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Category: Commentary & Opinion

Posted on July 29, 2009August 31, 2018

Special Report on Employee Relocation Barely Moving

The recession pummeled companies’ domestic and global mobility programs in the past year, magnifying changes that had been taking place for some time.


Inside the United States, HR departments continue to grapple with a real estate downturn that has led employees to resist job transfers because they can’t sell their homes. Overseas, multinational companies are curbing the costs of expat programs by cutting assignments short, restructuring expat compensation packages and, in some parts of the world, filling positions with local hires instead of relatively more expensive Western employees.


The fallout has reached some of the industry’s leading relocation outsourcers, which have reacted by laying off employees, filing for bankruptcy or selling operations. Although the domestic and international relocation issues are very different, they have the same root: a tanking economy that offers fewer options for organizations that need to get their employees from here to there.


Domestic decline
Julie Loubaton knows firsthand how the recession is changing U.S. companies’ domestic relocation policies. As director of recruiting and talent management for Consolidated Container Co., Loubaton helps move people for jobs at the Atlanta bottle maker.


Only this year there hasn’t been a lot of moving going on. The 3,000-employee private company stopped offering full relocation packages to new hires a while back and trimmed the number of existing employees it moved for transfers or promotions to seven so far this year, down from 10 in 2008 and 18 in 2007. The main reason: People can’t sell their homes, and there’s only so much cost that Consolidated Container is willing to take on to help.


“A lot of people are having a hard time accepting what their house is valued at,” Loubaton says. “They still think they can sell it for X, despite what an agent is telling them. We can’t afford to have them try for six months then come to us for more money.”


Things have eased up slightly since hitting bottom in the spring. Even so, Loubaton is revising her department’s relocation policies to better reflect the times, changes she spent months researching before bringing them to Consolidated Container’s executive committee in June for approval.


The situation Consolidated Container faces and the actions it is taking mirror what’s happening throughout the country as businesses large and small come to grips with the financial effects of the real estate bust and recession. Nationwide, fewer employees are willing to move for a job. Of 179 companies in a 2009 survey by relocation outsourcer Cartus, 79 percent said employees’ resistance to moving increased somewhat or a great deal over the past year. For 94 percent of those, worries over selling an existing home were the main reason.


“People are afraid of losing money or being underwater”—owing more on a mortgage than what they could sell their house for—says Lina Paskevicius, a consulting manager at Cartus. “If they’re moving, they’re waiting for some official word that the market has bottomed out, so they’re renting instead of buying at the new location, where traditionally they’d buy as soon as they got there.”


When companies do help employees relocate, they’re demanding tougher terms. Thirty-seven percent of 210 companies in a recent poll by Weichert Relocation Resources adopted tighter list-price guidelines or added list-price restrictions to relocation policies for the first time in 2008.


The news isn’t all grim. Last year, 40 percent of companies in Weichert’s survey added or increased loss-on-sale assistance, making up some portion of the difference between the original purchase price of a transferee’s home and its sale price. In the same poll, 34 percent of respondents increased the temporary housing allowance they offered. If a candidate is desirable enough, some companies will even pay a portion of the difference between what a transferee owes on a mortgage and what they can get for their house. “There’s no other way to get people to move,” Cartus’ Paskevicius says.


Consolidated Container, which cranks out 7 million plastic bottles, drums and canisters a day in 65 factories in the U.S. and Mexico, never used to set sales prices for homes of employees who had accepted a transfer. But given the current realities of the residential real estate market, the company revised the policy. Now the company requires that candidates list their home within 105 percent of the average estimated selling price, based on two independent real estate agents’ market analyses.


Aware that homes are taking more time to sell, however, Loubaton is extending how long the company will pay temporary living expenses, to three months from two. She’s also considering giving employees who sell within 90 days a bonus of 2 percent of the net sales price. “This way if they sell at less than they want we’re making up some of the difference, so it’s not as big of a hit mentally,” Loubaton says.


Halting relocation offers to outside candidates hasn’t deterred them from applying for jobs at the bottle maker, which despite the recession is still hiring in its factories and for openings among 450 salaried positions at its Atlanta headquarters. In fact, Loubaton says candidates for management positions—especially junior-level jobs—are willing to do without company help.


