The Government’s Closed: What About the Agencies That Monitor the Workplace?

Okay, then, the government is … closed for business? Alrighty. You know what you’d do if you had a bunch of bickering employees who decided they weren’t going to turn up for work until everything in the office went their way? Yep. You’d shitcan them! But, this is Congress, so we’ll just give them robust, free health benefits, bulky pensions and let them come back when they’re ready to play again.

So, while they’re off at Martha’s Vineyard lazing on the porch of their little 12 bedroom cottage, what happens to the agencies that oversee the workplace?

Day Pitney LLP has put together a briefing for you. Here are the highlights:

National Labor Relations Board (NLRB): All NLRB field offices will be shut down. Services affected include: representation and unfair labor practice charge docketing, investigations, hearings, complaints, and settlements; injunctions and enforcement actions; and administrative law judge and board decisions. Eleven employees (the five Board Members, the Acting General Counsel, and a few others who hold senior leadership positions with the agency) are the only individuals the agency currently exempted from furlough. Additional staff may be called to handle emergencies during the shutdown.

Equal Employment Opportunity Commission (EEOC): The EEOC will continue to function with 107 (out of 2,164) staff members nationwide. During the temporary shutdown, the agency will continue to docket new charges and federal sector appeals. It also will litigate lawsuits where continuances are not granted by the court and will seek injunctive relief as necessary. While the EEOC is accepting new charges during the shutdown, it will not investigate those charges. The EEOC also will not conduct mediations or process FOIA requests during the shutdown.

Occupational Safety and Health Administration (OSHA): OSHA will temporarily cease all operations except for those which relate to “emergencies involving the safety of human life or protection of property.” Two hundred and thirty staff members will continue to work at the agency through the shut down and will be able to respond to safety and health complaints which involve potentially hazardous conditions that “present a high risk of death or serious physical harm.”

Department of Labor Wage and Hour Division (WHD): The WHD will suspend operations and will furlough all but six employees.

U.S. Citizenship and Immigration Services (USCIS) and Employment and Training Administration (ETA): Fee for service activities performed by the USCIS are expected to continue because they are funded by sources other than appropriated funds. During the temporary shutdown, USCIS expects to furlough only 353 of 12,558 employees. Consular operations domestically and overseas, run by the State Department, will remain 100% operational only as long as there are fees to support those operations. However, E-verify temporarily will be shut down, and the ETA will not process any foreign labor certifications needed for some employment-based visas during the period of a temporary shut down.

SHRM also has some info on what the EEOC will do during the shutdown and how it will affect employers.

Wow. Shame that all the people at these agencies who have been furloughed haven’t been invited to the Vineyard with the Congressmen who gave them their unwanted, unpaid vacations…

EEOC’s New Strategic Plan May Mean A Tougher Anti-Discrimination Stance

The EEOC, or Equal Opportunity Employment Commission, is the government agency vested with the authority to enforce anti-discrimination legislation such as Title VII of the Civil Rights Act of 1964 and The Age Discrimination in Employment Act. The EEOC currently maintains an advisory and investigatory role, issuing guidance to employers on the meaning of anti-discrimination legislation and investigating allegations of discriminatory behavior to identify and take action against employers who violate the law. Like all administrative agencies, the EEOC must develop and post a strategic plan every four fiscal years. This means that the EEOC is now working on a draft of its 2012-2016 plan. 

The EEOC Revised Plan

Based on the current proposed EEOC draft, it is clear that the agency intends to take a more proactive role in curbing discriminatory behavior. The EEOC has long taken a relatively passive stance, although there have been indications that is changing for a while. The statisics for 2011, in fact, show that the year was a record one for both the number of discrimination charges filed and the amount of damages recovered from employers. The new plan puts into writing the EEOC’s new and more aggressive stance, instituting changes such as:

• Policies for fighting discrimination through law enforcement
• A plan for increased anti-discrimination education and for more outreach programs
• A plan to make it easier for the public to obtain EEOC services. 

Employers need to be aware that the EEOC is increasing enforcement tactics and efforts and should take a moment to read the new plan in full to understand what types of changes are expected.

The Takeaway

The important thing to remember is that it is your obligation to avoid not only overt discrimination, but also practices that can be viewed as discriminatory. To avoid potential allegations of discrimination by the EEOC:

• Maintain a clear anti-discrimination policy and hiring policy that promotes equal opportunity employment
• Provide anti-discrimination training at all levels and be sure managers and employees understand the legal implications of discriminatory behavior
• Review screening practices and pre-hiring qualifications to ensure that none are having a discriminatory effect
• Take great care in performance reviews and put everything in writing in case you need documentation to prove why employment decisions were made.  

