ProView Standard: Compensation Audits, Swine Flu Preparedness, Employee Rights in Disciplinary Meetings

Best Practices for Compensation Audits
Swine Flu: Is Your Workplace Prepared?
Employee Rights in Disciplinary Meetings Q&A
Balancing Prescription Drugs, Work, & ADA Q&A
Doctor's Orders: Keep Your Skin Safe in the Sun

May 2009

Best Practices for Compensation Audits

Recent changes in the legal and economic landscape have significantly heightened the risk that employers’ compensation systems will come under attack. Congress has passed the Lilly Ledbetter Fair Pay Act (“Ledbetter”), which effectively waives the statute of limitations for compensation discrimination claims under the majority of federal employment statutes. The law increases a plaintiff’s ability to recover for compensation discrimination, by placing into issue each and every decision impacting pay, starting from the date of initial hire, rather than just those decisions that occurred within the statutory filing period. The law has made the issue of pay equity a hot button issue. Plaintiffs’ attorneys and government regulators are primed for attack.

The Obama administration also has brought the specter of increased EEOC and OFCCP enforcement activity, as well as the possibility of additional pro-employee legislation in the pay discrimination arena. Of note is the Paycheck Fairness Act (“PFA”), which, if passed in its current form, would substantially amend the Equal Pay Act of 1963 and make it significantly easier for employees to establish unlawful pay discrimination. The PFA broadens the categories of employees that plaintiffs can claim as comparators for purposes of showing pay inequity; it sharply curtails the affirmative defenses available to employers; it makes it easier for plaintiff’s attorneys to bring large class-action lawsuits; and it permits uncapped compensatory and punitive damages. It also allows the OFCCP to use a simplistic and often inaccurate “pay grade methodology” when identifying federal contractors unjustly investigated and makes it more difficult for them to defend against agency audits.

Coupled with these legal developments have been a rash of company layoffs, rising unemployment, and an increasing number of employees and former employees who face difficult financial plights. All of these forces make employee compensation discrimination lawsuits more likely. Conducting internal audits to identify disparities in compensation that might be subject to legal challenge, and appropriately addressing such disparities, is one of the best ways to prevent pay discrimination lawsuits and to place your organization in the most favorable position should they occur. This article provides guidance for in-house counsel and human resources executives when undertaking such audits.

A. The Purpose of a Pay Equity Audit

Preventive pay audits help ensure fairness in pay rates among similarly-situated employees, which serves to maintain good workplace morale, potentially averting employee lawsuits. Such audits enable an organization to assess its susceptibility to a claim of systemic, pattern or practice discrimination, which may be brought by the EEOC, OFCCP or private litigant(s) in either an individual or class action context. Preventive audits also enable an organization to anticipate its vulnerabilities and fix them in advance of any regulatory or private employee challenge. For federal contractors, they also serve to meet the OFCCP compliance requirement that contractors regularly evaluate their compensation systems to determine any sex, race, or ethnicity-based disparities. If a legal challenge should occur, the information learned during the audit, and any ameliorative steps taken by the employer to fix problems uncovered during the audit, will be of critical assistance in defending and ultimately defeating such a challenge.

To be effective, however, it is imperative that the audit results be statistically sound, legally defensible, and, to the maximum extent possible, shielded from disclosure by the attorney-client privilege. The following is a list of tips for conducting these audits.

B. Best Practice Tips

1. Identify the Factors that Influence Compensation.

Before conducting any audit, it is important to identify the legitimate (i.e., nondiscriminatory) factors that influence employee compensation in your organization. Such factors typically include “job-related” characteristics, such as: job title; pay grade/band; function; type of work performed; level of responsibility; sector or personnel area; and geographic location. They also may include “productivity-related” characteristics, such as: time in current job; direct measures of performance – e.g., performance scores or sales results; and indirect measures that may be correlated with performance – e.g., education level, pre-hire experience, and company seniority.

Also important is the identification of whether the compensation variables are universal across the organization, or whether they differ by business unit, geographic location, or other factors. There may be one business unit where a certain educational degree is a critically important factor affecting compensation (e.g., the finance unit at a company might routinely offer $25,000 more in starting salary to an employee who has an MBA). In another unit, the same educational degree may have little or no effect on compensation (e.g., in a creative writing department, an employee who earned an MBA early in his or her career, but then switched careers to become a writer, may not receive any added compensation at all for the MBA). The more accurately the employer can identify and understand the variables affecting compensation up front, the more accurate the results of the statistical analysis will be.

