For Equal Pay Act Comparison, “Equal” Can Mean “Greater Than”

The Equal Pay Act of 1963 (“EPA”) bars employers from discriminating in the payment of wages between employees on the basis of their gender. The employees of different genders must be performing equal work in jobs which require “equal skill, effort, and responsibility, and which are performed under similar working conditions.”[1] In an odd set of facts, the Tenth Circuit case of Riser v. QEP Energy hinged on an unusual definition of “equal.”[2]

In that case, Riser, a female employee overseeing fleet operations, facilities management and management of construction projects saw her job split nearly in half and given to two men at higher rates of pay, one of whom she trained in her duties until she was fired. Her eventual claim under the EPA failed at the district court, falling to summary judgment in favor of the employer, QEP Energy (“QEP”), because she failed, in the court’s eyes, to establish a prima facie case of discrimination. The Tenth Circuit revived this claim in Riser, dismantling the employer’s argument for how the jobs of the male comparators are not “equal.”

equal pay equal rights for man and woman on work marked fair payment opportunities with same salary

The crux of the QEP’s argument was that Riser performed substantial additional duties in addition to the same tasks as the male comparators, thus making her job unequal to theirs. The duties of fleet management were delegated to the employee she trained, while the duties of facilities management and construction oversight were given to another. Since the two male employees were performing those duties 100% of the time, but those duties only accounted for 33% or so of Riser’s total duties, they were not, according to QEP, doing equal work. The Tenth Circuit found this argument to be “especially disingenuous.”[3] QEP basically split Riser’s job in two, giving each half to a male, both of which were paid significantly higher salaries. In other words, it took one woman to do the job of two men, yet she still didn’t make the same amount of money as either one of them, let alone both of them. This was too much for the court, reviving her claim and holding, basically, that “equal” work can also mean that the claimant was performing the work of a comparator and then some.

The main holding of the case should put employers on notice that courts will look none-too-kindly on pretextual hiring policies that show great disparities in the salary treatment of different genders. Another key point for employers is that any internal salary classification system with classes that correspond with specific job duties should be applied and reviewed objectively. In the Riser case, Riser’s classification level did not correspond to her duties, and her classification did not change as duties were added. She twice asked for a review and salary increase based on the classification system, and twice QEP denied her request. It’s not enough to establish an ostensibly objective and gender-neutral pay classification system – it must be prudently applied as well.

For more information on an employer’s responsibilities under the Equal Pay Act or other antidiscrimination laws, contact the attorneys at McBrayer, McGinnis, Leslie & Kirkland, PLLC.

Luke WingfieldLuke A. Wingfield is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Wingfield concentrates his practice in employment law, insurance defense, litigation and administrative law. He is located in the firm’s Lexington office and can be reached at or at (859) 231-8780. 

This article is intended as a summary of federal and state law and does not constitute legal advice.

[1] 29 U.S.C. 206(d)(1)

[2] Riser v. QEP Energy, No. 14-4025 (10th Cir. January 27, 2015)

[3] Ibid. at 12

Facebook is Not a Picket Line

The National Labor Relations Act protects the rights of employees to connect and address conditions at work, and recent decisions have held that this protection extends to certain work-related conversations on social media.[1] However, it has yet to be determined exactly how far this protection will reach.

The issues and problems attendant with the rapidly-evolving area of social media and its uncontrolled ascent into every aspect of both home and work lives dominate so much of the discussion of workplace issues that one wonders if employers and employees will ever fully adjust to this new connected paradigm. The latest development involving social media and the workplace comes via the D.C. Circuit, which recently considered whether postings made on a union’s Facebook page constitute speech, and potentially illegal coercion, on the part of the union.

Bucharest Romania - Jan 23 2014: Photo of Facebook web page. Facebook is an online social networking service. Its name comes from a colloquialism for the directory given to students at some American universities.