“In the old days they’d want a full relocation package. Now they say, ‘Don’t worry, I’ll make it happen if you give me the job,’ ” she says.


Loubaton uses Primacy, a Memphis, Tennessee-based relocation outsourcer, to perform the actual relocation work. She manages the program, and with so many changes taking place, “I’m on the phone with them five times a week. I’m tracking things weekly for our senior leadership team. I’m more involved than I ever thought I’d be,” she says. Like Consolidated Container, more companies are relying on outsourcers to manage relocation programs. Brookfield Global Relocation Services, which merged with GMAC’s relocation business in late 2008, found that about one-third of U.S. companies in its 2009 relocation survey use outsourcers to manage their domestic relocation programs. It’s the latest function being handed off to outsiders as HR departments economize, says Scott Sullivan, the company’s senior vice president.


With housing prices still in the doldrums in many regions and jobless rates continuing to climb, nobody’s predicting relocation policies will go back to what they were anytime soon. “Unless there’s a turnaround, it’s going to be more of the same reluctance to relocate,” says Paskevicius, the Cartus consulting manager.


Global changes
To see what’s happening to multinationals’ global mobility programs, look at China. The country has become a leading expat destination—No. 1 in the world, according to Brookfield Global Relocation Services’ 2009 global mobility trends survey—yet remains one of the most challenging destinations for international assignments.


Even in a global recession, China continues to be a manufacturing powerhouse, creating ongoing demand for management jobs, especially middle-manager positions. But assignments there can be tricky. Expats who live in post-Olympics Beijing maintain the city has become every bit as cosmopolitan as Singapore or Hong Kong—with the same high prices.


Other areas of the country are still considered second-, third- or even fourth-tier destinations based on their lack of infrastructure, options for housing and schools, and other Western-style amenities. This makes it difficult to attract expats. Even in cities such as Beijing and Shanghai, overcoming the twin barriers of language and culture continue to make assignments tough, according to HR managers, consultants and relocation outsourcers.


With revenue and profits beaten down by the recession, multinationals are curbing mobility expenses in a number of ways: ending expat assignments early, reducing compensation packages and perks, and choosing single employees for international stints over those with families, according to 2009 reports from Brookfield and other global relocation outsourcers.


These days, when expats are called home, their replacements are likely to be local hires whose total compensation can run well below what U.S. or European expats command, according to the reports and accounts from expat HR managers.


All these trends are evident in China, where multinationals are replacing departing expats with their pick of a growing population of foreigners already living in the country. “There was just an expat job fair here a month ago and a couple thousand people were there looking for jobs,” says John Lackey, a Beijing-based international HR manager for International SOS.


In more than a decade helping manage expat programs for such multinationals as Goldman Sachs and Microsoft, Lackey has had a bird’s-eye view of the changes taking place. He currently oversees HR for 85 expats working in Beijing for International SOS, which provides medical assistance, security services and international health care, including a chain of private medical clinics. The company has a global workforce of 6,000.


Today, about half of International SOS’ expat employees in Beijing are traditional expats from 15 countries, including the U.S., Germany and New Zealand; a quarter are local hires; and the balance are expats who rotate through positions on a short-stay basis.


While the total number has remained steady, Lackey predicts more expat positions will be filled by ethnic Chinese transferring from nearby countries or “half pats”—Chinese nationals returning to the country after living elsewhere for a long time.


“An [American] expat with a spouse and two kids making $100,000 a year can run $250,000 to $500,000 in costs, compared to a local hire you can pay $100,000 and that’s all you have to pay,” Lackey says. “The savings is easily at least half and could be up to 75 percent.”


Another attraction of local hires or half pats in China: their ability to fill in-demand middle-manager positions that require business experience and knowledge of language and culture, says Timothy Dwyer, client services director at Expaticore, a New York expatriate payroll outsourcer, and a former global mobility manager at Goldman Sachs and KMPG.


These workers may not be a multinational’s perfect candidate. But as cost plays a bigger role in hiring decisions, companies are willing to overlook some deficiencies, especially if candidates accept a hybrid compensation deal that’s less than what a traditional expat would expect, Dwyer says.