2. Review Compensation Policies and Procedures.

Another important preliminary step is to identify and review all of the organization’s policies and practices that bear on employee compensation. These will include topics such as: pay grade/band structure; quartile charts, grids, or matrices used for setting percentage increase amounts; standards for merit and other increases, bonuses, commissions, and any other forms of compensation; and performance evaluations. It is important that the employer’s written policies be consistent with the factors that have been identified as influencing compensation. Additionally, the more the employer has documented the legitimate factors that it considers relevant to compensation, the easier it will be for it to defend use of those factors in its statistical analyses.

To the extent there are pay practices that are not memorialized in writing, consider documenting them and updating them as they arise in the future. Some common events that affect compensation, but which often are not properly memorialized in writing, include:

An employer might decide to eliminate the job position of a group of employees and transfer them into different available positions. To the extent the available positions are within a lower salary grade, the employer might decide not to reduce the pay of the transferred employees, despite the fact that their pay may appear “off the charts” when compared to other employees in that lower salary grade.

An employer might premise base salaries for certain job positions on market studies as to what comparable employees are making elsewhere. Periodically, the company may make adjustments to the salaries of employees in specific job positions so as to remain competitive and retain talent. If such adjustments are not made to the salaries of employees in job positions that, while different in kind, are substantially similar in terms of skills required, level of responsibility and other factors, a statistical pay disparity may result and be subject to future challenge.

The above practices are common; but all too often, they are handled on an ad-hoc basis and are not memorialized in the type of formal writing that could be used to explain resulting statistical pay disparities. Especially in light of Ledbetter, it is in the employer’s interest to invest the time up front to document these practices in a manner that can inform future proceedings.

3. Be Prepared for Possibly Harmful Audit Results.

Before embarking on an audit project, the employer must be prepared for the possibility that the audit will uncover statistically significant compensation differences among protected and unprotected employee groups. These discrepancies may be isolated among a handful of individual comparator employees, or in certain job groups, or within certain geographical or business units. They also may be present across the organization as a whole. Such results do not mean that the company has engaged in discrimination. Cultural and historical factors have resulted in compensation disparities between males and females, and minorities and non-minorities, in society at large into the present day.

Nonetheless, such statistical results may be an indication that discrimination has occurred – either unintentionally or intentionally – at some past point in time. Under Ledbetter, a female or minority employee can challenge a single discriminatory compensation decision that occurred decades ago, but which results today in the employee being paid less than a similarly situated male or nonminority employee. It may be impossible for the employer to defend the pay discrepancy at issue because the supervisor who made the pay decision is no longer with the company or is otherwise unavailable, and there are no documents or other evidence to rely upon. There may be a perfectly legitimate explanation for the present-day pay disparity despite the unfavorable statistical results.

Depending on the statistical results of the audit, pay adjustments may be advisable for only a handful of employees, or they may be warranted on a larger, systemic scale. Before starting any pay audit, therefore, it is critical that you obtain the buy-in from the high-level decision makers who will have to approve the resources for any such compensation fixes. Knowing about inexplicable pay disparities and failing to correct them is worse than not knowing.

4. Use an Experienced Outside Attorney.

In order to maximize the opportunity to protect audit results from disclosure under the attorney-client privilege, it is imperative to retain outside counsel to conduct the audit. Courts have held that if there is evidence that the audit was performed for general business purposes (such as for determining whether a compensation system is working correctly and fairly, or to assist the company in planning and establishing salaries, etc.), the audit materials may not be privileged and may not in fact be protected from disclosure.

Nevertheless, there are many ways to try to maximize the chance that your audit results, or at least parts of them, will remain confidential and shielded from disclosure, including by engaging outside counsel to conduct the audit for purposes of providing legal advice in connection with an assessment of litigation risk and/or compliance with EEO laws. The engagement letter with outside counsel should reflect the privileged nature of the audit. Other steps, including treating all communications about the audit as attorney-client privileged, limiting internal disclosure and discussion of audit results, and carefully planning the extent and content of any written reports on the audit, can assist in protecting the audit as privileged and confidential.