In Weigand v. NLRB, a union established a private Facebook page as a method to update union member bus drivers on picket lines and other information during a six-day strike.[2] Tensions ran high during the strike, and several union members posted statements on the Facebook page disparaging those who crossed the line, referring to them as “scabs” and asking where to bring the “Molotov cocktails.”[3] The ability to post on the page was restricted to union members only. A non-union employee filed an unfair labor practice charge with the NLRB, alleging that he had been restrained and coerced, a violation of Section 7 of the National Labor Relations Act. The crux of the employee’s arguments is not that the members posting the comments were acting on behalf of the union, but rather that the union should have been responsible for those postings, deleting and disavowing them.

Weigand v. NLRB is particularly interesting because of how various agencies and entities have attempted to define what social media is, and is not. The NLRB has generally taken the position that social media is a virtual water cooler for purposes of concerted employee activity, and in Weigand, NLRB General Counsel took the position that social media can also be a picket line, with the attendant duties for the union to monitor and control conduct.[4] The D.C. Circuit rejected this idea wholly, citing key differences between a public, physical line of confrontation and a private online forum. The court found that while the union may ultimately be held accountable for the actions of its members in certain picket line circumstances, the actions of members cannot be imputed to the union absent some sort of agency relationship, where the members are working on behalf of the union. The union in Weigand did not support, authorize, or condone the messages posted on the private Facebook page, and the court refused to hold the union accountable for them.

This case suggests that courts will be loath to hold entities accountable for the social media postings of others when the entity merely establishes a forum for conversation and the offending posters do not speak on behalf of that entity. At the same time, both employers and unions should monitor public forums over which they have control, as commentary there may rise to actionable or illegal levels. In other words, it may be better to be generous with the delete function, than to be sorry.

For more information on how the NLRB regards social media conduct in relation to employers, employees and unions, contact the attorneys of McBrayer, McGinnis, Leslie & Kirkland, PLLC.

Amanda StubblefieldAmanda B. Stubblefield joined McBrayer as an Associate in 2014 as a member of the litigation department. She received her J.D. from the University of Kentucky College of Law in May of 2014 and was elected to the Order of the Coif. Ms. Stubblefield focuses her practice on general litigation, administrative law, and employment law.

This article is intended as a summary of state and federal law and does not constitute legal advice.

[1] See Costco Wholesale Corp., 34-CA-012421 (Sept. 7, 2012); See also Triple Play Sports Bar and Grille, 34-CA-012914, 34-CA-012926 (Aug. 22, 2014).

[2] Charles Weigand v. National Labor Relations Board, No. 14-1024 (D.C. Cir. 2015).

[3] Id. at 6.

[4] Lauren K. Neal, The Virtual Water Cooler and the NLRB: Concerted Activity in the Age of Facebook, 69 Wash. & Lee L. Rev. 1715 (2012), (last accessed May 4th, 2015).

A Title VII Transition?: Protections for Transgender Persons in the Workplace

Three years ago, the EEOC issued an opinion which held, for the first time, that discrimination against transgender persons based on gender identity is impermissible sex discrimination under Title VII of the Civil Rights Act of 1964. See Macy v. Holder (Apr. 20, 2012). Last month, the EEOC revisited discrimination against transgender persons and released a decision that sheds some light on how the practical applications of this finding may affect employers, holding that certain bathroom restrictions for a transgender employee constituted discrimination. See Lusardi v. McHugh (Apr. 1, 2015).

conceptual - a pawn expelled from group

In Lusardi v. McHugh, [1] a transgender employee of a civilian contractor at a military facility in Alabama was forced to use a single-use restroom at the facility. When that restroom was out of order or being cleaned, she used the women’s restroom, each time receiving confrontation from her supervisor, who suggested that she could not use those facilities until she had proof that she had undergone full gender reassignment surgery. Another supervisor repeatedly referred to her by her former male name and male pronouns in front of other co-workers.

