin, in a 2004 meeting attended by district managers who approve pay and promotional decisions, said the key to success in choosing leaders was “a single focus to get the job done,” and that “men are better at focus.”
  • The plaintiffs said they had evidence of disparities throughout California and biased statements by top managers.

The U.S. Supreme Court ruled unanimously in June 2011 that the original lawsuit against Wal-Mart in 2001 failed to show any company-wide policy or attitude of discrimination  and said there were too many women in too many jobs at Wal-Mart to wrap into one lawsuit. The high court overturned lower court decisions that allowed nationwide class-action status.

Judge Breyer said the California lawsuit “is essentially a scaled-down version of the (nationwide) case with new labels on old arguments.” He said the plaintiffs challenged “the discretionary decisions of hundreds of decision-makers,” which, according to the U.S. Supreme Court, cannot be the basis of a class-action suit.  

Breyer said the remarks attributed to former Wal-Mart CEO Coughlin may have come from an outside consultant and were made after the period covered by the lawsuit.

Breyer, 72, was appointed to the federal bench in 1997 by then-President Bill Clinton.  His brother is U.S. Supreme Court  Justice Stephen Breyer.

Dodged a Bullet?

At one point, Wal-Mart, the nation’s leading retailer, was concerned about potentially serious liability for alleged sex discrimination.

In  2010, the New York Times published an article on a 1995 memorandum issued by Wal-Mart’s then counsel, Akin Gump Strauss Hauer & Feld,  that reported widespread gender disparities in pay and promotion at Wal-Mart and Sam’s Club stores.

The NYT reported the memo said that “women employed by Wal-Mart earned less than men in numerous job categories, with men in salaried jobs earning 19 percent more than women..”

By one measure, the memo states “. . . men were five and a half times as likely as women to be promoted into salaried, management positions.” Furthermore, in 1993, men employed by Wal-Mart as department managers were paid an hourly rate 5.8 percent higher than women in those positions. 

The Memo estimated that Wal-Mart’s potential legal exposure in a class-action sex discrimination suit was $185 million to $740 million for 1993 alone.

The  overall disparities in job assignments, the memo states, were “statistically significant and sufficient to warrant a finding of discrimination unless the company can demonstrate at trial that the statistical disparities are caused by legitimate, nondiscriminatory factors.”

At this point it appears that Wal-Mart has dodged that bullet.

Wal-Mart was “pleased” by California Judge Breyer’s ruling and said it has a had a  “strong policy” against discrimination in place for many years.

Stopping Sexual Harassment

In the past, this blog has questioned why sexual harassment is not a criminal offense in the United States as it is in France.

Now the U.S. Equal Opportunity Commission (EEOC) has filed a second complaint against a business owner who is  characterized as a “serial” sexual harasser because he paid  $780,000 to five women in 2003 to settle a sexual harassment complaint.

The EEOC alleges that Fred Fuller Oil Company, a Hudson, N.H.-based oil company, violated federal law when  owner Fred Fuller sexually harassed two women, caused the constructive discharge of one, and fired the other.

Fuller allegedly forced Nichole Wilkins to quit in July 2011 after he sexually assaulted her by grabbing and squeezing both her breasts from behind while pinning her against her desk.  The EEOC says this assault was the culmination of a growing number of unwanted and inappropriate sexual comments and incidents of touching by Fuller. 

 Fuller then allegedly created a sexually hostile work environment for Wilkin’s friend and co-worker, Beverly Mulcahey. Shortly after Wilkins notified Fuller in October 2011 that she intended to file an EEOC charge of discrimination, Fuller fired Mulcahey for poor performance.

Déjà Vu

The EEOC sued Fred Fuller Oil Company in 2003 and settled that case in July 2005, winning  $780,000 in relief for five women.  As part of the settlement, the company agreed to undergo training aimed at conforming to Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment.

Markus L. Penzel, trial attorney in the EEOC’s Boston Area Office, said in a press release last month, “The Commission characterized Fred Fuller as a ‘serial sexual harasser’ in its first lawsuit.  Unfortunately, that still seems to be true.”

With sincere respect to Mr. Penzel, it is more than unfortunate that additional women were allegedly targeted by Fuller.  If the EEOC’s complaint is true, these women not only suffered emotional distress but were hounded out of their jobs, resulting in a loss of their financial well-being.

The women who worked for Fred Fuller Oil Co. probably have little in common with  Sherly Sanburg, the billionaire Harvard University graduate and  chief financial officer of Google. She implies in a recent bestselling book that women are partly responsible for their own lack of equality in the workplace. 