5. Ensure Use of Proper Statistical Technique.

To ensure a statistically sound analysis, it is critical for your counsel to engage and work with a qualified statistician. The most common approach to an audit of compensation is a multiple regression analysis. In a multiple regression analysis, a “neutral” model is developed that includes certain “variables” that are assumed to affect a given “outcome.” In a pay audit, the “outcome” is typically the proposed pay rate for the following year (that tentatively has been decided, but not yet put into effect). The “variables” are the neutral factors that have been identified as playing a role in predicting salary. In the process of incorporating the variables, the model tests and confirms that each variable does in fact, from a statistical standpoint, have an influence on compensation. In this way, the statistical analysis itself can help to identify the factors that influence pay at a given organization.

Statistics can be powerful descriptive tools, but generated improperly, they will be meaningless and potentially harmful. Improper technique can result in inaccurate and misleading results. By working closely with an expert statistician who is experienced in conducting pay equity audits, you will maximize the reliability of your results.

6. Document Information Learned During the Audit.

Finally, an audit of compensation often will result in company human resources performing some investigative work to determine the propriety of certain individuals’ pay that cannot be explained by the data. The company should document the results of such investigative efforts so that it does not have to reinvent the wheel every year.

C. Conclusion

Pay equity audits are not just for government contractors anymore. Any organization wishing to be proactive in its risk management is wise to consider such audits in light of the Ledbetter Act. The above summary outlines just a few of the important steps an organization should take when deciding to conduct a pay equity audit.

¹For more information on the Ledbetter Act, see our Client Alert at http://www.preceptgroup.com/company/news/article.aspx?PRPRI=209.standard

Note : The information in this Alert was provided to Precept by Proskauer Rose LLP. Proskauer is an international full-service law firm with over 60 employee benefits attorneys located in offices across the United States. The information in this article is not intended as legal advice nor is it intended to provide a comprehensive review of the legal matters discussed. For more information about Proskauer, please contact Peter Marathas at (617) 526-9704 or pmarathas@proskauer.com. ©2009 Proskauer Rose LLP. All rights reserved. Used with permission.

Swine Flu: Is Your Workplace Prepared?

Editor’s note: While the initial fear of the swine flu pandemic seems to have calmed, the following information is still important to keep in mind with any flu or disease outbreak. With the concern over SARS, avian flu, and swine flu in recent years, employers must be prepared for any and all events that could affect their employees and their businesses.

As of this writing, the Centers for Disease Control and Prevention has confirmed 109 cases of the H1N1 virus, commonly known as swine flu, in the United States. The World Health Organization has confirmed 331 cases of swine flu worldwide and has raised the pandemic threat level to Phase 5 on its six-step scale (Phase 5 designation essentially means that infections from the outbreak that originated in Mexico have been jumping from person to person with relative ease). This article outlines a few of the myriad legal issues that employers may face with regard to swine flu. As every situation is different, employers are strongly encouraged to seek the advice of counsel with respect to any questions related to these issues.

General Duty of Care

Under federal and state laws, employers have a duty of care to their employees, and thus may be required to provide employees with information on the spread of swine flu, to take protective measures against the spread of the contagion, and to provide warning if employees may have been exposed to someone diagnosed with the disease (but not identifying that individual).

Employers should consider developing written policies, guidelines and training materials with information about swine flu, so that employees know how to look for symptoms, avoid contamination, and prevent the spread of the virus.

For more information about swine flu, employees should be encouraged to visit the Department of Health and Human Services pandemic flu website (www.PandemicFlu.gov), the American Centers for Disease Control website (www.cdc.gov), and the World Health Organization website (www.who.int).

In locations with a high concentration of employees, employers may want to arrange for on-site coverage by a doctor or nurse to be available in the event of an ill employee, contractor or visitor on the site, to assure appropriate measures are taken, and to answer questions that may arise.

Keeping Employees Out of the Workplace

If an employer has reason to believe that an employee is ill with flu-like symptoms, the employer can instruct the employee to go home. Employees should be told not to report for work if they are experiencing flu-like symptoms.

Employers should develop or evaluate existing telecommuting policies, to determine standards for allowing employees to telecommute during the pandemic threat. Individuals in jobs that are not normally candidates for telecommuting might nevertheless be allowed to do so if there is a sufficient risk of contagion. This would reduce the potential for spreading swine flu among employees, enable more employees to function for a longer period of time, and result in fewer confrontations over a refusal to report to work.

Employers may have the right to discipline or discharge any employee who comes to work when directed not to do so. Such a directive should only be given if there is a legitimate non-discriminatory reason, such as a reasonable suspicion that the employee is ill with flu-like symptoms or may have been exposed to swine flu, that the workplace is unsafe, or that there is insufficient work for the employee because of the pandemic.