In ruling for the employee in Lusardi v. McHugh, the EEOC made a forceful statement on how it viewed the circumstances at issue, stating:

“This case represents well the peril of conditioning access to facilities on any medical procedure. Nothing in Title VII makes any medical procedure a prerequisite for equal opportunity (for transgender individuals, or anyone else). An agency may not condition access to facilities — or to other terms, conditions, or privileges of employment — on the completion of certain medical steps that the agency itself has unilaterally determined will somehow prove the bona fides of the individuals’ gender identity.”[2]

While the employer in Lusardi v. McHugh was a federal agency – the Army – this case should serve as a warning to private employers as well – the EEOC will pursue cases where it finds evidence of discrimination as to transgender individuals. In fact, it already has done so in two cases, one of which settled, and the other which is currently pending and recently survived a motion to dismiss.[3]

Although transgender persons are not currently considered a protected class for Title VII purposes, Title VII does protect against sex-based discrimination, a line that both the EEOC and courts seem more willing to walk in these cases. The Justice Department has already taken a stance. Recently, the Justice Department recently brought suit against Southeastern Oklahoma State University and the Regional University System of Oklahoma for violations of Title VII of the Civil Rights Act of 1964 by discriminating against a transgender employee on the basis of her sex and retaliating against her when she complained about the discrimination. Explaining the Justice Department’s decision, Attorney General Eric Holder announced that the Department believes Title VII’s prohibition against sex discrimination encompasses and includes protection for claims based on an individual’s gender identity, including transgender status.

Employers should be cognizant of these cases and learn to effectively and compassionately coordinate with their transgender employees, avoiding discriminatory practices and providing training on employee conduct with respect to transgender employees.

For more information and understanding in how to help transgender employees, contact the attorneys at McBrayer, McGinnis, Leslie & Kirkland, PLLC.

Amanda StubblefieldAmanda B. Stubblefield joined McBrayer as an Associate in 2014 as a member of the litigation department. She received her J.D. from the University of Kentucky College of Law in May of 2014 and was elected to the Order of the Coif. Ms. Stubblefield focuses her practice on general litigation, administrative law, and employment law.

This article is intended as a summary of state and federal law and does not constitute legal advice.
[1] Lusardi v. McHugh, EEOC Appeal No. 0120133395 (April 1, 2015)

[2] Ibid. at 9

[3] EEOC v. Lakeland Eye Clinic, P.A. (M.D. Fla. Civ. No. 8:14-cv-2421-T35 AEP filed Sept. 25, 2014); EEOC v. R.G. & G.R Harris Funeral Homes, Inc., (Civ. No. E.D. Mich. 2:14-cv-13710-SFC-DRG)

Local Court Ruling Takes the Hands off of Hands On: Tensions between Fairness Ordinances and Religious Freedom Restoration Acts

Businesses should keep a close eye on a case that continues to develop in Lexington, Kentucky, as it highlights the current tensions between emerging, evolving antidiscrimination paradigms and rights of free expression and freedom of religion as they exist under both federal and state laws.

The case of Hands On Originals v. Lexington-Fayette Urban County Human Rights Commission[1] began when a local group, the Gay and Lesbian Services Organization (“GLSO”), approached Hands On Originals (“HOO”) about printing t-shirts for an upcoming event, the Lexington Pride Festival. HOO initially issued a quote to the organization for the shirts, but after learning that the design and message of the shirt, HOO informed the GLSO that it “could not print the t-shirts Serious judge about to bang gavel on sounding block in the courtbecause those promotional items did not reflect the values of HOO and HOO did not want to support the festival in that way.”[2] HOO offered to contact other printing companies to get the work done at the quoted price, but GLSO filed a complaint with the Lexington-Fayette Urban County Human Rights Commission (“HRC”), stating that this denial of service by HOO was a violation of Lexington’s “Fairness Ordinance,”[3] which prohibits public accommodations from discriminating against individuals on the basis of sexual orientation. The HRC held that HOO violated the ordinance and discriminated against the GLSO on the basis of the sexual orientation of its members. HOO appealed the order to Fayette Circuit Court.

In the opinion in Hands On Originals, the court reversed the order and opinion of the HRC, holding that (1) the order from the HRC violated the right of HOO to be free from compelled expression, and (2) the order violated the right of HOO to free exercise of religion.

