August 2017 Volume XI No. 3 Taking Care of Business
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Hoeppner Wagner & Evans Attorneys Win Equal Pay Act Case for Client Based on Summary Judgment

John Hughes and Lauren Kroeger recently received summary judgment in a lawsuit filed against their client in Federal Court alleging violation of the Equal Pay Act (“EPA”). The plaintiff, a male employee, sued his former employer, claiming that he was paid less than female employees for equal work. The employer moved for summary judgment, presenting evidence that any wage disparity between plaintiff and female employees was based on factors other than sex. Evidence demonstrated that the employer determined employees’ wages were based on two gender-neutral company policies: (1) application of an annual wage rate for new hires, adjusted for the new employee’s years of previous experience, training, and related qualifications; and (2) percentage wage increases based on performance evaluation scores in some years and on across-the-board increases in other years.

The employer identified ten female employees who earned a higher hourly wage than the plaintiff, and provided detailed information regarding the calculation of each woman’s starting wage rate and the calculation of her yearly wage increases. The Court determined that the wage rates for the higher-paid female employees were calculated pursuant to the employer’s two company policies, without consideration of gender. The Court agreed with the employer, holding that the undisputed evidence demonstrated that the employer used appropriate factors other than sex (experience and merit), applied uniformly, to determine wages of the employer’s employees.

The Court rejected the plaintiff’s argument that the employer’s alleged denial of overtime opportunities constitutes a violation of the EPA as having no legal basis. In addition to summary judgment for the employer on plaintiff’s EPA claim, the Court granted the employer an award of attorneys' fees and costs due to plaintiff’s failure to respond to discovery requests and to appear for his deposition. The Court previously dismissed plaintiff’s disability and race discrimination claims.

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Ban the Box Legislation

In my last article, I noted that there will be some significant changes in employment law under the Trump Administration. This remains the case, and seemingly every day new developments emerge.

However there are other sources in employment laws and there are significant developments in those venues as well. One source of change can occur with state or local laws.

The so called “ban the box” legislation is an example of this. It has been common on employment applications for the employer to ask the applicant if she has been convicted of a felony. This question is asked in a “box” which appears on the application.

Some believe that this question, although seemingly neutral on its face, discriminates against minorities who may be disproportionately accused and/or convicted of crimes. An employer’s policy not to hire a person who has a criminal record creates the discrimination.

The Equal Employment Opportunity Commission responded to the concern by creating rules governing how prospective employers may use this information. The EEOC posited a three (3) proxy test.

First, how recent is the conviction to the job application? Obviously, the passage of time, without any subsequent and intervening criminal convictions, should dilute the importance of the earlier conviction. There is no “bright line” on the issue, but generally, convictions more than seven (7) years old should not be used.

The second prong of the test focuses on the seriousness of the conviction. Presumably, possession of marijuana should be viewed differently than attempted murder. Evaluating the seriousness of the underlying charge prevents employers from having a blanket policy that no one with a criminal record will be hired.

The third prong continues this “individualized” analysis. It focuses on the nature of the conviction as compared to the job being sought. It is one thing for someone seeking an accounting position to have a criminal record for embezzlement; it is another to have that same applicant having a 6-year old conviction for a bar room brawl.

These tests force employers to carefully review a criminal conviction based on the individual circumstances of the applicant and the job sought. Without question, it ends the practice of a blanket policy that excludes the hiring of ex-convicts.

Opponents haven’t stopped here. They want to “ban the box”, eliminating the question from the application. Only after an offer has been made can the question be asked. At that point, the three (3) prong tests are applied. Several cities and states have adopted this “ban the box” legislation.

In the last legislative session, Indiana essentially “banned” the “banning of the box.” The legislature provided that local towns and cities (like Indianapolis) cannot pass laws which “ban the box”.

Where does that leave us? The answer is back with the EEOC three (3) prong test. Employers must conduct an “individualized assessment” of each applicant and any conviction of a crime. One size does not fit all – no blanket prohibitions are permitted. Time will tell if this is enough to prevent the perceived abuses addressed by the ban the box legislation.

If you have questions regarding "ban the box", or other similar issues, please contact your HWE relationship attorney or visit us at

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DISCLAIMER: This publication is not intended to be legal advice but is presented for informational and educational purposes only. The facts and circumstances of a specific legal issue are unique and you should seek legal advice for your specific questions or concerns. No attorney-client relationship is created.