Paycheck Fairness Act

[justadumbguy]

There is also this issue to consider regarding differing pay. A company is hiring 2 accountants offers both of them 30,000 a year. First one says ‘great when can I start?’ Second one says ‘I’d like to take the job but I just can’t do it for 30,000 a year could you make it 32,000?’ Company / Business Owner / Hiring Manager decides they want this particular candidate or don’t want to have to go through the hassle of re-interviewing people again and says ‘Sure we can do 32k.’ Now you have a discrepancy, but I can’t see that you have an ‘issue.’

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[Jiggers]

My ex-roomate has a business that grosses well over 7 figures a year. He has a staff of five employees only and pays them more in salary than himself. Talk about a generous owner which he is. He feels they do great job and pays them well.

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[DBP]

Well see now . . . There ya go. It seems like both right and left are in agreement on one part of this issue. To wit: You shouldn’t discriminate on the basis of gender.

Glad we got that out of the way. But then, there’s still this, per skeeter:

So long as the employer is not violating any employment laws, I don’t think the employer has to answer to the government or any other employees on why she pays some employees more or less than others.

Well, no and yes . . .

No, the boss normally shouldn’t have to justify salaries to anyone. But yes, if you’ve got a situation where discrimination can be reasonably inferred, then I think the boss should have to answer to the government about why he pays some employees more than others.*

So when would that be, exactly? This is the crux of the matter, as I see it. (As opposed to the question of whether discrimination is ok — since everyone seems to agree that it’s not.)

Anyhoo, it seems that small business owners were worried (with some justification, I think) about disgruntled employees dragging them into court with frivolous lawsuits. So what we really need to figure out on this issue is: Just how high is/was/would’ve been the bar for bringing a legal action under “Paycheck Fairness”? Anybody know?

 

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*An analogy to this situation would be the “probable cause” question in law enforcement. If you drive the speed limit and your lights are working, the cops don’t have any reason to stop you. In other words, they can’t stop you just because you’re “driving while Black” or whatever. However, if a cop stops you for zipping through a red light, and while he’s giving you a lecture he hears noises coming from the trunk, then he has “probable cause” to do a vehicle search.

And for your sake I hope it really IS just some potted plants rolling around back there — like you told the officer — and not some planted pot.

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[Bostonman]

I run a small business (50 people) and I don’t want the government coming in and telling me that I need to disclose pay rates to my employees. I have fired an employee for sharing pay with some other employees before. Not only that but half of my department is woman and in some cases the woman are paid more than the men. What happens when the men find out they are paid less?

I don’t need the government getting into my companies business.

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[DBP]

—I thought you worked as a full-time accountant for some company, Boston. You can do that and run a 50-person business as well? Impressive.

Anyway, I could be wrong, but I’m pretty sure that no one’s proposing any law that says you have to publish how much you pay your employees. On the other hand, an employer should not be able to prohibit employees from discussing their pay with others, and I believe that is already the law according to the NLRA (National Labor Relations Act). So you may have broken the law if you fired someone for no other reason than that. (Neener-neener!)

Employers have historically used non-disclosure agreements to punish employees for trying to unionize — which is also illegal under the NLRA. It’s kind of sneaky how they do it. When there’s a union drive, the boss will fire the organizers. But he won’t say he’s firing them them because they tried to organize a union. No. He’ll say he fired them because they broke the company’s non-disclosure agreement.

We’re not talking “management prerogative” here, folks. We’re talking sleaze.

In an upcoming post, I’ll expand on why it should never be prohibited to discuss your pay with others. It’s all about the “invisible hand” of the marketplace (oooooooo! ahhhhhhhhh!) so I expect all good capitalists will be with me on this.

–David

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[kootchman]

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[kootchman]

not exactly…. NLRB has lost a few. In fact one of the issues the SBC is throwing against the wall is reasserting the notion of dissent and disruption, and the NLRB has been notably defensive. NLRB at the moment is heavily tilted towards promoting unionization, and gives the widest latitude in can construct to favor paycheck peeking. I think they like to foment dissent as a union building tool,

Excerpts .http://www.law.upenn.edu/journals/jbl/articles/volume6/issue1

Once it has been established that the employer’s policy interfered withthe employees’ Section 7 activity, the employer has the opportunity to advance a legitimate business justification for the rule 7

Surprisingly, employers have in general been rather timid in

advancing possible justifications for the adoption of PSC rules. Employer shave advanced only a single argument to support their claims form aintaining PSC rules. Employers have continuously argued that PSC rules are necessary as a way of limiting “jealousies and strife among employees.