In addition to using local hires, multinationals are curbing costs of global mobility programs by cutting the length of long-term assignments by a year or more, creating more short-stay assignments of a year or less and sending employees on extended business trips of several weeks or months instead of moving them, says Paskevicius, the consulting manager at Cartus, which in addition to its domestic business also works with multinational clients.


All those changes mean HR managers must look across the globe for available candidates, and more are relying on relocation outsourcers for help. Overall, 38 percent of 180 companies in Brookfield’s 2009 survey outsource the management of their global mobility program. Cartus, for example, offers its clients a candidate assessment program that uses performance metrics and other data to pick the best pros- pects for international jobs.


Nevertheless, some organizations’ expat program managers prefer to go it alone. Lackey, who has worked with and for relocation outsourcers, acts as his own program administrator because of the flexibility it gives him. Outsourcers “tend to limit services to a fixed menu, whereas I can get a local company to provide services with no limitations,” he says. The global recession has put pressure on HR managers to justify how well global mobility programs align with a company’s overall business objectives. That means producing more data on the program’s operations “and more dialogue between HR and management about the outcome of assignments,” says Scott Sullivan, senior vice president at Brookfield Global Relocation Services, which acquired GMAC’s mobility division last year.


Those same financial realities have accelerated the demise of companies’ once standard practice of doling out cushy expat assignments to junior executives as part of their management training process, says Rebecca Powers, a Mercer global compensation and mobility practice principal.


Companies no longer feel the responsibility. It’s now employees who are eager to accept international postings, even in less than top-tier locations. They are also willing to make such moves for pay and benefits packages that are less than what they used to be, “as a way to boost their marketability,” Powers says.


Workforce Management, July 20, 2009, p. 23-27 — Subscribe Now!

Posted on July 29, 2009August 31, 2018

Starbucks to Match 401(k) Contributions


Seattle-based Starbucks Corp. will match U.S. employees’ contributions to the company’s $252 million 401(k) plan through the 2009 plan year, which ends September 27.


The company announced Tuesday, July 28, that it will make its discretionary match to the Future Roast 401(k) Savings Plan based on company performance, according to a news release. In December 2008, Starbucks made its match discretionary, to be based on performance over the year.


“Our progress over these past few months has given us the opportunity to fund the company discretionary match for the 2009 plan year,” said Howard Schultz, president, chairman and CEO of Starbucks, in a statement.


The company match ranged from 25 to 125 percent of employee contributions up to 4 percent of pay, according to Starbucks’ employee benefits summary.



Filed by Jeff Nash of Pensions & Investments, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.


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Posted on July 29, 2009June 29, 2023

Top Relocation Destinations vs. Most Challenging Relocation Destinations

China was most frequently cited by respondents asked to name their top three countries for international assignment destinations. China also ranked highest among respondents asked which three countries produced the greatest assignment difficulties for expatriates.

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Workforce Management, July 20, 2009, p. 26 — Subscribe Now!

Posted on July 29, 2009June 29, 2023

Declining Expat Growth Rate

Expatriate growth dropped sharply in 2008 compared with 2007 among survey respondents. Companies citing a decrease in or the same level of expat assignments in 2008 was 63 percent, with just 37 percent of companies reporting increases.

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Workforce Management, July 20, 2009, p. 26 — Subscribe Now!

Posted on July 28, 2009August 31, 2018

OPM Work-Life Effort May Have Broader Impact

 
The Office of Personnel Management is launching a series of programs to improve work/life balance for its 5,000 employees, a move that, if successful, many say will cascade throughout the federal government and into the private sector.


During the past several months, President Barack Obama and first lady Michelle Obama have called for employers to do a better job in establishing work/life balance programs.


“The president has reviewed our plans and is very excited by it,” says John Berry, director of the OPM.


Establishing work/life programs and creating a better work environment is critical, particularly in the public sector, where managers don’t control pay and benefits, Berry says.


Rather than launch a series of pilot programs, Berry has created a task force of 12 employees dubbed “The Wolf Pack” to discover what the OPM workforce wants. The OPM also is holding monthly town hall meetings to discuss possibilities for work/life programs, he says.


“I don’t have unlimited money, so we want to come up with a list of priorities,” he says.


Among the suggestions is providing day care not just for employees’ children, but also for their parents, which is becoming a growing issue, Berry says.