Employee Refusal To Come to Work

Under some circumstances, an employee may have the right to refuse to perform a task or refuse to come to work if the employee reasonably believes that the work would place the employee in imminent danger of death or serious injury. Whether swine flu could meet such a standard is not clear and must be determined on a case-by-case basis, depending on the circumstances. The more the risk can be reduced through protective and preventive measures, the less justification will exist for an employee to refuse to come to work.

Where an employee’s refusal to come to work is unjustified, the employer may impose disciplinary action, though employers are strongly advised to seek the advice of counsel before doing so.

FMLA Leave

Under some circumstances, swine flu may qualify as a serious health condition under the Family and Medical Leave Act (and similar state leave laws), such that an employee may be entitled to personal medical leave or leave to care for a family member.

If an employer mandates leave for employees who may have been exposed to swine flu or who are exhibiting flu-like symptoms, whether such leave could be counted as FMLA leave will depend on the circumstances. Employers may wish to conditionally designate such mandated time off as FMLA leave, pending further information from the employee or a health care provider.

Directive to See a Doctor

Generally, an employer may send an employee to a qualified health care provider, if the employer has a reasonable belief that the employee is a direct threat to him- or herself or to others in the workplace. Thus, at least while there is a serious threat of pandemic swine flu, if an employee appears ill with flu-like symptoms in the workplace, the employer could ask the employee to be seen by a physician and provide a doctor’s note indicating that the employee is cleared to return to work.

Note that many states require an employer to pay for any mandatory medical examination, at least to the extent that it is not covered by insurance.

Reporting to Authorities

While only a few states require employers to report suspected contagious diseases to public health authorities, if someone in the workplace is diagnosed or is reasonably suspected to have contracted swine flu, employers are advised to contact the Department of Health for guidance.

Planning

Employers should review the policies and procedures they have in place for dealing with pandemics and other emergencies, and modify them as appropriate.

Employers are encouraged to put a pandemic flu plan in place. To the extent that employers utilize, either directly or through a provider, services that may play a role in spreading or containing a contagion (such as food preparation services, cleaning crews, on-premises day care, or the like), employers should consider including such services in their preparedness planning.

Employers subject to collective bargaining agreements should note that they may have bargaining obligations with respect to new policies or procedures (or changes to existing policies and procedures) that they intend to implement.

Insurance Issues

The prospect of a swine flu pandemic presents a wide range of insurance issues ranging from obvious issues of health, worker’s compensation and employers’ liability coverage, to more complex issues concerning coverage for property damage and business interruption. Depending on applicable wordings, property policies may cover business interruption due to loss of stock, supply chain disruptions, restrictions on ingress and egress by civil authority and closings of facilities due to contamination. Environmental impairment, travel and event cancellation polices also are likely to be implicated. Employers are encouraged to seek the advice of counsel with respect to any of these issues.

Of course, the above are just a few of the many issues employers are facing, and will face, with regard to this important issue. Because the situation is changing rapidly, and because an employer’s rights and obligations in this area will depend on the facts and circumstances specific to that employer, employers are advised to seek the advice of counsel whenever employment issues related to swine flu arise.

Employee Rights in Disciplinary Meetings Q&A

Q:We are conducting an investigation into allegations of misconduct by an employee, and, when we notified him that we wanted to discuss our findings with him, the employee asked to bring a co-worker to the interview “as a witness.” Do we have to allow him to have the other employee present?

A:You don’t currently have to if the employee is not represented by a union. In union workplaces, a represented employee has the right to have a union representative present, upon request, during an investigatory interview, if the employee reasonably believes that the interview may result in discipline.

This representation right is known as the Weingarten right because it stems from the Supreme Court’s 1975 decision in NLRB v. Weingarten Inc., 420 U.S. 251 (1975). In Weingarten, the Court determined that the right to union representation during these interviews falls within Section 7 of the National Labor Relation Act’s (NLRA) guarantee that employees may engage in “concerted activities for the purpose of mutual aid or protection.”

However, the National Labor Relations Board (NLRB) has found that union employees cannot insist on having a representative present during a meeting if the meeting’s sole purpose is to notify the employee of previously decided disciplinary action. See, e.g., Baton Rouge Water Works Co., 246 N.L.R.B. 995 (1979). In addition, the employer may not retaliate against the employee for requesting representation. See Slaughter v. NLRB, 876 F.2d 11 (3d Cir. 1989).

