Job Posting Wage Disclosure, Annual Reporting Added to Equal Pay Act

As noted last year in a prior post, California law requires employers to pay the same wage to employees performing substantially similar work whenever they possess relevant EEO distinctions such as sex, gender, and race. Employers should expect the law to cause a new wave of employment litigation over the coming years, requiring careful justification of differences with legitimate factors, such as tenure.

A recent SuperLawyers.com article (quoting firm attorney, Richard Rybicki) highlights this emerging trend and the state's new requirements that (1) employers with 15 or more employees disclose pay scale information on all job postings, and (2) employers with 100 or more employees report race, ethnicity, and gender information along with mean and medium pay rates in ten different job categories. Pay data reporting procedure can be reviewed on the California Civil Rights Department website.

The wage posting requirement, part of California's Equal Pay Act, will apply to many more small and medium-sized employers. And unlike large-employer annual reporting, posting requirements are enforced by the ever-aggressive California Division of Labor Standards Enforcement ("Labor Commissioner"). Guidance on posting requirements and other important parts of the law can be viewed on the Labor Commissioner's website.

Employers should continue to monitor wage differences between employees performing substantially similar work, both at hire and as part of regular compliance audits. This is yet another area where an ounce of prevention is worth many pounds of cure!

Workplace Investigations: “Who, What, Where, When, (and especially) How”

This publication discusses guidelines for ensuring effective workplace investigation. A hard copy of the discussion can be viewed here.

Workplace Investigations

Employers must often conduct an investigation after receiving information that something unlawful might have happened in the workplace. State and federal laws actually require investigations in certain situations, such as after an employee complains of harassment or discrimination. In other situations, employers should conduct an investigation even if not formally required by law. But how do you prepare and conduct an adequate investigation? The law provides very little guidance on this issue, though some basic principles have developed over time. Keeping these principles in mind, and using them in all investigations, can help meet the general goals contained in state and federal employment laws.

When are investigations required?

Investigations’ “traditional” role has been under equal employment opportunity (“EEO”) law, such as those prohibiting unlawful harassment and discrimination. They have long been seen as part of employers’ duty to take action after receiving an employee complaint, discovering information such as inappropriate e-mails or internet use, or hearing rumors or third-party reports of harassment.

An effective investigation policy can also help show that the employer satisfied its obligation to take all steps “reasonably necessary” to prevent and promptly correct unlawful harassment. Proper investigations may even provide a defense to liability in some states, or to damages in others. For these reasons, the development, communication and application of consistent, predictable investigation procedures are essential parts of employers’ risk-management strategy.

What does a good investigation require?

Some laws have general terms that sound like specific requirements but really are goals, such as “prompt,” “thorough,” “objective,” “interactive,” and “reasonable.” None of these goal-oriented terms say how to conduct an investigation, but some agencies such as the federal Equal Employment Opportunity Commission (“EEOC”) have provided their own guidance. These guidelines are contained in the "Effective Investigative Process" portion of its harassment guidance at www1.eeoc.gov/policy/docs/harassment.html.

The EEOC’s guidelines suggest the following steps:

Interview Witnesses

Complainant: Who, what, when, where, and how: Who committed the alleged harassment? What exactly occurred or was said? When did it occur and is it still ongoing? Where did it occur? How often did it occur? How did it affect you? How did you react? What response did you make when the incident(s) occurred or afterwards? How did the harassment affect you? Has your job been affected in any way? Are there any persons who have relevant information? Was anyone present when the alleged harassment occurred? Did you tell anyone about it? Did anyone see you immediately after episodes of alleged harassment? Did the person who harassed you harass anyone else? Do you know whether anyone complained about harassment by that person? Are there any notes, physical evidence, or other documentation regarding the incident(s)? How would you like to see the situation resolved? Do you know of any other relevant information?

Alleged Harasser: What is your response to the allegations? If the harasser claims that the allegations are false, ask why the complainant might lie. Are there any persons who have relevant information? Are there any notes, physical evidence, or other documentation regarding the incident(s)? Do you know of any other relevant information?

Third Parties: What did you see or hear? When did this occur? Describe the alleged harasser's behavior toward the complainant and toward others in the workplace. What did the complainant tell you? When did s/he tell you this? Do you know of any other relevant information? Are there other persons who have relevant information?

Make Credibility Determinations

Inherent plausibility: Is the testimony believable on its face? Does it make sense?

Demeanor: Did the person seem to be telling the truth or lying?

Motive to falsify: Did the person have a reason to lie?

Corroboration: Is there witness testimony (such as testimony by eyewitnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that

they occurred) or physical evidence (such as written documentation) that corroborates the party's story?

Past record: Did the alleged harasser have a history of similar behavior in the past?

Making a Determination

Once all of the evidence is in, interviews are finalized, and credibility issues are resolved, management should make a determination as to whether harassment occurred. That determination could be made by the investigator, or by a management official who reviews the investigator's report. The parties should be informed of the determination.

In some circumstances, it may be difficult for management to reach a determination because of direct contradictions between the parties and a lack of documentary or eye-witness corroboration. In such cases, a credibility assessment may form the basis for a determination, based on factors such as those set forth above.

If no determination can be made because the evidence is inconclusive, the employer should still undertake further preventive measures, such as training and monitoring.

Adapting the EEOC Method

The EEOC suggestions sound like journalism school – good old “who, what, where, when, how.” This format works well for almost all factual as well as EEO investigations; employers should consider adapting it for use whenever investigations are required and, even when not required, when the employers wants to investigate workplace issues such as performance and misconduct. Using consistent, predictable procedures will help show both that an employer was prepared to deal with workplace issues in advance and that it acted in good faith when reaching its conclusion on any issue. This can go a long way toward showing compliance with employment laws and – as an added bonus – avoiding expensive employment claims and lawsuit.