The OPM has already started to expand its wellness programs. It is devoting $300,000 to upgrading its health clinic.


And the agency isn’t working alone.


It is teaming up with the Department of the Interior and the General Services Administration to see how they can coordinate efforts and share resources, Berry says.


“For example, the Department of Interior has a nice gym, so there is no reason to replicate that,” he says. “But we might kick in more money to hire more staff so that our employees can use it.”


Experts would like to see the OPM be creative about what it does with regard to work/life programs.


Too often, work/life balance is thought of as just allowing employees to telework, and it’s so much more than that, says Kathryn Kadilak, a former work/life manager for the Department of Justice during the Clinton administration and president of Strategic WorkLife Solutions in Warrenton, Virginia.


“Unfortunately, telework has overtaken everything else,” Kadilak says. “That’s why I think OPM is looking at what they can do in terms of broader work/life programs.”


Currently 34 percent of the OPM’s eligible employees telework, and the agency’s Wolf Pack is talking to academic institutions as well as private employers about other ways to provide work/life balance, Berry says.


“Telework is a great tool and one that we are working to expand and implement more broadly, but by no means is it the be-all, end-all,” he says.


Experts believe that if Berry’s programs are successful, not only will other federal agencies adopt them, but private employers will as well, as they realize they need such programs to compete for talent.


Given the poor economy, many private-sector employees have lost their jobs and are looking at public-sector jobs as an alternative, says Kathie Lingle, director of the Scottsdale, Arizona-based Alliance for Work-Life Progress, a division of WorldatWork.


“A guaranteed pension is looking pretty good right now,” she says. “A lot of the talent that has been fired may not be available to private-sector employers to be rehired unless they implement these kinds of programs.”


—Jessica Marquez


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Posted on July 27, 2009August 31, 2018

Treasury Department Seeks More Oversight of Large Financial Firms


The Treasury Department has asked Congress to give it more power “to resolve any large, interconnected financial firm in an orderly manner,” according to a fact sheet issued Thursday, July 23.


Treasury has drafted legislation that would allow it to appoint either the Federal Depository Insurance Corp. or the Securities and Exchange Commission as conservator or receiver for a “failing financial firm that poses a threat to financial stability,” according to the department.


“The conservator or receiver of the firm will have a broad set of powers including authority to take control of the operations of the firm and to sell or transfer all or any part of the assets of the firm,” the proposal states. “The resolution authority will also include the ability to provide loans, assume liabilities, or inject capital subject to checks and balances, and only if a systemic risk determination has been made.”


In addition, the Treasury proposal calls for having the Federal Reserve require that so-called Tier 1 financial holding companies—financial firms that are found to pose a threat to the economy’s financial stability because of their size, leverage and interconnectedness to the financial system—prepare and maintain a “credible plan for the rapid resolution of the firm in the event of severe financial distress.”


On Wednesday, July 22, the department issued a series of legislative drafts dealing with financial services regulatory reform, including one that would create an Office of National Insurance within the Treasury Department and another designed to enhance the regulation of entities that present a systemic risk to the economy.



Filed by Mark A. Hofmann of Business Insurance, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.



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Posted on July 22, 2009August 31, 2018

Complying With the Genetic Information Nondiscrimination Act

Beginning November 21, 2009, hiring and employment decisions will become even more complex for employers. The Genetic Information Nondiscrimination Act, which was signed into law by President George W. Bush on May 21, 2008, is intended to prevent employers, employment agencies, labor unions and health insurers from discriminating against individuals based on genetic tests and information. Here’s what you need to know about the effect the law will have on employers and their hiring and employment decisions.


Who is subject to the Genetic Information Nondiscrimination Act?
As they are under Title VII of the Civil Rights Act of 1964, private employers with 15 or more employees are subject to the Genetic Information Nondiscrimination Act’s requirements. Unlike Title VII, however, the Genetic Information Nondiscrimination Act also covers certain public-sector employers, such as the U.S. Postal Service and the Library of Congress. Employment agencies and labor organizations are also subject to the act.


The Genetic Information Nondiscrimination Act is a federal statute that offers a base-line level of protection for employees against discrimination based on genetic information. It also authorizes states to enact laws granting additional protection.