49

The argument is based on the commonsensible

understanding that a differentiation in wages between employees will generate internal conflicts among them.Employees will observe the wage difference, but may not have all of the information necessary to evaluate

the justification for the differing”. (NLRB has been hostile to this interprettion to say the least)

This NLRB has a destiny with republican appointees… I suspect. It is a political appointee board. The recent Boeing spate pitted Boeing against the measured calculation of electoral vite counting. Once NC weighed in NLRB went into serious compromise, There is growing disdain and the Obama administration has taken some calculated risks… and some strategic retreats, There was some face saving,… but Boeing is building new plants in SC…and aren’t ready to assign the successor to the 737…..yet. The notion that prohibition in discussing salary is disruptive of organizing rights is easily avoided, at least more so of small business. There have been so many rulings, overturned rulings, reinstated overturned rulings .. pretty much lays bare the heavy thumb of “politics” over predictable law. NLRB is not settled case law … it’s politics. They pull the trigger more often in right to work states…sorta dims the argument its used as a union busting strategy… more often it is used to get NLRB to wade into the fray to get support for unionization.

But this is how silly they can get…. Employers intent I suspect, with all due respect DBP is more to avoid dissension than union busting. The NLRB has twisted and contorted PSC to favor the suggestion of restricting acting in concert than the legitimate interest of employers. It also depends on how its done.

NLRB has weighed in .. as a pro union force, it will expand to the ridiculous the notions of “acting in concert”.. trumping “legitimate business interests ” Seems to be regional too.

Non union shops, which prevail in number, can rest fairly easy…

“One reason employers may flagrantly disregard the fact that PSC rules are generally illegal under the NLRA is because they view the law as impotent, or as Columbia Law Professor Cynthia Estlund has recently putit, “ossified.”‘ “

8 7

One exception gaining traction.. and upheld in circuit courts overruling NLRB are compensation plans as part of the competitive structure and harmful if revealed outside the confines of confidentiality, violate the legitimate business interests and PSC has been upheld.

And… when small business says it is over regulated and never sure of the shifting sands of uncertainty…. NLRB is a good place to start. Nothing like having to contend with this crap to make a few widgets. If you make a good widgets and manage to grow to 100 employees… Go offshore and have them made… in Malaysia They appreciate the jobs, any jobs, that keep the rice bowl full. Then all you have to worry about is getting customs documents. These are the things that help drive away domestic production and jobs. You don;t have to deal with this crap. Let Aban hire all his extended family .. employee relations solved.

Ya know how it works DBP… where there is a will, there is a way. Small business is not BSing when they say the regulatory burden is crushing them.

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[JoB]

skeeter..

“oftentimes the employee will simply let things play out and not worry if she’s leaving a little money on the table because she thinks her employer is treating her well.”

trust me.. if the employee has any idea that an accountant .. male or female.. that she has to train to company standards is making more than she is..

she does not think her employer is treating her well

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[JoB]

justadumbguy..

“There is also this issue to consider regarding differing pay. A company is hiring 2 accountants offers both of them 30,000 a year. First one says ‘great when can I start?’ Second one says ‘I’d like to take the job but I just can’t do it for 30,000 a year could you make it 32,000?’ Company / Business Owner / Hiring Manager decides they want this particular candidate or don’t want to have to go through the hassle of re-interviewing people again and says ‘Sure we can do 32k.’ Now you have a discrepancy, but I can’t see that you have an ‘issue.’ “

the issue is this..

if the employee asking for more money is a woman, she is much less likely to get the job

if the employee asking for more money is a man, he is likely to get the job for the salary he asked for.

a woman who asks for more money is perceived as troublesome.

a man who asks for more money is perceived to have a well developed sense of his own worth.

i am too tired to go find the research for you tonight.. but it is available.

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[JoB]

DBP..

if the female employee in question is expected to train the male employee who makes more than she does…

is that probable cause?

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[kootchman]

Happiness and satisfaction are relative. It may be there are other benefits that do indeed make the “sum’ of her job to be regarded as “treating her well”.

There are as many variables in how an employer is regarded as there are variables in how an employee is regarded.

I once saw a study conducted for ASLA, a factory with an outside lunch facility, water feature, shade trees, bbq stands, could attract and retain lower wage workers and was regarded as being a “better place to work”… when compared to an older, traditional industrial building. Slides were shown comparing the two. workers were shown the production floor, the product, the process. They were told one plant is across the road from the other, making the same product. The parking spaces were closer to the pant, with shade trees to cover the cars during the hot summer. The “cost” of the newer building meant lower wages. almost 1/3 of the workers would take a lower wage, to work in the “newer”, plant. It was a “better” place to work. Some would take a pay “cut” to work in the “new” building,… interestingly…women chose to accept less pay, far more often then men.