By being proactive yourself to avoid discrimination, you can avoid any potential problems with the new and more proactive EEOC plan. 

EEOC Lawsuit Spree & Reasonable Accommodations

According to The National Law Journal, in the last ten days of August 2011, the Equal Opportunity Employment Commission filed 15 lawsuits in a ten day period of time, cracking down on major companies including Kohl’s and Ford and even filing a lawsuit against the American Samoa government. These lawsuits targeted employers allegedly liable for a variety of different types of discrimination, including age discrimination and a failure to provide reasonable accommodations for disabled employees. 

Reasonable Accommodation Litigation

Several of the lawsuits filed by the EEOC target employers who allegedly failed to provide reasonable accommodations for disabled individuals in violation of the Americans with Disabilities Act (ADEA). This act defines a disabled individual as anyone who either has “a physical or mental impairment that substantially limits one or more of the major life activities” (United States Code Title 42 Chapter 126 § 12102), who has a record of such an impairment or who is perceived as having such an impairment. 

EEOC lawsuits brought in August against employers for failure to provide reasonable accommodations include:

• An action against Ford for refusing to allow telecommuting by an employee with irritable bowel syndrome
• An action against Atlanta-based company SITA for rescinding a job offer when a new hire asked to push back her start date due to discovering she needed cancer surgery. 
• An action against Kohl’s Department Stores for refusing to provide a diabetic employee with a regular schedule of hours

While these lawsuits remain pending, in the last days of August of 2011, a case against Starbucks that had been brought by the EEOC ended with a $75,000 legal settlement against the company. In the Starbucks reasonable accommodation case, Reuters reports that Starbuck’s refusal to give a “dwarf barista” a stool in El Paso Texas was considered a violation of the ADEA because a stool would have been a reasonable accommodation allowing her to work. Starbucks will also be subject to a two-year consent decree, which means that the court and federal government can oversee its efforts to comply with anti-discrimination laws, and must provide it’s managers with training on how to accommodate disabilities. 

Protecting Yourself from an EEOC Lawsuit

With so many EEOC lawsuits occurring in such a short time, it’s natural for employers to wonder what they can do in order to avoid becoming a party to litigation themselves. A few tips can help you to avoid potential liability and ensure you comply with ADEA and other civil rights laws:

• Remain up-to-date on changes to EEOC rules and regulations. For instance, in March of 2008, the ADA Amendments Act made significant changes to the definition of disability which went into effect in 2009. 
• Provide reasonable accommodations to employers for religious worship and on the basis of disability. Reasonable accommodations are generally defined as changes or accommodations you can make that do not impose an undue burden on you or other employees
• Have clear anti-discrimination and anti-harassment policies in place in order to minimize the risk of a hostile work environment or other type of discrimination lawsuit. 

While the lawsuit spree of 15 lawsuits in ten days was an unusual wave of litigation, discrimination lawsuits are nothing new and being vigilant is the best and only way to protect your company from liability. 

Unintended Discrimination against Older Workers in the Workplace

Age discrimination can be tricky in the modern workforce. For instance, you could be discriminating against your older, more experienced employees without even realizing.

And knowing how these cases are viewed by a court of law is important to protect yourself and your organization down the line.  

In an interesting post on The HR Café blog this week, here’s a situation that many managers could easily find themselves facing:  

You’ve got an older employee named Joe on your team. It’s your job to maximize productivity, and his performance has fallen. It seems clear to you that Joe’s age is preventing him from meeting the demands of his job.

 

Can you transfer him to a lower-paying job he can handle?

  

Read the HR Café Blog article

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Women Are Logging More Hours than Men in Their Jobs

“With this economy, women are taking on more of a breadwinner role in the family, and part of this is working more hours,” says Laura Vanderkam, author of 168 Hours: You Have More Time Than You Think.  

In a research study, conducted by the U.S. Bureau of Labor Statistics, the work-life changes since 2009 have affected women more than men. For instance:  

• Women are working more hours overall than they did two years ago, including weekends
• Employed women spends 7 hours and 26 minutes a day, on average, doing work
• Women only have their weekend time for doing household activities and socializing  

Women, who have historically worked fewer hours than men, are catching up as the hours men work are decreasing.  

Read the USA Today article

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Could Your Wellness Program Be Violating the Americans with Disabilities Act?

Wellness programs are a great way to boost employee morale and promote the whole work and life balance at an organization. But could financial incentives for a wellness program be a negative issue for employees with disabilities?  

