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SHRM Newsletter: Utah Gender Wage Gap Creates Risk

04/17/2012

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April 17, 2012

This is Utah SHRM Legal-mail no. 2012-9 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM). 

CONTENTS:

-  UTAH GENDER WAGE GAP CREATES RISK

-  CALIFORNIA COURT ISSUES MAJOR MEAL AND REST RULING

-  COMPUTER STATUTE LIMITED TO HACKERS, NOT EMPLOYEES

-  GINA AND EMPLOYER RECORDS

-  QUICK EMPLOYMENT LAW UPDATES

UTAH GENDER WAGE GAP CREATES RISK: A recent article in the Salt Lake Tribune reported that Utah women are paid significantly lower amounts than Utah men.  You can read that article here: http://www.sltrib.com/sltrib/money/53924753-79/women-paid-gap-cents.html.csp  Such statistics can only bring the attention of regulators to Utah and that attention will pose risks to Utah employers with wage gaps in their own payrolls.  Numerous federal and state laws prohibit employment discrimination based on gender.  The federal Equal Pay Act (EPA) also prohibits gender discrimination in wages paid for equal work. You can read a summary of the Equal Pay Act here: http://www.eeoc.gov/laws/statutes/index.cfm  Prudent employers will audit their pay practices from time-to-time to ensure that there are legitimate business reasons for such wage differences and that they can be justified under the criteria outlined under the applicable laws.  A recent court ruling on the EPA reminds us that the employer has the burden of proving that the factors identified actually account for the wage differences at issue in a case.

CALIFORNIA COURT ISSUES MAJOR MEAL AND REST RULING:  The California Supreme Court has issued a major ruling interpreting that state’s complex laws on when meals and breaks must be provided to employees.  You can read a very helpful article about the ruling here: http://www.seyfarth.com/publications/ma041212a

Here are some highlights from the article and the ruling.  First, “Employers must ‘provide’ their non-exempt employees with 30-minute meal breaks in the sense of relieving the employees of all duty, but need not ensure that they actually cease to work during those breaks.  Second, “Employers properly time meal breaks by providing the first break no later than the end of the fifth hour of work, and the second break no later than the end of the tenth hour of work.”   Third, “Non-exempt employees are entitled to a single 10-minute rest break for a shift from 3.5 to 6.0 hours in length, two 10-minute rest breaks for a shift of more than 6.0 and up to 10.0 hours, and three 10-minute rest breaks for a shift of more than 10.0 hours and up to 14.0 hours.”  Finally, “Rest breaks ordinarily should be permitted in the middle of each four-hour work period, but need not be provided before a meal break.”

COMPUTER STATUTE LIMITED TO HACKERS, NOT EMPLOYEES: A federal appeals court has taken away from employers a tool that some companies have been using against employees who misuse computer information- the federal Computer Fraud and Abuse Act (CFAA).  The court recently ruled that the CFAA applies only to hackers, not to employees who violate a company’s computer use policies.  The case involved claims against a former employee who allegedly conspired with other employees to use their pass codes to obtain information from the company’s confidential database and to use it in a competing business. 

GINA AND EMPLOYER RECORDS: The federal Genetic Information Nondiscrimination Act (“GINA”) prohibits employers from discriminating based on genetic information and from gathering such information about an employee and/or his/her family member.   The agency that enforces GINA, the Equal Employment Opportunity Commission, recently determined that the recordkeeping requirements under GINA will be the same as under comparable federal laws prohibiting discrimination.  You can find an article discussing the specifics of these requirements here: http://www.shrm.org/legalissues/federalresources/pages/ginarecordkeeping.aspx

QUICK EMPLOYMENT LAW UPDATES:  Here are some quick employment law updates.  Speaking of the EEOC, it recently issued its new strategic plan and continued its litigation focus on what it calls “systemic” cases, i.e. cases that address a pattern, practice policy or class where the conduct at issue has a broad impact on an occupation, business or geographic area.  In case you missed it in these updates, the current issue of Utah Business magazine includes an update on the Utah Legislature and employment law, which you can read here:  http://dev.utahbusiness.com/articles/view/employment_law  Finally, a federal court recently issued a ruling in a case involving an employer sued for alleged Family and Medical Leave Act (FMLA) violations when it fired an employee who took leave saying he was sick when in fact the employee was gambling in Atlantic City.  The employee tried to claim he was depressed by his gambling losses, and thus his FMLA leave was justified.  Did he lose his case?  You bet!

Written by: Employment Attorney, Michael Patrick O'Brien
Utah State and Salt Lake SHRM legal director
Email: mobrien@joneswaldo.com
Phone: 801-534-7315
Website: www.joneswaldo.com

Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.