Wyatt Employment Law Report

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President Obama’s Equal Pay Executive Orders to Impact Federal Contractors

By R. Joseph Stennis

In support of National Equal Pay Day, President Obama signed an executive order on April 8, 2014, that prohibits federal contractors from retaliating against workers who discuss their compensation with each other and/or in the workplace. According to White House officials, this executive order will not compel workers to discuss pay and/or require employers to publish employee compensation. Instead, it will serve as a “critical tool” to encourage pay transparency, so that workers have an additional mechanism in place for discovering violations of equal pay laws and are able to seek appropriate remedies. Whether retaliation against employees who discuss their pay on social media outlets such as Twitter or Facebook would also fall under the President’s order is uncertain, but more than likely would be protected under the contemplated executive order.

Additionally, President Obama will direct the Labor Department this week to create and issue regulations that will require federal contractors to submit to the Deparment data regarding their employees’ compensation. This data must include details regarding employee gender and race. The Labor Department will utilize the data to conduct more targeted enforcement against federal contractors with the expectation that companies will comply voluntarily with equal-pay laws — the Equal Pay Act of 1963 and the Lilly Ledbetter Fair Pay Act. It remains unclear at this point what such “targeted enforcement” will entail. However, it may result in more enforcement activity by the Department if it concludes a company is not being compliant.

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Court Allows Discovery of Social Networking Postings in Discrimination Case

By Debra H. Dawahare 

The United States District Court for the Eastern District of Indiana has recently ruled that complainants in a discrimination case must produce information posted on their MySpace and Facebook pages, in response to the defendant company’s discovery requests.  

In Equal Employment Opportunity Commission v Simply Storage Mgmt. LLC, et.al., 2010 WL 3446105 (S.D. Ind. May 11, 2010), the EEOC objected to these discovery requests: 

REQUEST NO. 1:  All photographs or videos posted by [complainant] or anyone on her behalf on Facebook or MySpace from April 23, 2007 through the present.

REQUEST NO. 2:  Electronic copies of [complainant’s] complete profile on Facebook and MySpace (including all updates, changes or modifications to [complainant’s] profile) and all status, updates, messages, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, comments, and applications (including but not limited to “How well do you know me” and the “Naughty Application”) for the period from April 23, 2007 to the present.  To the extent electronic copies are not available, please provide the documents in hard copy form.

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NLRB Issues Complaint Over Employee’s Posting on Facebook

By Edwin S. Hopson and Kim Koratsky

On November 2, 2010, the National Labor Relations Board (NLRB) announced that its Hartford, CT Regional Director had issued a complaint against an ambulance service, American Medical Response of Connecticut, asserting that the company had unlawfully discharged one of its employees for posting a negative remark about a supervisor on her personal Facebook page.  The NLRB also alleged that the employer denied the employee union representation during its investigatory interview and that it was maintaining and enforcing an overly broad internet policy.

The New York Times is reporting that this is the first case where the NLRB has stepped in to contend that criticism of an employer on a social networking site is generally a protected activity and that employers could be violating the law by punishing employees for such statements.

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