According to a recent court ruling in Broward County, Florida: It is not a violation of the Americans with Disabilities Act (ADA) for an employer to require employees to participate in a wellness plan, or face a $20 surcharge on insurance premiums.  

As stated by the U.S. District Court for the Southern District of Florida, “The wellness program is not a subterfuge; it was not designed to evade the purpose of the ADA. Rather, it is a valid term of a benefits plan that falls within the ambit of the ADA’s safe harbor provision.”  

Related to this case on wellness program incentives in the past, the EEOC has loosely suggested that any wellness program that is mandatory or involves a penalty violates the Act.  

While no guidelines have been issued at this point, employers and HR should be cautious and check with a legal expert about this wellness incentive.  

Read the Tech Republic article

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EEOC Focuses on Today’s Gender Pay Gap Problem

The Equal Employment Opportunity Commission (EEOC) has already hosted two dozen events in their focused efforts to address the gender pay gap in America. Fortunately for employees who work in federal government, there is a higher level of equal pay in federal jobs versus private sector jobs.  

As reported by Washington Post columnist Joe Davidson, it is the General Schedule that takes the most credit for keeping down gender-based pay disputes.  

“The General Schedule ensures that the vast majority of federal employees — regardless of gender, age, race or other personal characteristics — are rewarded solely based on their performance, knowledge and experience,” said Colleen M. Kelley, president of the National Treasury Employees Union.  

According to the data provided by the U.S. General Accountability Office, women who work in federal government jobs make 11 cents less than their male colleagues. The EEOC is concerned also with the wage gap that exists for women of color and women with disabilities.  

Read the Washington Post article

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Disability Law Changes to Impact Small Businesses

According to BusinessWeek, in 2010, there were 25,165 disability discrimination charges filed with the EEOC, up from 21,451 charges in fiscal year 2009. Now starting in May, numerous small businesses will be impacted by a few major amendments to the Americans with Disabilities Act.  

The new regulations specify a whole list of impairments that the EEOC recognizes, including: deafness, blindness, autism, cancer, cerebral palsy, diabetes, epilepsy, and major depression. In September 2008, the ADA was officially amended, and now these changes will be enforceable.  

However, instead of placing the burden of providing proof solely on the employee, the revised Act seeks to hold employers responsible. The message is clear that instead of an employer or HR focusing on whether an employee is disabled, they should focus on the potential discrimination and accommodation they can make available.  

For small businesses, this compliance may cost them more money and resources to respond to claims.  

The EEOC estimated that up to 38 million disabled people may be impacted as a result of these changes, plus businesses may end up spending between $60 million to $180 million to provide reasonable accommodation and any legal costs.  

Read the BusinessWeek article  

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What Can Facebook Tell You About a Potential Job Candidate?

Thanks to popular social networking sites like LinkedIn, Facebook, Twitter, and Ning, it has become even easier for HR professionals to find and screen potential job candidates without a big recruiting budget.  

On Facebook alone, there are 600 million active users who spend between 6 and 12 hours each month on the site. It has become cheaper and easier for HR to communicate with targeted candidates on a frequent basis. Plus, there are things you’ll learn about a candidate’s work style and personality that you may never learn from a resume, cover letter, or initial interview.  

For example, you may learn about how acts of unprofessionalism (e.g., badmouthing their current employer), political views, personal interests and hobbies, skills, and more. However, there are legal risks that every professional should be aware of.  

According to a recent CIO Magazine article:  

“If a company gets five, 10, 15 or 20 of these EEOC charges filed in a short period of time, it starts to raise some eyebrows. The EEOC will investigate the claims, and if the job seekers get their right to sue letters, that’s when the candidate has the opportunity to hire an attorney and take their own course of legal action.”  

To learn more, read the CIO Magazine article here

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Employees Are Using Technology to Record Acts of Work Discrimination

Did you know that more employees are secretly using technology to record instances of sexual harassment and discrimination in your workplace?  

According to a recent ABC News report, now with cell phones, audio recorders, and other digital devices, employees are collecting evidence to protect themselves at work.  

Labor experts and employment lawyers say that as cell phones and other digital devices have become more common, employees have gotten increasingly savvy about using high-tech tools to record what they consider discriminatory or inappropriate activity at the office, often in secret.  

Joe Bontke, an outreach manager for the Equal Employment Opportunity Commission in Houston, said he estimates that one-third of the people who come to the Houston E.E.O.C. office to file discrimination complaints bring some kind of digital evidence with them, such as audio and video recordings, email messages, text messages and photos.  

Be sure to visit the below link to read the full story and watch the video of a real employee’s experience.  

Read the ABC News article

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