(Note that the NLRA’s definition of who is an employee protected by the Act does not include supervisors. A supervisor is defined as “any individual having authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action.” In addition, the supervisor must use independent judgment in the exercise of such authority and cannot act in merely a routine or clerical nature.)

Nonunion employees, however, currently do not have the right to have a representative present during a disciplinary investigation or interview. In IBM Corp., 341 N.L.R.B. No. 148 (2004), the NLRB found that the Weingarten right to representation during an investigative interview does not apply to nonunion employees. The Board cited several policy considerations for its decision, including the fact that nonunion workers do not represent the interests of the entire workforce in the way that a union representative does and do not have the same skills and knowledge of internal policies as union representatives have.

With this decision, the NLRB overturned the position it had followed since 2000 allowing for coworker representation during these interviews, as an exercise of their right to engage in concerted activities under the NLRA. See Epilepsy Found. of N.E. Ohio, 331 N.L.R.B. 676 (2000), enfd. in relevant part, Epilepsy Found. of N.E. Ohio v. NLRB, 268 F.3d 1095 (D.C. Cir. 2001), cert. denied, 536 U.S. 904 (2002) (finding that the Weingarten right applies to both nonunion and union employees). The IBM Corp. decision marks the fourth time since 1982 that the agency has flip-flopped its position on this issue.

Because the President appoints members to the five-member NLRB for staggered five-year terms, there is a good chance that the previous Epilepsy Foundation rationale advocating nonunion representation could be reinstated. Currently, the NLRB is operating with only two members, so President Obama will have an opportunity to appoint three new members who could be more likely to favor representation for nonunion employees.

But, for now, the Board’s current position allows management discretion. While a coworker may genuinely be concerned about another employee who is being investigated, that coworker likely will not act in a way to further the workplace rights of other employees as a group, as the NLRA intends. At best, a coworker can lend moral support and act as a witness for the employee. At worst, he may impede your ability to implement your policies and procedures or jeopardize a confidential investigation.

You should note, though, that even though nonunion employees are not entitled to representation, you still may not retaliate against them for requesting representation at an investigative or disciplinary proceeding. See Wal-Mart Stores, Inc., 343 N.L.R.B. No. 127 (2004). So, while you can refuse the employee’s request, you should not discipline him for asking for the representation.

Reprinted with permission from HR Matters E-Tips, copyright Personnel Policy Service, Inc., Louisville, KY, all rights reserved, the HR Policy and Employment Law Compliance Experts for over 30 years, 1-800-437-3735. Personnel Policy Service markets group legal service benefits and publishes HR information products, including the free weekly electronic newsletter, HR Matters E-Tips (www.ppspublishers.com/hrmetips.htm). This article is not intended as legal advice. Readers are encouraged to seek appropriate legal or other professional advice.

Balancing Prescription Drugs, Work, & ADA Q&A

Q:We have an employee who drives as part of her job duties. She recently requested that she be excused from attending early meetings because her prescription medication makes her drowsy in the morning. We are now concerned that she may not be able to perform her driving duties safely. Can we ask her for more information about her medication use and its affects?

A:You can and should take action once you have been alerted that an employee who drives as part of her job may be impaired because of medication. In addition, you need to respond to her accommodation request for a modification in her work duties.

As your question implies, your organization could be liable for any injuries caused by the employee’s impairment, either to her or to a third party, while she is driving as part of her job duties. Under the legal doctrine of respondeat superior, an employer can be liable to injured third parties if the employee was acting within the scope of her duties or in the furtherance of your interests when she caused the accident.

But, you also should be aware that you have to balance your liability concerns with the employee’s potential protection under the Americans with Disabilities Act (ADA).

The ADA restricts medical inquiries of current employees to those that are job-related and consistent with business necessity. This restriction is intended to prevent employers from asking about disabilities and so applies to all employees, not just disabled ones. According to the Equal Employment Opportunity Commission (EEOC), a medical inquiry or examination of an employee meets this standard when an employee requests an accommodation. In addition, if you reasonably believe that an employee’s medical condition will cause the employee to pose a direct threat, you can make medical inquiries.

Thus, in the example you gave, arguably, you have legitimate reasons to request medical information about the drug the employee is taking and about the underlying medical condition that could be a disability you must accommodate. First, you need the information to support her accommodation request (missing the meeting or rescheduling it). Second, you need to be able to determine if her medication could affect her ability to drive safely, thus potentially posing a direct threat to her or others.