What is genetic information?
The act broadly defines genetic information to include:


  1. An employee’s genetic tests.
  2. An employee’s family members’ genetic tests.
  3. The manifestation of a disease or disorder in the individual’s family members.
  4. Genetic tests of any fetus of an individual or family member who is pregnant, and genetic tests of any embryo legally held by an individual or family member utilizing assisted reproductive technology. For the purposes of the act, genetic information does not include information about the sex or age of any individual.

Employers should pay particular attention to No. 3. The term “family member” encompasses varying degrees of relatives (up to the fourth degree), including, without limitation, the employee’s parents, siblings, children, first cousins, grand nephews and nieces, and great-great grandparents, to name a few. Moreover, the term “manifestation” is so broad that employees can be deemed covered simply because a family member is symptomatic of some genetic disease or disorder.


Furthermore, genetic information includes any request for, or receipt of, genetic services or participation in clinical research that includes genetic services (genetic testing, counseling or education) by an individual or family member. The statute further defines “genetic test” as an analysis of human DNA, RNA, chromosomes, proteins or metabolites that detects genotypes, mutations or chromosomal changes. The Genetic Information Nondiscrimination Act does not protect routine tests that do not measure DNA, RNA or chromosomal changes, such as complete blood counts, cholesterol tests and liver function tests. Also, under the act, genetic tests do not include the analysis of proteins or metabolites that are directly related to a manifested disease, disorder or pathological condition that could reasonably be detected by a health care professional with appropriate training and expertise in the field of medicine involved.


What acts are prohibited under the act?
The Genetic Information Nondiscrimination Act, like Title VII, prohibits discrimination in hiring, termination and decisions related to compensation, as well as other terms and conditions of employment. Specifically, it prohibits employers from requesting, requiring or purchasing genetic information on an employee or the employee’s family members. There are, however, exceptions to this prohibition that an employer should be familiar with. Some limited of these exceptions include inadvertent requests or requirements for an employee’s family medical history and family medical history information requested in compliance with Family and Medical Leave Act certification procedures.


Furthermore, when the exceptions like the ones listed above apply, the employer must keep the genetic information confidential. More specifically, when an employer maintains genetic information concerning an employee or family member, the employer must keep the information on separate forms and in separate files as a confidential medical record. These medical records can be disclosed under limited circumstances, such as at the employee’s request, pursuant to court order or to determine compliance with the act and other nondiscrimination statutes like the Family and Medical Leave Act. Genetic information is also subject to HIPAA privacy requirements.


    The act also protects employees from retaliation for opposing or complaining about unlawful employment practices, and from retaliation for filing a claim under the act.


What are the remedies under the act?
The act’s remedies are much like those in Title VII. An employee can recover compensatory damages, which are capped at $300,000 for employers with 500 or more employees, and punitive damages, which have no cap. An employee can also be entitled to recover back pay, reinstatement and attorney fees.


What does the act mean for employers?
Employers need to be familiar with the Genetic Information Nondiscrimination Act’s requirements to ensure that their business is in compliance with it, as well as any similar state laws, since it is possible the state law will afford an employee more protection than the federal law. Furthermore, employers will need to assess their compliance with the act in relation to their obligations under other employment anti-discrimination laws such as ADA, FMLA and the Pregnancy Discrimination Act.


Finally, the Genetic Information Nondiscrimination Act can mean more complicated hiring and firing decisions for employers. Consider these examples: 


  1. An employee takes FMLA leave to care for a mother suffering from Alzheimer’s disease. The employee uses all available protected leave and returns to work, so that there is no FMLA violation. Six months later, the employee is terminated. Under the act, the employee could sue the employer, alleging that the employer knew the employee’s mother had a genetic disorder and terminated the employee on the assumption that she could be afflicted with Alzheimer’s disease as well.

  2. An employee has decided to get the BRCA gene tests, to determine whether she is at a higher risk for developing breast or ovarian cancer. The employee requests time off from her job to attend the appointment and tells the employer the specific reason for needing the leave. The employer allows the employee to take the time off and the employee promptly returns to work. After the employee receives her results, she shares with some co-workers that the BRCA gene tests came back positive; she is at a higher risk for breast cancer. Six months later, the employee is terminated. Under the Genetic Information Nondiscrimination Act, the employee could sue, claiming that (1) the employer fired her because she is more susceptible to breast cancer or (2) the employer assumed she was more susceptible to breast cancer and that breast cancer ran in her family since she decided to have the elective genetic testing done.