Some people like to fly kites, some like to hunt and kill animals in the woods, some like to read books, there is hardly a universal value set.

Lots of implications here. If you were to expand… would you set up a separate company across the road ro do the work? would you set up a manufacturing “licensee: a totally separate entity with a licensee fee charged? “Arms length” production?

Money, money changes everything… Cyndi

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[kootchman]

JoB you remind me of a small subset of African American that insist they are due generation transfer reparations. The time to make that case was around 1866. Some ships have sailed already… time moves on.

JoB’ism

a woman who asks for more money is perceived as troublesome.

a man who asks for more money is perceived to have a well developed sense of his own worth.

Women dominate the HR field. They dominate the HR consulting industry, , 72 per cent of HR employment is female.

So… if women who ask for raises are considere “troublesome”.. that would mean their own gender is making that judgement 72 per cent of the time.

Conversely, most of the time, it is women that determine that a male asking for a raise has a better sense of their self worth. Is that your position?

You can’t have it both ways.. not this piece of cake. For heavens sake, half the work force is women. You think that has no impact?

Up until three years ago, women were starting new businesses at faster rates then men.

The good ole boys are in the minority, drinking cans of Pabst Blue Ribbon in bars that ignore no smoking rules and reminiscing about the good old days when they would make a defective product for a little work place humor and send it down the line.

The work force of 2012 is not the one that is indelibly and irrevocably imprinted in your wide search parameters for injustice everywhere, under every stone. Sometimes, it’s a good thing to stand back and say.. “pretty good job”… and move on. Imagine a woman with an ankle tattoo getting an interview, let alone a job in 1970..? Let alone being sleeved up.

Bottom line here is.. you have the freedoms, the numbers and know enough about the business culture in 2012 to make negotiations work in your favor. If you don’t, have negotiating skills… you will not have income parity. If you don’t want to drown, learn to swim. No federal or state law will replace learning to swim… even if the city council makes it illegal to drown… you have to do the swimming.

http://www.hcamag.com/resources/hr-strategy/why-are-there-so-many-women-in-hr/112825/

http://www.opm.gov/studies/Trans1.pdf

I can cite current, relavent statistics. It’s not 1970 anymore.

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[redblack]

JoB you remind me of a small subset of African American that insist they are due generation transfer reparations.

kootch, you remind me of someone who has a very narrow view of the world that revolves mostly around you. in your mind, anyway.

can you make a point without insulting people? or is it hard-wired into your DNA to be dismissive of those who disagree with you?

72 per cent of HR employment is female.

and they make 72 percent of what men make.

nice, round numbers.

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[kootchman]

No they actually make appreciably more. Your narrow view refuses to see the endless links that show on over 330 markets women make more than men, The economic variabilty occurs when a CHOICE is made to raise a family… and some of that energy is diverted to child rearing. It;s a bullshit stat and you know it. It’s been linked too many times. wage gains are being made by women well over those of men. For one, they are better educated.

So the argument posed was .. women are negativley viewed when they asked for a raise… and data shows that view is in the hands of women who control that view by a wide majority. Since they dominate the HR field. IF it is true… then it’s not a male gender bias is it?

I am not dismissive. Stats are derived from data sets. The implications of causality are lightly treated here. The stat does not stand on its own. There are reasons. Because women in the aggregate make 72 per cent of men…. is not evidence of discrimination, or gender bias. I want to know why that stat exists. And as a plethora of research shows.. young women, without children, make more money then men. The better argument, the one I would point out to my daughter is…. statistics show, that if you choose to to have children, there is a high probability that choice will lead to diminished income. Not, because you are a woman, you will make less money. Now she has facts that make her life choices more informed. Should she consider having children, she may, see why that choice has that outcome and strategize her plan to minimize of avoid that consequence. Not reflexivly viewing the world as discriminatory place where she has no say in the outcome and she needs a government to protect her, She is empowered to do something, encouraged to find a different plan, Talk to other women who avoided the outcome. redblack, good man, ya go to to a different world view … women and men have a lot more effect on their outcomes by the power and information they have at hand. I stand on personal choice as the foundation of income disparity not blatant gender bias. Not when every profession office I visit is as likely to have a woman in the head of the table chair as a man, That wasn’t true 35 years ago. It sure is today.

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[JoB]

kootch..

“interestingly…women chose to accept less pay, far more often then men.”

but they didn’t choose to be paid less than the man working next to them.. regardless of whether they valued working conditions or not.