Accordingly, you should request that the employee provide medical certification from her doctor regarding the effect of the medication on her ability to perform her job duties, i.e., both on arriving at work on time in the morning and driving safely. In addition, you can request information regarding whether the employee has a disability that warrants an accommodation. (As a reminder, the ADA defines a disability as (1) a physical or mental impairment which substantially limits a major life activity; (2) a record of having an impairment; or (3) being regarded as having an impairment.)

Once you receive the medical certification information, you can evaluate whether she is disabled and entitled to an accommodation and whether she will be able to perform her driving duties safely. If the employee’s condition does not meet the ADA disability definition, you have no duty to accommodate her. Of course, you also can provide an accommodation voluntarily if she is not covered by the ADA, but you should still make sure that she can perform her job duties safely.

Note the ADA also allows you to take adverse employment action against a disabled employee who poses a direct threat to the safety of others or herself. The direct threat standard is difficult to meet, however. To claim direct threat, you must show that there is a significant risk of substantial harm to the health or safety of the disabled individual or others that cannot be eliminated or reduced by reasonable accommodation. Further, the determination that an individual poses a direct threat must be based on reasonable medical judgment that relies on the most current medical knowledge available and takes into account: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of potential harm.

Doctor's Orders: Keep Your Skin Safe in the Sun

By Christopher H. Coulter, M.D., Chief Medical Officer

It will soon be summer, and most of us look forward to healthy activities outdoors – swimming, going to the beach, golf, barbeques, and enjoying the delights of being outdoors after being inside all winter. Most people have gotten the word that too much sun is dangerous, but what do we really need to do to be safe and still enjoy the sun?

First, a few words about why too much sun is a problem. Some of us are old enough to remember a time before sunscreens, when the sun was not a problem, outside of the occasional sunburn. That was also before the protective ozone layer started disappearing. Back then, more harmful ultraviolet radiation was blocked before it could do damage. Now, though, we are seeing patients in their 20s with sun-induced skin cancer.

Sun-induced skin cancer claims are growing rapidly. While OSHA has not issued employer guidelines for protecting employees whose jobs require sun exposure, OSHA has indicated that such protection is required as part of an employer's general obligation to provide personal protective equipment (OSHA Regulation 1910.132(a)).

What should you do to protect yourself? Think of three critical things:

1. Use sunscreen and use enough. There are a lot of products with sun protection factors (SPF) of 30 and higher, which will absorb about 97% of the ultraviolet radiation. Expect to use a full ounce to cover your body, about the amount contained in a shot glass. Put it on at least 15 minutes before going outside to provide maximum protection. Reapply every two hours, and after swimming or sweating. Don’t be fooled by cloudy days – the sun’s rays can be even more harmful on cloudy days than sunny days, so make sure to wear sunscreen everyday.

2. Avoid the worst exposure. There is more intense radiation during summer, and during the hours of 10 am to 3 pm, so plan your activities to minimize unprotected exposure during these peak hours.

3. Use sunglasses. Ultraviolet radiation also causes cataracts; good sunglasses will block ultraviolet radiation. Good sunglasses are not expensive – look for ones that block light from all directions and that are labeled to provide a minimum of 90 percent protection from UVA and 95 percent protection from UVB radiation.

A few more sun safety tips from the American Cancer Society and American Academy of Dermatology:

Protect children from sun exposure by playing in the shade, using protective clothing, and applying sunscreen.
Use extra caution near water, snow and sand as they reflect the damaging rays of the sun, which can increase your chance of sunburn.
Get vitamin D safely through a healthy diet that may include vitamin supplements. Don’t seek the sun.
Avoid tanning beds. Ultraviolet light from the sun and tanning beds can cause skin cancer and wrinkling. If you want to look like you’ve been in the sun, consider using a sunless self-tanning product, but continue to use sunscreen with it.
Check your birthday suit on your birthday. If you notice anything changing, growing, or bleeding on your skin, see a dermatologist. Skin cancer is very treatable when caught early.

While it is true that light-skinned individuals are more susceptible to sun damage, skin cancer is color blind and even dark-skinned individuals are vulnerable to ultraviolet radiation. The cancers that do develop, while there are fewer of them, are more aggressive in those with darker skin.

Enjoy your summers for many years to come – keep your skin safe.

Additional Sources: American Cancer Society, www.cancer.org; American Academy of Dermatology, www.aad.org.