The United States Department of Labor (”DOL”) enforces federal laws such as the Fair Labor Standards Act (”FLSA”) and, as stated by the DOL, the FLSA requires covered, nonexempt employees to, for example, be paid at least the federal minimum wage of $6.55 per hour for all hours worked, and time and one-half their regular rates of pay for hours worked beyond 40 in a week.  For more information about the FLSA, one can call the DOL’s toll-free helpline at 866-4US-WAGE and visit a DOL website at www.wagehour.dol.gov .

In this regard, a January 29, 2009 DOL Wage and Hour Division Press Release announed that the DOL recovered $24,360 in back wages for seven (7) restaurant employees in Omaha, following an investigation by the department’s Wage and Hour Division.  See, www.dol.gov .  According to the DOL Press Release, the investigation found that the restaurant company violated the overtime provisions of the FLSA by not paying the employees time and one-half their regular rates for hours worked beyond 40 in a workweek.  The DOL reported in the Press Release that the investigation was conducted as part of an ongoing regional effort to increase FLSA compliance in the restaurant industry.

In a separate February 18, 2009 Press Release, the DOL announced that it obtained an Order holding an Andover, Kansas restaurant business and its president in Contempt of a Consent Injunction issued on August 14, 2003.  See, www.dol.gov .  According to the DOL Press Release, a U.S. District Court, in September 2008, found the restaurant company in contempt of court for failing to pay $302,421 in back wages to nineteen (19) restaurant employees and ordered immediate payment, as well as an equal amount as compensation for delay in the payment of wages.  As stated in the DOL Press Release, employers of tipped employees must pay a cash wage of at least $2.13 per hour if they claim a tip credit against their minimum wage obligation.  Further, if an employee’s tips combined with the employer’s cash wage of at least $2.13 per hour do not equal the minimum hourly wage, the employer must make up the difference, but certain other conditions must also be met.  More information about the FLSA is available on the internet at www.wagehour.dol.gov and www.dol.gov/compliance . 

Whether employment related unlawful or unfair pay occurs in Corpus Christi, Houston, San Antonio or elsewhere, victims of unfair pay may contact the DOL and an attorney or lawyer to determine if an unfair pay lawsuit may ultimately be appropriate under the facts and circumstances of the potential unfair wage claim.

According to AP National Writer, Jesse Washington a transformation in hiring may be at hand.  Reverse Discrimination Case May Transform Hiring, http://www.blackamericaweb.com/?q=articles/news/the_state_of_black_america_news/8656/1

Inside a burning building, fire doesn’t discriminate between Matthew Marcarelli and Gary Tinney. Inside the New Haven Fire Department, however, skin color has put them on opposite sides of a lawsuit that could transform hiring procedures nationwide.

This week, the Supreme Court will consider the reverse discrimination claim of Marcarelli and a group of white firefighters. They all passed a promotion exam, but the city threw out the test because no blacks would have been promoted, saying the exam had a “disparate impact” on minorities likely to violate the 1964 Civil Rights Act.

Besides affecting how race can be considered in filling government and perhaps even private jobs, the dispute also addresses broader questions about racial progress: Do minorities and women still need legal protection from discrimination, or do the monumental civil rights laws that created a more equal nation now cause more harm than good?

Also, beneath the specific details of the firefighters’ lawsuit lies an uncomfortable truth: On most standardized tests, regardless of the subject, blacks score lower than whites.

Reconciling that reality with efforts to ensure “justice for all” remains a work in progress - one that will be molded by the Supreme Court.   Jesse Washington, Blacks In America.  This impact will be felt in Houston as well as other metro cities.

New Haven’s population is 44 percent white, 36 percent black and 24 percent Hispanic (who can be any race). At the time of the 2003 test, 53 percent of the city’s firefighters, 63 percent of lieutenants and 86 percent of captains were white. Blacks were 30 percent of the firefighters, 22 percent of lieutenants and 4 percent of captains.

The promotion exams were closely focused on firefighting methods, knowledge and skills. The first part had 200 multiple-choice questions and counted for 60 percent of the final score. Candidates returned another day to take an oral exam in which they described responses to various scenarios, which counted for 40 percent. http://www.blackamericaweb.com/?q=articles/news/the_state_of_black_america_news/8656/1
Tinney, a black lieutenant who has been a firefighter for 14 years, was seeking a promotion to captain when he took the exam. He says both the test and his fire department have hidden biases against minorities: The department is historically white, with the first blacks joining in 1957, and jobs, relationships, knowledge and choice assignments are passed on from friend to friend and generation to generation.

“I just call it ‘the network,’” Tinney says. The white firefighters’ attorney, Karen Torre, said they would not be interviewed for this story. In a conversation on Fox News’ “Hannity” program, Marcarelli said it was “gut wrenching” to learn that he was No. 1 on the test but would not get promoted. “It’s something that shakes what you believe in. Because you believe if you work hard, you’re rewarded for that, and that’s not necessarily the case,” Marcarelli said. Torre said whites have no special advantage in promotions because of laws requiring use of a race-blind, score-based system. She added that many blacks have relatives on the force, including high-ranking officers.

One hundred and eighteen people took the tests; 56 passed. Nineteen of the top scorers were eligible for promotion to 15 open lieutenant and captain positions. Based on the test results, the city said that no minorities would have been eligible for lieutenant, and two Hispanics would have been eligible for captain. (The lawsuit was filed by 20 white plaintiffs, including one man who is both white and Hispanic.)