The reality is that victims of sexual harassment often are single mothers living paycheck-to-paycheck, with few other employment options, and college students who are trying to earn money to pay their tuition. These women are vulnerable, often not believed, sometimes blamed, almost always powerless and utterly disposable.   

Get Serious!

There’s been a lot of discussion about sexual harassment in the military as a result of publicity surrounding alleged improper sexual conduct of military officers who are responsible for protecting  women from sexual harassment. Surveys show that a third of American women report experiencing sexual harassment in the workplace.

Employers have done far too little to halt sexual harassment and the EEOC lacks the resources to effectively address this problem. 

It appears that Fred Fuller  was not deterred by a monetary fine. He  also did not appear to  benefit from education about what constitutes improper sexual conduct in the workplace or training on  how to comply with Title VII of the Civil Rights Act. What might have deterred Mr. Fuller?

 France’s  Law

France’s General Assembly enacted a new sexual harassment law on July 31, 2012 that includes criminal penalties of up to three years in prison.

New articles in the French Labor Code and the Penal Code state:

“Harassment is the fact of imposing on a person, in a repetitive fashion, statement or behavior of a sexual connation which violate a person’s dignity by virtue of their degrading or humiliating character or create as concerns such person an intimidating, hostile or offensive situation.”

Under the French law, it is considered an “aggravating circumstance” if a perpetrator of workplace sexual harassment is abusing his or her authority.

If Fred Fuller had snatched the purse of his first victim, he would have been lucky to get just a warning.  If he had continued this behavior, he would  have spent time in jail. That’s because stealing a  purse is a crime. 

Shouldn’t it be a crime to steal someone’s peace of mind and financial livelihood?  

Emotional Intelligence & Leadership

Schools Measure Emotional Intelligence

Question: Tom felt anxious, and became a bit stressed when he thought about all the work he needed to do. When his supervisor brought him an additional project, he felt ________________ .

  1. overwhelmed
  2. depressed
  3. ashamed
  4. self-conscious
  5. thrilled to be presented with a new challenge

 How you answer this question is a reflection of your emotional intelligence.  (Hint – Tom is not thrilled.)

Therterre have been several news stories recently that indicate the educational institutions which educate America’s business leaders are finally recognizing the importance of emotional intelligence in leadership.

 The Yale School of Management (SOM) is studying the role of emotional intelligence in predicting leadership ability.  SOM tested  its current incoming class for emotional intelligence and will use the results to determine whether traits like empathy and the ability to read people are predictive of future success.

 Furthermore, all full-time MBA students at SOM will be given the opportunity to take the Mayer-Salovey-Caruso Emotional Intelligence Test (MSCEIT)  in SOM’s first-year leadership program. Students can analyze their emotional intelligence scores to learn about how to better exert personal influence and maintain self-control as a leader.

Emotional intelligence is thought to help leaders and managers understand how others around them are feeling and to alter their management style to better achieve goals. Leaders with high emotional intelligence are able to read people, understand and manage emotions, communicate effectively, and adapt quickly to other cultures.

The 141-question MSCEIT test, measures the four branches of emotional intelligence:

  • Identifying Emotions – the ability to recognize how you and those around you are feeling.
  • Facilitating Thought– the ability to generate an emotion, and then reason with this emotion.
  • Understanding Emotions – the ability to understand complex emotions and how emotions transition from one stage to another.
  • Managing Emotions – the ability to manage emotions in yourself and in others.

One question, for example, is to ask a test-taker to rate the emotion expressed  in a photograph of a face

In addition to the SOM,  Notre Dame and Dartmouth also are administering emotional intelligence tests to future business leaders attending those schools.

The  MCEIT was developed by Yale’s president-elect, Peter Salovey, and David R. Caruso, a management psychologist and special assistant to the dean of Yale College, and John D. Mayer, a psychology professor at the University of New Hampshire.

Lack of E.I.

One trait common among managers who abuse and bully their staff appears to be a lack of empathy, which is a facet of emotional intelligence.

In fact, some researchers blamed the recent Wall Street collapse partly on a small number of business leaders who had many or all of the traits of  a psychopath and who acted without regard to the well-being of their employees, customers and the American public.

There is overwhelming evidence that employers who hire or tolerate abusive managment invite expensive litigation, needless and costly turnover, lost work time and poor morale, higher health costs, etc.