You and the Law
For government contractors required to have an affirmative-action plan (AAP), the federal investigating agency, OFCCP, is auditing employers for pay-comparison equity (males vs. females; nonminorities vs. minorities) under a new statistical formula.
During audits, the agency is changing its Tier 1 analysis from 2 to 5 percent. Tier 1 analysis is intended to apply a simple statistical test to identify payroll differences that could be statistically significant (and bear more scrutiny). It also can be used as an administrative tool by employers to compare their pay equity to what the OFCCP investigators might find on an audit, allowing inequities to be addressed in advance of an audit.
How does this tiered analysis work? Tier 1 flags potential pay inequities, which should be further analyzed in a Tier 2 OFCCP-utilized compensation analysis. The process generally evaluates differences in pay when comparing the average wages/salaries of females (and of minorities) to the average wages/salaries of male employees by job title.
Under such an analysis, step one is to identify all situations where the difference in pay is greater than 5 percent (used to be 2 percent) and then count the number of situations where females (minorities) are disadvantaged and the number where males (nonminorities) are disadvantaged. Then in step two, if the percentage of affected disadvantaged females (minorities) is at least 10 percent (used to be 30 percent) and is three times larger than the percentage calculated for males (nonminorities), the establishment is likely to be flagged for further analysis by the OFCCP.
Washington State Supreme Court Maintains the Prelitigation “Work Product” Privilege Umbrella
In our soggy state, umbrellas enjoy special status. So do lawyer investigative records and interviews for clients anticipating litigation.
In the December 27, 2007, case of Soter v. Cowles Publishing Co., No. 78574-1, Washington’s State Supreme Court followed federal court decision in the 3rd (DE, NJ and PA); 4th (MD, NC, SC, VA and WV); 5th (LA, MS and TX); 8th (AR, IA, MN, MO, NE, ND and SD); and 11th Circuits (AL, FL and GA), lawsuit disclosure of a lawyer-retained private investigator’s witness interviews and notes. The court defined this broad protection and privilege thusly:
“The protection is triggered ‘prior to the official initiation of litigation and extends beyond the official termination of litigation where the work product doctrine is concerned, it is well-settled that the protection applies to materials created in anticipation of litigation, even after the litigation has terminated.
“All of the notes taken by attorneys or other members of a legal team when interviewing witnesses constitute opinion work product that will be revealed only in rare circumstances.”
Before starting any sensitive-issue investigation, it is wise to have one’s lawyer initiate the privileged investigation in writing, have the lawyer hire the investigator/consultants performing the study, receive instructions on how to stamp or mark all related documents as privileged and confidential, and maintain separate privileged-document files.
Fate of the Federal “No Match” Rules Still Up in the Air
Updating an earlier article, the federal government has reissued its “no-match” rules and appealed last year’s federal district court ruling striking down the originally proposed rules that would require employers to fire workers whose names do not match their social security numbers. Clearly the Department of Homeland Security Agency intends to press this issue.
“Me Too” Evidence May Be Used Against Employers in Age Discrimination Cases
Plaintiffs in discrimination cases often try to introduce into evidence the testimony of nonparty coworkers who claim they too suffered discrimination from their supervisors even though their supervisors were not involved in the adverse employment decision being challenged by the lawsuit plaintiff. The legal issue is whether or not this other-department, other-supervisor testimony is relevant. In a case of a company-wide reduction in force, the U.S. Supreme Court held under the Age Discrimination in Employment Act (ADEA) that such “me too” testimony could be relevant evidence where it is not unfairly prejudicial to the employer and the trial court must weigh and balance these factors: relevance and prejuidicial impact.
The case involved plaintiff Ellen Mendelsohn, formerly an employee of Sprint/United Management Company’s Business Development Strategy Group, who sued her ex-employer when Sprint terminated her as a part of an ongoing, companywide reduction in workforce.
In support of her claim, Mendelsohn sought to introduce testimony by five former Sprint employees who claimed that their supervisors had discriminated against them because of age. Three of the witnesses alleged that they heard one or more Sprint supervisors or managers make remarks denigrating older workers. One claimed that Sprint’s intern program was a mechanism for age discrimination and that she had seen a spreadsheet suggesting that a supervisor considered age in making layoff decisions. Another witness was to testify that he had been given an unwarranted negative evaluation, and was banned from working at the company because of his age, and that he had witnessed another employee being harassed because of her age. The third witness claimed that Sprint had required him to get permission before hiring anyone over the age of 40, that after his termination he had been replaced by a younger employee and that Sprint had rejected his subsequent employment application.
None of the witnesses worked in the Business Development Strategy Group with the plaintiff, nor had any of them worked under the supervisors in her chain of command.
Sprint claimed that the “me too” evidence wasn’t relevant because the former workers were not “similarly situated” to the plaintiff or her separate group or department events under a different supervisor.
The court rejected any blanket “same supervisor” requirement. Instead, it ordered a balancing test to be held by each federal trial court judge:
“The question whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact-based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case. Applying Rule 403 to determine if evidence is prejudicial also requires a fact-intensive, context-specific inquiry.” Sprint/United Management Company v. Mendelsohn, No. 06-1221, Feb. 26, 2008] MF
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