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[JoB]

kootch

“JoB’ism

a woman who asks for more money is perceived as troublesome.

a man who asks for more money is perceived to have a well developed sense of his own worth.”

JoBism???

is that how you dismiss reality these days?

“Women dominate the HR field. They dominate the HR consulting industry, , 72 per cent of HR employment is female.

So… if women who ask for raises are considere “troublesome”.. that would mean their own gender is making that judgement 72 per cent of the time.”

but HR doesn’t make the hiring decisions kootch…

they screen applicants.

individual managers make the hiring decisions

and those individual managers are still predominately male.

this stuff isn’t rocket science kootch..

you’d understand the basics better if you read some of the research.

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[kootchman]

That was not in the survey, Less than 5 per cent of the men took the offer for a lower wage. Under this scenario, they would be working with men and women who shared the a similar value set. The point of the survey was… FYI… the ‘new: buidling” actually was more economica to run. It didn’t cost more. So one building would have more men, the other more women. I just happen to know the outcome. The new plant was built, one state away. It went from Spartanburg SC to Gadsen AL. I wonder what the work force looks like today… and how the wages compare.

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[JoB]

kootch..

“I am not dismissive. Stats are derived from data sets.”

the trouble is that you are pretty selective about what data sets you look at, aren’t you?

the fact is that wage discrimination exists.

you wouldn’t work so hard to protect it if it didn’t.

it exists during hiring

it exists during promotion

and it exists in the top wage working women can achieve in their lifetime..

to say that you can point to instances that refute those statistics doesn’t make them any less valid.

and then there is that old saw…

well.. that might have been true for you but not for women today…

kootch.. the flood of qualified women who entered the workforce in the early 70s have reached retirement age.

the current stats for lifetime wages for working women are the result of working women who were supposedly protected by equal wage laws for most of their working life.

the proof is in the pudding

and this pudding is highly discriminatory

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[kootchman]

HR presents to the manager the case, and the reccomendation… yea or nay. Generally a formality. I just watched it happen here, In fact the manager wants to be shielded from the “process”… that’s why HR is such an expanding field. That would be my latest experience, HR is the gatekeeper.

well there ya go Job… my stats and my beliefs don’t agree with you.The flood of women in the 70’s wasn’t a flood. The flood is now. 2012, The beer summit regarding the 70;s is likely to be less controversial.

what’s next ? Body Mass Index equality? Height income parity?

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[skeeter]

I once attended a professional conference that touched on the topic of pay equality. The audience was about 50/50 men vs women. A couple hundred people were in the room.

The speaker asked for any man who had taken off 6 months of work or longer for any reason to raise his hand. “Any reason” included losing a job, medical leave, family leave, voluntary leave, anything. I saw two hands go up. Next, the speaker asked for any woman who had taken off 6 months of work or longer for any reason to raise her hand. I’d say about 50 to 60 percent of women raised their hands.

In my experience, men are more aggressive and competitive in their pursuit of higher wages. So men are less willing to take time off of work.

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[DBP]

Economists are fond of comparing the capitalist system to a market, where sellers hawk their wares and buyers mill about, searching for the best deals.

OK. I’ll “buy” that. For the sake of this discussion, let’s shrink the American economy down to the size of the Pike Place Market for a moment.

What’s today’s good deal at the Market? —Let’s check out the oranges. Luigi, in the corner stall, usually has a good price on fruit. He’s been in business a long time, so he must be making money, right? But how does he know what’s the best price he can get on oranges without taking a bath?

Well, the first thing Luigi does every morning is check around at the other stalls to see what the competition is selling oranges for. He obviously can’t sell his for $2 a pound if the guy right next to him is selling them for $1. Likewise, if the going rate for oranges is $3 this time of year, then Luigi would be a fool to sell his for only $2. Whatever price he asks, we can assume that he didn’t just pull a number out of a hat and stick it on the pile. He’s got to know what the going rate is. Or he’s outta business.

OK, that much is economic child’s play.

Now, re-imagine the PP Market as if Luigi were a factory worker (or accountant) and instead of selling oranges, he’s selling his labor. This shouldn’t be too big a leap for us, because remember: in the market scheme of things, labor and oranges are essentially the same. They’re both a commodity to be bought and sold on the open market at that sweet spot where supply meets demand.

So just as before, when he was selling fruit, Luigi still has to “shop around” every morning to see what others are selling their labor for.

But suppose he can’t do that. Suppose there are no prices posted anywhere, and every time Luigi wanders over to another stall to find out what they’re charging, all he gets back is: “Sorry. I can’t tell you that. Boss’s orders.”