As if the current anti-discrimination laws did not give employers enough to think about when hiring or firing employees, the Genetic Information Nondiscrimination Act will add a new level to this decision-making process. As such, employers need to be informed of the law’s requirements. Training and education are the keys to this process. Employers should ensure that their HR departments and their management-level employees are aware of the new law and its detailed provisions. Otherwise, employers run the risk of being caught up in the genetic-discrimination litigation that is sure to develop.


The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

Posted on July 21, 2009August 31, 2018

Downturn Puts New Emphasis on Engagement


Employee engagement is fast becoming a crucial business issue as employers face signs of continued economic trouble.

Experts say worker commitment to firms has never been more important. Yet there is evidence it is flagging even as organizations confront the prospect of more belt-tightening.

The good news is that companies can increase esprit de corps with some inexpensive steps, says Jim Harter, chief scientist for polling firm Gallup’s workplace management and well-being practice.


In the wake of tumultuous corporate restructurings, one key tactic is to clarify each worker’s role.

Another, Harter says, is to create hope by helping employees see how they play a role in improving the company’s situation during the downturn.

“They can either feel victimized or they can feel a part of making a difference,” Harter says.



Employee engagement refers to the level of commitment workers make to their employer, seen in their willingness to stay at the firm and to go beyond the call of duty.

Organizations including consulting firm Towers Perrin have found a link between engagement and business results. Companies hoping to emerge from this recession ahead of the pack ought to pay close attention to employee attitudes, argues Julie Gebauer, managing director at Towers Perrin.


“Focusing on the things that drive engagement right now is critically important,” she says.

Human resources executives agree.


A recent report from the Corporate Executive Board research group found that 80 percent of global heads of HR surveyed named engaging employees a high priority for 2009.

But employers also have to focus on costs and their bottom line. And the business climate is none too sunny.

U.S. job losses in June were worse than those in May, reversing several months of improving declines.

And in early July, the International Monetary Fund said the global economy was beginning to pull out of a recession, but “the recovery is expected to be sluggish.”

Towers Perrin found that employee engagement globally held steady between the fourth quarter of 2007 and the first quarter of this year. But Gallup found a slight drop in engagement among U.S. workers between July 2008 and March 2009.

And the Corporate Executive Board found that the percentage of employees globally displaying high levels of discretionary effort dropped sharply between 2005 and the first quarter of 2009.

The board concluded that the decline in employee engagement is decreasing overall productivity by 3 to 5 percent.

Brian Kropp, practice manager at the board, agrees with Gallup’s Harter that one problem is significant role confusion these days for employees.

Another key, according to the board, is bolstering workers’ emotional commitment to their organization through such steps as opportunities for two-way exchanges between business leaders and employees.

Gallup has found that organizations with a layoff or downsizing saw the level of actively disengaged employees rise by 3 percentage points, to 24 percent.


 If a company decides it must cut positions, it needs to explain the reasons to employees, says Gebauer.

“They care about whether management has considered alternatives,” she says.


—Ed Frauenheim


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Posted on July 17, 2009August 31, 2018

Disparate Impact Versus Disparate Treatment

Pursuant to a collective bargaining agreement between the city of New Haven, Connecticut, and the New Haven Firefighters Union, promotions to captain and lieutenant were to be based on exams. After an extensive background investigation, the exams were created by an outside company. Under the city’s civil service rules, each opening for promotion was to be awarded to one of the top three scoring candidates.


Of the applicants who took the captain and lieutenant exams, no black applicants were eligible for promotion. Before the exam results could be used for promotion, the civil service board had to certify them. The city discouraged the board from certifying because doing so would “create a situation in which African Americans are excluded from promotional opportunity” and a “disparate impact” resulted. The board did not certify.


Several white firefighters and one Hispanic firefighter who took the exam filed suit in district court in Connecticut under Title VII of the Civil Rights Act of 1964, asserting that rejecting the results solely because the city wanted more minorities to qualify for promotion was discriminatory against non-blacks. The court found for the city, holding that the test results were presumptively discriminatory based on their disparate impact on the passage rate. The court of appeals affirmed.