Concerning freedom of expression, the court was careful to make the distinction that it believed HOO refused service to GLSO on the basis of the message in the asked-for product and not the identity of the organization or its members themselves. Indeed, it was undisputed in the case that HOO neither knew nor inquired of the sexual orientation of the representative of the GLSO. The court applied strict scrutiny review and ruled that to require HOO to print the shirts with a message contrary to their stated beliefs would, in effect, compel them to speak, and there was no evidence to suggest the denial of service was based on anything other than the message conveyed in the order. The court cited Boy Scouts of America v. Dale[4] – a case upholding the right of an organization to expressive association in the face of public accommodations laws – for the proposition that a for profit corporation can have First Amendment rights.

The court’s second holding, implicating free exercise of religion, is of particular interest to businesses in the current climate. The court invoked KRS §446.350, Kentucky’s version of the Religious Freedom Restoration Act (“RFRA”), to hold that the HRC’s Order placed too great a burden on the exercise of religion of HOO and its owners. This provision is similar to laws in several other states, and provides that “[g]overnment shall not substantially burden a person’s freedom of religion,”[5] unless the government can prove there is a compelling interest and uses the least restrictive means to further the interest. Kentucky statutes recognize that the term “person” can include businesses, which, as noted by the court, is consistent with the Supreme Court’s recent decision in Burwell v. Hobby Lobby.[6] The denial of service, according to the Hands On court, was based upon the sincerely-held religious beliefs of HOO and its owners. Requiring HOO and its owners to print the shirts would, according to the court, force them to convey a message that conflicts with their religious faith, substantially burdening their free exercise of religion.

This ruling is likely to face appeal, but it highlights the tension between the growing number of both state RFRA laws and local antidiscrimination ordinances that confer protected status on the basis of sexual orientation and gender identity. For more information on how laws such as Kentucky’s Religious Freedom Restoration Act or state or local fairness ordinances can impact your business, contact the attorneys at McBrayer, McGinnis, Leslie & Kirkland, PLLC.

D. TrimbleAndrew H. Trimble is an associate in the Lexington, Kentucky office. Mr. Trimble focuses practice on general litigation, employment law and criminal defense. Mr. Trimble can be reached at (859) 231-8780, ext. 136 or

[1] Hands On Originals v. Lexington-Fayette Urban County Human Rights Commission (14-CI-04474)

[2] Id. at 6.

[3] Ordinance 201-99; Section 2:33

[4] Boy Scouts of America v. Dale, 530 U.S. 640 (2000)

[5] KRS §446.350

[6] Burwell v Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2768-69 (2014)

The Cost of Buying Silence – Non-disclosure Provisions Run Afoul of Federal Agencies

There’s an inherent tension in requiring an employee to sign an agreement restricting his or her ability to discuss activity in the workplace. On one hand, employers with confidential business practices and trade secrets need to maintain those investments in intellectual capital both during and after employment. On the other, these agreements can stifle both the rights of employees to seek redress of workplace grievances as well as restrict the ability of regulatory agencies to investigate and correct employer practices or violations of the law. The tenor of recent enforcement actions by various agencies as to strict non-disclosure agreements (“NDAs”) and non-disclosure provisions in separation agreements should give employers cause to re-evaluate their own attempts to limit liability.

The SEC and EEOC may not have much in common from a regulatory mandate, but both agencies have been faced recently with the thorny issue of stifled employee cooperation and how it affects their missions.

The Whistleblower Protection Enhancement Act of 2012 strengthened protections for such whistleblowers who can disclose evidence of waste, fraud or abuse to federal regulators. In October of last year, the SEC was asked by several members of the House Financial Services & Oversight Community to giva young man showing a confidentiality agreement documente added scrutiny to employer agreements that potentially violate whistleblower protections. On April 1 of this year, the SEC announced the first-ever enforcement action against a company for overly-restrictive language in confidentiality agreements, charging KBR, Inc. with violations of whistleblower protections. KBR had non-disclosure provisions in employee agreements regarding internal investigations that prohibited discussing any matters with outside parties without prior approval of the legal department, warning that employees could face discipline or be fired for doing so. Even though there were no actual instances of this provision stifling a whistleblower, the SEC determined that such a blanket prohibition on that conduct could have a chilling effect on the willingness of employees to report conduct to regulators.