The exams were designed by a professional testing firm that followed federal guidelines for mitigating disparate racial outcomes, the plaintiffs say.  But after the results came back, the city says it found evidence that the tests were potentially flawed. Sources of bias included that the written section measured memorization rather ….. ….. than actual skills needed for the jobs; giving too much weight to the written section; and lack of testing for leadership in emergency conditions, according to a brief filed by officers of the Society for Industrial and Organizational Psychology.

“I’m sure there are numerous reasons why (blacks didn’t do as well), and not because we’re not as intelligent,” Tinney says. “There’s a lot of underlying issues to that … these folks are saying, ‘We studied the hardest, we passed the test, we should be promoted.’ But they’re not talking about all the other things.”

Torre argues that discarding a test because no minorities would have been promoted violates the equal protection clause of the U.S. Constitution and Title VII of the Civil Rights Act, which forbids discrimination because of race.  Call it a legal riddle only the Supreme Court could solve: The white firefighters say Title VII prohibits discrimination against them for being white; New Haven says Title VII prohibits it from using a test that has a disparate impact against blacks.

“All were afforded the same notice, the same study period, the same exam syllabi, etc.,” said Torre, who would only answer questions by e-mail. “The rest was up to the individual.” There are long-standing divisions over the concept of hardworking, qualified whites being “victimized” by laws or practices designed to help minorities overcome America’s history of racism. What’s different today is that the landscape has shifted in many ways, big and small.

The biggest is the election of President Barack Obama, and the support he received from millions of white voters.  “It is not white racism that plays the deciding role in the success of minorities any more,” says Edward Blum, a visiting scholar at the American Enterprise Institute who believes that race should not be considered in employment decisions.

“That was the case in the ’60s and ’70s and maybe even part of the ’80s,” he says. “But it is no longer the case in the 21st century that because you are black you are being held back from achieving what your parents and your ambitions will allow you to achieve. I think that has been crystallized with the election of President Obama.” Obama’s election has been a boon to the movement that developed years ago seeking to reshape civil rights laws designed to remedy discrimination.

Besides the firefighters’ lawsuit, the Supreme Court will soon hear a case seeking to overturn a Voting Rights Act requirement that all or parts of 16 states with a history of discrimination must get approval from the Justice Department before changing election procedures. And in 2007, the court struck down voluntary integration plans in two public school districts. Even though it may result in less opportunities for qualified minorities, “the use of race does greater harm to our social fabric by being there than by being eliminated,” Blum says.

Another major shift has been in the balance of the Supreme Court. Conservatives gained a 5-4 majority during the Bush administration, although Justice Anthony Kennedy is seen as a potential swing vote.

In Chief Justice John Roberts’ majority opinion in the 2007 school ruling, one line rang loudest: “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” That statement was seen as a harbinger of future rulings that would end the use of race in employment, voting and awarding government contracts. It also rebutted a famous statement by Justice Harry Blackmun in the landmark Bakke affirmative action case: “In order to treat some persons equally, we must treat them differently.”

Mary Frances Berry, a history professor at the University of Pennsylvania and head of the U.S. Commission on Civil Rights during the Clinton administration, said the firefighters’ case has broad implications.  “This is about whether we are going to see a sea change in how the judiciary looks at the need for these (protections), and how the popular culture and electoral politics influence their perceptions,” Berry said.

The Obama administration has said such laws are needed and it is committed to enforcing them. The Justice Department’s brief in the firefighters case supports New Haven’s position that the city acted properly in throwing out the tests.  But in what many call a political maneuver designed to avoid taking sides, the Justice Department stopped short of saying the firefighters’ case should be dismissed, instead recommending that it be remanded to a lower court to determine if city’s decision was a pretext for intentional discrimination.

Polls show varying levels of support for affirmative action programs. In an AP-Yahoo poll conducted in December 2007 through January 2008, one-quarter of respondents favored affirmative action programs and 37 percent opposed them. Another 36 percent neither favored nor opposed them.  Jesse Washington, Black In America, April 2009

A September 2007 Pew poll, which did not give people the option to say they had no opinion, found that 46 percent of people said they favored affirmative action programs that give special preferences to qualified blacks in hiring and education, while 40 percent opposed such programs.

Last November, Colorado voters became the first in the nation to reject a ban on state affirmative action programs. Similar measures have been approved in Nebraska, California, Michigan and Washington.

Supreme Court observers predict the firefighters’ lawsuit will be decided by a 5-4 margin, with Justice Kennedy casting the deciding vote. His past decisions give hope to both sides.

In the recent Voting Rights Act decision that made it harder for some minority candidates to win election when voting districts are redrawn, Kennedy wrote in the majority opinion that “racial discrimination and racially polarized voting are not ancient history. Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions.”  ”It would be an irony, however,” Kennedy continued, if civil rights laws were used to “entrench racial differences.” Jesse Washington, Black In America, April 2009
http://www.blackamericaweb.com/?q=articles/news/the_state_of_black_america_news/8656/1

According to a March 24, 2009 Equal Employment Opportunity Commission Press Release, EEOC attorneys announced the settlement of a pay discrimination lawsuit filed the EEOC, alleging that Adelphi University paid a group of women professors less than male professors performing the same work.  See, http://www.eeoc.gov .  As stated in the Press Release, the EEOC lawsuit alleged, in essence, that a class of full-time female professors was paid less than male professors of the same or lesser rank teaching within the same school and that this violation had been ongoing since at least April of 2004.  In addition, the Press Release stated that pay discrimination by gender violates the Equal Pay Act and Title VII of the Civil Rights Act of 1964.  Whether pay discrimination in employment occurs in Houston, Texas or elsewhere, victims of unequal pay may contact the EEOC to file a charge of discrimination and contact an attorney to determine if a pay discrimination lawsuit may ultimately be appropriate under the facts and circumstances the particular potential case.

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