Federal Employment Laws

The Equal Pay Act

The Equal Pay Act (EPA) became law in 1963 as an amendment to the Fair Labor Standards Act (FLSA). Congress passed the EPA with the intent of finally prohibiting the practice of paying men and women different wages for the same work. However, upon the initial passing of the law, it did not work as intended. The FLSA lists a number of exceptions to its rules based on various factors, including the type of employment. Women employed in these exempt classes of employment were not protected by the EPA. To correct this oversight, in 1972 Congress extended the equal pay provisions of the FLSA to include exempt employees as well as nonexempt employees.

The EPA only applies to discrimination in wages based on sex. Other federal laws exist to address compensation discrimination against other protected groups, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act and the Age Discrimination in Employment Act.

In order to bring a claim under the EPA, the plaintiff must be able to show that within a single establishment, men and women are paid different wages even though they do equal work requiring equal skill, effort and responsibility and the employees have similar working conditions.

• The single establishment requirement means one distinct place of business. It does not mean an entire business or enterprise of several places of business, with limited exceptions.
  
• The equal skill requirement focuses on the skills that are required to perform the job and not the individual skill sets of each applicant. The experience, ability, education and training requirements of the position are some of the factors that may be considered.
  
• The equal effort requirement considers the physical and mental exertion required to do the job.
  
• The equal responsibility requirement looks at the degree of accountability necessary to perform the job. Minor differences in responsibility cannot correlate into a higher compensation rate.
• The similar working conditions requirement considers two factors: the physical surroundings of the working conditions (like the temperature and exposure to fumes) and any hazards associated with the working environment.

In some instances, pay differentials are permissible. In an EPA case, the employer's likely defense will be that the pay differential is based on an acceptable reason and not on the sex of the employees. Some of the permissible reasons may include seniority, merit and the quantity and quality of the work.

Employees are not required to use administrative processes to file a claim under the EPA, unlike some other types of federal antidiscrimination claims. Thus, employees who feel they are being denied equal pay for equal work based on their sex can file a civil claim against their employer without first seeking an opinion from the Equal Employment Opportunity Commission or any other administrative body.

As with other antidiscrimination laws, employers are prohibited from discriminating against employees who file claims under the EPA or who otherwise take part in an EPA process, whether as the plaintiff, a witness or in any other capacity. Employers also may not retaliate against an employee for exercising their rights under the EPA, including terminating the employee, filing a negative performance review or demoting the employee.

In addition to remedies under the EPA for sex-based compensation discrimination, employees may have state law remedies available. For more information about filing an EPA claim, contact a knowledgeable attorney practicing in employment law in your area today! There is a limited amount of time to file an EPA claim.

Drug Testing In The Workplace

Drug testing at work is a hot-button issue that weighs the employer's duty to provide a safe working environment against the employee's rights to privacy. Drug testing in certain security-related and high-risk occupations seems to be more acceptable than testing broadly throughout the private sector. Federal and state laws heavily control drug testing in the workplace, but there are still significant unanswered questions concerning the legal limits of the time, manner and procedure for conducting drug tests.

Job Applicants

It has become commonplace for employers to request that job applicants submit to screenings for illegal drug use. Moreover, it is permissible for employers to condition employment on passing these screenings. However, the problem with testing for illegal drugs is that they also have the ability to detect legal substances job applicants may be taking for medical and mental conditions. It is unlawful for employers to make employment decisions based on legal substances that may be found in a screening for illegal drugs.

Testing Current Employees

Employers have many interests in testing current employees for drug use. Employers are required to provide safe working environments and have an interest in protecting the health of their employees — both the employees who may be abusing illegal substances and the co-workers who may be harmed by employees who are abusing drugs. Employers also want to ensure productivity among their workers; those using illegal substances miss more days of work and are less productive than non-users. Employers also want to minimize their liability risks for on-the-job accidents, which can lead to disability and workers’ compensation claims as well as lawsuits.

However, these employer interests must be balanced by the employee's privacy interests, including the right to keep private activities that occur off the job private, such as medications they may be taking for legitimate medical purposes.

State law largely regulates the testing of private sector and state and local government employees for drug abuse. Some states go so far as to specifically spell out the type of testing employers may use and when they may use it, while other states allow employers to set these policies for themselves. Some states only have statutes that apply to certain state public-sector employees and remain silent on testing private employees. Given the breadth of treatment in regulating drug testing in employment across the country, those with concerns over an employer's policies should seek legal advice about their state's specific laws.

Drug testing in certain industries has become commonplace, largely because of the sensitivity of the occupations and the potential for causing great harm to the public. These include the following:

• Federal government positions that are considered "sensitive" because of national security
• Defense contractors in sensitive positions with access to information on national security, public safety and health
• Private sector employees in nuclear energy
• Private and public sector transportation employees, including pilots and aircrew; bus and truck drivers; railroad personnel; natural gas pipeline employees and maritime employees

If you have been subject to drug testing at work or have been asked to take a drug test by your employer, contact an experienced employment law attorney in your area to learn more about your rights under state and federal law.

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