The EEOC has brought similar enforcement actions, such as the two it filed last year concerning separation agreements – EEOC v. CVS Pharmacy, Inc. no. 1:14-cv-00863 (N.D. Ill. 2014) and EEOC v. CollegeAmerica Denver, Inc., no. 14-cv-01232-LTB (E.D. Co. 2014). In both of those cases, the EEOC brought actions against employers with separation agreement forms that included strict confidentiality clauses and provisions forbidding “nondisparagement.” The EEOC’s position is that, similar to the provisions challenged by the SEC, these elements of separation agreements can be construed as to prevent an employee from discussing workplace conditions with the EEOC. The agreements didn’t go far enough, in the EEOC’s eyes, to make it clear that employees can participate in investigations or file charges without violating the agreements. While the EEOC hasn’t been successful in either case (both cases were largely unsuccessful at the trial court level, although for largely technical reasons – both are pending final resolution), these actions are likely the tip of the iceberg for enforcement and give insight into issues the EEOC will likely focus on.

Even the National Labor Relations Board has been scouring employee handbooks, looking for language of confidentiality that could stifle protected concerted employee activity under §7 of the National Labor Relations Act.

With all of these agencies on the warpath, employers should take care in drafting any agreements with non-disclosure provisions and review current forms for language that might run afoul of whistleblower protections, employee rights to cooperate with agencies, or even employee rights to discuss workplace issues with each other.

First and foremost, rather than including sweeping provisions of confidentiality, employers should narrow the types of information to which confidentiality provisions apply. Agreements should also include carve-out language that makes clear to employees that any rights or protections available to them under whistleblower or employment laws are not hindered in any way by these terms of the agreement. Provisions should explicitly state that employees also may participate in agency investigations. This carve-out language should be bold and prominently-placed.

Finally, the Whistleblower Protection Enhancement Act requires that non-disclosures for federal employees include the following language:

“These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.”

These types of enforcement actions will only increase in number, so employers should review and revise any agreements with non-disclosure provisions that could be viewed as a restriction on employee rights or interference with regulatory investigations.

If you need a thorough review of your non-disclosure or separation agreements in light of these new enforcement actions, contact the attorneys at McBrayer, McGinnis, Leslie & Kirkland, PLLC.

D. TrimbleAndrew H. Trimble is an associate in the Lexington, Kentucky office. Mr. Trimble focuses practice on general litigation, employment law and criminal defense. Mr. Trimble can be reached at (859) 231-8780, ext. 136 or

The Big and Small Implications in Perez v. Mortgage Bankers Association

There are two important takeaways from Perez v. Mortgage Bankers Association,[1] one with a broad scope and the other much narrower. The broader ruling exempts agency interpretations of laws and regulations from any notice and comment requirements under the Administrative Procedures Act (“APA”), allowing agencies to substantially alter interpretations without notice. On a different note, however, is the finding that Department of Labor (“DoL”) Fair Labor Standards Act (“FLSA”) classification interpretations are subject to change at any moment.

In 1999 and 2001, the DoL issued letters stating that mortgage-loan officers do not qualify for the overtime “administrative exemption” to the FLSA. The department promulgated new regulations in 2004, and in 2006 issued a new opinion that mortgage loan officers now DID qualify for the exemption. In 2010, though, the DoL withdrew the 2006 opinion and issued a new “Administrator Interpretations Letter,” again stating that mortgage loan officers are not exempt from the overtime regulations under FLSA. The Mortgage Bankers Association sued enjoin in the 2010 interpretation, relying on the 1997 D.C. Circuit Court of Appeals decision of Paralyzed Veterans v. D.C. Arena,[2] in which the Court held that agencies making significant changes to interpretations of regulations must follow the APA’s notice and comment procedures. In a unanimous decision, the Supreme Court held that Paralyzed Veterans was decided wrongly, as it “improperly imposes on agencies an obligation beyond the ‘maximum procedural requirements’ specified in the APA.”[3] The Court made the distinction between “legislative rules” that have the force and effect of law and “interpretative rules” that merely provide guidance as to how the agency views a law or regulation. This holding provides agencies with the ability to revise, amend and overrule their own interpretations without notice or public input. The larger effect of this holding is that, as political administrations change and policies shift, administrative interpretations can, and likely will, change as well.