As a seller, what kind of position would Luigi be in then? He’d have to guess what to ask for his product — take a total shot in the dark, as it were.

That’s not good capitalism.

For markets to function efficiently, both buyers and sellers must have the fullest possible knowledge of the going rate for the product. But wage non-disclosure contracts work against that, by keeping workers from learning what the going rate for their product is and by placing them at an unfair disadvantage relative to buyers (that is, employers) and to all other sellers.

Non-disclosure rules are a distortion of the labor marketplace. They’re not just anti-worker, they’re anti-market. And therefore . . . anti-capitalist.

–David Preston

 

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[skeeter]

But workers simply aren’t a commodity – especially for businesses with smaller (100 or fewer?) employee counts. Some workers do an amazing job and would be extremely difficult to replace. Others do a very mediocre job. I simply cannot imagine anything less than perfect chaos if everyone knew how much money their co-workers were being paid.

My wife works for the federal government. Everyone knows what everyone else is making – it is simply a rank and step on the GSA payscale. The amazing performers get paid the exact same amount as the marginal employees. That works fine for government where there is no profit motive and no competition. In the for-profit world, where there are investors seeking return on capital and competitors trying to take your customers, you need to pay big bucks to keep your top performers motivated.

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[Bostonman]

DP, I am the Chief Financial Officer of the company, I also am a part owner of the company. So while I am an accountant by degree I rarely do accounting much anymore at the granular level. Its much more big picture driving the company. I am right behind the CEO to run the company and when he travels (which is most of the time) I am running the company.

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[kootchman]

øk … show me the data… not the raw number. It means nothing. I want you to show the highest correlations that come closest to causality. Saying women make 72 per cent less money, therefore the proof is in the pudding it’s highly discriminatory… well, 100 per cent of women drink water and 72% of them make less money than men… don’t drink water, or you will have a 72% chance of making less income then men. You say it is proof.. I show you DOL, Bureau lf Labor Statistics, university studies, other data with stronger inferences… and you say? I am highly selective about data.. yea I am… right. eaxactly my point, I am more selective. My HR VP niece cracked up over the the roles you ascribed to HR … “they don’t make hiring decisions”…. “pass along that the salaries have offered and accepted, we send up the final 2 or 3…. with our assessment. Salary, compensation, benefits are decided long before the “final” interview.”

to say that you can point to instances that refute those statistics doesn’t make them any less valid.

YES IT DOES… I don’t do many “personal stories”… it is precisely data that refutes the validity of “general assumptions” and “common knowledge” or “well known fact”…..

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[kootchman]

DBP… the world is full of data on what the market rate for labor is. Your body and fender shop uses a labor cost guide. Books are published for precisely that reason I sell crap everyday. on three continents. The better knowledge customer gets a better deal. It happens every day. Lugi is looking for a wholesaler with a better deal.. if he buys three bushels of peaches, he very well may get a better deal than Paco, three stalls down. The only thing working in Luigi’s favor is … he knows his margin is better than Pacos. The economic world runs every day without “perfect knowledge”.. that what the markets are for… that’s where the price is set. The information selling and collection business is an entire industry unto itself. Hell. I have purchased long term weather forecasts… and made buying decisions from them.

You know how Luigi prices his goods? Hell luigi may change his orange price two or three times a day. He has to make a profit, but int he end, he will only sell for what a customer will pay. Someone has to post them first. He looks at his costs, variable and fixed… he looks at his business plan, the one in his head, or the one he paintakingly put on a spreadsheet. He will adjust his product mix, change suppliers, work supplier against each other, ,, because someone is going to sell cheaper.. Maybe Luigi will get out of oranges for a couple of days,…sorta to get a price concession. Pricing is an art form my friend. So is negotiating for the price of labor..

Here DBP… a starter set.. there are lots more. He or she can even avail themselves of compensation specialist.

http://www.bls.gov/bls/blswage.htm

http://www.payscale.com/

http://www.cbsalary.com/

http://www.salary.com/category/salary/

Too lazy to do the research? Ok then… my advantage at the table. He doesn’t have to “take a shot in the dark” he can go to a free terminal at a pubic library and come with a realistic appraisal… which I may or may not agree with. I check the market every day… before I am on the phone… ya think I call my competitor and say.. hey, c’mon, what’s really your bottom line, pinkie promise not to lie?

In my store. It’s confidential information. Can’t keep a confidence? You’ve seen your last raise or promotion. If you can’t pick up ” I wish you wouldn’t share compensation” for what it was meant. Your radar is faulty. It won’t be in writing, it won’t be posted… hows the phrase go,, “catch my drift”?

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