The U.S. Supreme Court reversed in a 5-4 decision. The justices held that the city’s decision that “too many whites and not enough minorities would be promoted” was an express race-based decision that otherwise violates Title VII and that a simple good-faith concern over disparate impact liability is not a sufficient defense. Once a race-neutral process has been established by an employer and it makes clear its selection criteria, it can’t invalidate the results. Ricci v. DeStefano, 557 U.S.__ (2009).


Impact: Employers are advised that once a selection system is in place, it should be followed in the absence of evidence that the process violates the disparate-impact provisions of Title VII. Employers should consider adopting a fair system for awarding promotions, ensure the process is job-related and defensible, and evaluate alternative methods based on appropriateness and the impact on protected groups.

Posted on July 10, 2009August 31, 2018

Bank of America Accused of Gender Discrimination at Merrill Lynch

Bank of America finds itself back in hot water over retention bonuses at its recently acquired Merrill Lynch unit. This time the furor is being raised by female employees at the firm who say they received much smaller bonus checks than their male colleagues.


Jamie Goodman, a financial advisor and 16-year veteran of Merrill Lynch, has filed a class-action sexual discrimination suit against the brokerage firm and parent company Bank of America.


The case, filed in late June, asserts that BofA knew of Merrill’s allegedly discriminatory pay practices yet calculated bonuses based on Merrill data anyway. The suit seeks unspecified damages.


“When it comes to layoffs or retention bonuses, we’re seeing that the [negative] impact is much greater on women,” said Shona Glink, partner at law firm Meites Mulder Mollica & Glink, which is handling Goodman’s class-action case.


“When these big firms merge, women are being paid less to stay because their production is lower,” Glink explained. “And why is their production lower? Because they’ve been discriminated against by not getting the good partnership opportunities, the big clients or the large territories. It’s a vicious cycle.”


Gender discrimination claims on Wall Street are nothing new.


Indeed, the National Council of Women’s Organizations established its Women on Wall Street Project in 2004 to address the issue. But recent years have seen a lull in such claims. The last time Merrill Lynch faced a high-profile sexual discrimination suit was in 2004.


Now that thousands of Wall Streeters are losing their jobs, however, such complaints are on the rise. Gender discrimination claims jumped by nearly 15 percent last year, according to the Equal Employment Opportunity Commission.


The past two months have brought a drastic jump in the number of calls from women in corporate settings, said Martha Burk, director of the council’s Corporate Accountability Project. She normally gets three such calls per month, but so far in July she has already received calls from 13 women.


“And keep in mind that when I’m talking to one woman, she may be calling on behalf of 10 others,” Burk said. “Informally, we believe that companies think the recession is going to give them cover against causes of action.”


When Bank of America acquired Merrill Lynch in September, it said it would pay retention bonuses to Merrill’s financial advisors based on commissions.


The problem is, Goodman charges, “women were excluded from significant income earning opportunities” at Merrill Lynch, keeping their commissions artificially low. In addition, she alleges that even the few women who made it into the high-earning brackets, such as herself, “were disproportionately denied retention bonuses or received lower bonuses” than their male counterparts.


Bank of America issued a statement saying it would vigorously defend itself, insisting that bonuses were merit-based and objectively calculated. It said the bank does not tolerate discrimination.


In recent years, brokerage firms have been fighting gender discrimination cases with mixed results. In 2004, Merrill fought a $14.6 million sexual discrimination case brought against the firm’s London office by a female financial advisor.


The court ruled in favor of the brokerage firm, confirming that her firing was not gender-based, though it did scold Merrill for a “bullying” environment, and awarded the former advisor $100,000.


Morgan Stanley didn’t fare as well that year.


The firm settled a sex discrimination case with the EEOC for $54 million a day before the trial was due to wrap up.


And more recently, in 2006, Dresdner Kleinwort Wasserstein fought a $1.4 billion sex discrimination suit brought by six female bankers, and retaliated with a countersuit charging the women with “courting publicity” and trying to “smear the firm’s reputation.” The case was ultimately settled out of court.



Filed by Hilary Potkewitz of Crain’s New York Business, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.


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