With the holding of weightier import dispatched, the lesser ruling – of potentially great significance to employers – now merits a brief discussion. The DoL has issued a large number of Opinion Daily Time Record With Blank Payroll Time SheetLetters over the years, giving guidance as to how the various exemptions of the FLSA overtime rules apply. What this case makes clear, however, is that these interpretations are not set in stone and employers should watch DoL opinions with a wary eye for future changes. When in doubt, employers should err on the side of caution. DoL Opinion Letters should be scrutinized in light of Perez, comparing the opinion with modern applicable tests, regulations and interpretations.

Of additional interest in relation to the exemption classifications are the coming changes to FLSA overtime exemption rules. The DoL expected to propose new rules in February, but these proposals are still forthcoming. The new regulations are expected, however, to increase the exempt minimum salary amount significantly, as well as provide narrower classifications to the exemption categories (more on the proposed rules can be found here). These new rules may render a great many exemption classifications moot, as the department is widely expected to greatly limit the overtime exemptions available.

Ben RiddleBenjamin L. Riddle  is an associate in the Louisville, Kentucky office. Mr. Riddle is a member of the firm’s Litigation team, where he focuses his practice on employment law, commercial disputes and personal injury matters. Mr. Riddle can be reached at (502) 327-5400, ext. 305 or

This article is intended as a summary of federal or state law or regulation and does not constitute legal advice.

[1] Perez v. Mortgage Bankers Association, No. 13-1041, 575 U.S. ___ (2015)

[2] Paralyzed Veterans of Am. v. D. C. Arena L. P., 117 F. 3d 579 (D.C. Cir. 1997)

[3] Perez at 7

Employers – Are You Prepared for New NLRB Election Rules?

On April 14th, the new National Labor Relations Board (“NLRB”) election rules came into effect, creating a potential headache for employers. Perhaps most critically, the timeline between the initial petition for union election and the election itself may be as short as 13 days, giving employers limited notice of potential union organization and activity. These accelerated elections are derisively (but maybe not unjustly) referred to as “ambush” or “quickie” elections.

Under these new rules, unions file with the NLRB electronically, simultaneously providing notice to the employer, who must then post a notice of the election with all the attendant details. Seven days later, a pre-election hearing is held, covering only issues concerning the election. Before thCalendar September 2014is hearing, the employer is now required to submit a list of prospective voters and other relevant information such as personal e-mail addresses and telephone numbers of employees. These rules allow for union elections within 13 to 22 days after filing of the notice by the union, signaling a significant departure from the old rules which incorporated an automatic 25-day waiting period following the direction of election and allowed employers 42 days to conduct informational campaigns. The accelerated timeline and additional notice requirements placed on employers give unions additional advantages in both timing and information when it comes to initial union election.

The best strategy for employers under these rules is to adopt a policy of year-round campaigning and strategizing to counter the threat of ambush elections. Proactive measures to foster a healthy workplace culture, promote strong employee relations and educate workers on how unions can affect the workplace are crucial in the new regulatory environment. For more information on how these rules can affect you as an employer, contact the attorneys of McBrayer, McGinnis, Leslie & Kirkland, PLLC.

Ben RiddleBenjamin L. Riddle  is an associate in the Louisville, Kentucky office. Mr. Riddle is a member of the firm’s Litigation team, where he focuses his practice on employment law, commercial disputes and personal injury matters. Mr. Riddle can be reached at (502) 327-5400, ext. 305 or

This article is intended as a summary of federal or state law or regulation and does not constitute legal advice.