By: Christina M. Reger 

Unless you have been on a deserted island this past week, with no access to social media, you have heard the stories about Harvey Weinstein.  In case you missed it, you can get the details here and here. 

 Sexual harassment can happen in every organization — some industries more than others.  However, how a company handles complaints — or even whispers — of sexual harassment (or assault!) will have a significant impact. 

It seems incredible that the Board at the Weinstein Company did not know about the antics of its founder.  Yet, many a company will turn a blind eye to the actions of its executive, its top performer or its best salesperson. 

Doing so will (not may) have severe ramifications for the company.  First it sends a message of unacceptable behavior which will permeate the organization’s culture.  Second, it rewards the wrong individual and legitimizes the conduct.  And, third, it could have disastrous effects for the company once exposed. 

So, what is a company to do? 

First:  Investigate the conduct — even if you do not have an official complaint, but merely whisperings in the office (or a public acknowledgement at the Oscars).  Do not hesitate to properly investigate the conduct alleged.  Hire an outside investigation firm or contact your attorney for guidance. 

Second, if the evidence warrants, take action.  Even if the person is your top performer, CEO, or best salesperson.  Sexual harassment is inexcusable.  Yes, even for you, Harvey Weinstein. 

Apology NOT ACCEPTED. 

By: Christina M. Reger 


Just when you thought you had it all figured out, here comes the EEOC again. This time, the EEOC’s latest Guidance is aimed at revising, consolidating and superseding four existing EEOC documents issued in the 1990s and portions of the EEOC Compliance Manual. The Guidance responds to a report issued by the EEOC’s Select Task Force on a Study of Harassment in the Workplace, issued in June 2016, which I am sure all of you read. In case you have not, you can find the 95-page document here. 

This report sets forth findings and recommendations about harassment prevention strategies, including how to effectively train employees to reduce incidents of harassment and effective employer policies. 

So, in your copious amounts of free time, you can peruse the 75 page document and offer your comments to the EEOC. 

Or…. 

you can read this blog to get the highlights and know what is coming down the pike — often whether you like it or not. 

The document does not focus solely on sexual harassment but addresses all types of harassment. As Chair Jenny R. Yang has stated, “Harassment remains a serious workplace problem that is the concern of all Americans. It is important for employers to understand the actions they can take today to prevent and address harassment in their workplaces. . . . The Commission looks forward to hearing public input on the proposed enforcement guidance.” 

The Guidance also focuses on defining and evaluating a hostile-work environment claim as well as the basis for holding employers liable. It also provides examples of unlawful conduct. Now is the perfect time to take a fresh look at your harassment policies and see if yours is up to snuff. 

The EEOC will accept public input until February 9, 2017. 

By: Christina M. Reger 

So it’s 2017. What will you do differently? What goals have you set for your company? 

No business resolution list is complete without an examination of your HR policies and employee issues. 

Specifically, here are the top five issues an employer should examine in 2017: 

1. Are your employees classified correctly? 

Even though the new overtime regulations seem to have died on the vine, it doesn’t change the fact that many of your employees may be misclassified and entitled to overtime anyway. To ensure good health and good wealth in the new year, you should examine your workforce and make sure that those employees that are entitled to overtime are getting it. 

2. Are your independent contractors really employees? 

You know that contractor that has been working full-time with your company for years, or is now performing a function that is core to your operations? Perhaps they are not (or no longer) really independent. The Department of Labor’s crusade on this issue has not (and likely will not) die. 

3. Has your employee handbook been reviewed and updated? 

With all of the changes in the law in just the last year or two, it’s time to dust off that employee handbook, make sure it’s still accurate and that it says what you want it to say. Remember, if you have a dissatisfied employee, the first place they will look is your handbook. Do you know what it says? 

4. Are you hiring in 2017? 

Great, hiring is a sign of growth. But, hiring has become its own landmine. Make sure you comply with the FCRA, the new I-9 regulations, Ban the Box, and the anticipated regulations on asking about salary requirements. If you have no idea what I am talking about, time to talk to your trusted employment attorney. 

5. Do you have a social media policy? And if you do, when was it updated? 

So two points if you have a policy, but if you haven’t updated it in 6 months, it is out of date. Since then, Facebook launched a live feature and the government launched worker.gov among the many, many changes to social media. Time to take a look at what you have by way of social media. 

So there you have it. I could go on, but that should be enough to keep you busy for quite some time. 

Wishing all of you a prosperous and litigation-free new year! 

By: Christina M. Reger 
 
Hot off the presses, the EEOC published its fiscal year 2016 Performance Report. For a quick summary of the 104 page report, you can click on the press release, or just read this post. 
 
In a nutshell, the agency secured $482M for victims of discrimination. The good news, that number is down from the approximately $525M collected in FY 2015. 
  
 An increase in EEOC staff has resulted in the resolution of 97,443 claims; more than the number of actual complaints received last year. 
 
The agency received 585,000 calls to its toll free number and handled 160,000 pre-charge inquires. 
 
So what does all of this mean? A whole lot of people think to call the EEOC if they have an issue. 
 
In case you want to read the entire report, or are having trouble sleeping at night, you can find the complete report here. 
 
Want to know what the EEOC plans to do in the next few years? 
 
In its Strategic Enforcement Plan released last month, the EEOC summarizes six areas where it intends to focus its activities in the coming year….that is assuming President-elect Trump doesn’t have other plans. 
 
The six areas are: 
 
Eliminating barriers in recruitment and hiring; 
 
Protecting immigrant, migrant and other vulnerable workers; 
 
Addressing emerging and developing employment discrimination issues; 
 
Enforcing equal pay laws; 
 
Preserving access to the legal system; and 
 
Preventing harassment through systemic enforcement and targeted outreach. 
 
Notable updates from the last Plan include, 1) issues related to complex employment relationships in the 21st century workplace; and 2) backlash discrimination against those who are Muslim or Sikh, or persons of Arab, Middle Eastern or South Asian descent, as well as persons perceived to be members of these groups, as tragic events in the United States and abroad have increased the likelihood of discrimination against these communities. 
 
The Plan suggests that if you are an individual represented by an attorney with a harassment claim, best to go to court because you will not be on the EEOC’s agenda. But if you are a group of individuals complaining about (a) Americans with Disabilities Act coverage, including reasonable accommodations, qualification standards, or undue hardship; or (b) pregnancy accommodations; or c) LGBT rights, you may get asked to stay for dinner. 
 
So….. employers, the flip side of that observation is that if you have THAT employee, who is complaining about harassment, rather than seeing an EEOC charge in your mailbox, you may be handed a lawsuit filed in federal court. 

By: Christina M. Reger 
 
Many of you have often asked me how to keep up with all of the laws, rules and regulations that govern employers. I am going to make your life a little bit easier. Well, I can’t take all the credit, the EEOC’s new Small Business Resource Center can help. I am just the person making sure you know about it. 
 
So what is this all about? Recently, the EEOC announced the release of an online resource center that” provides a user-friendly one-stop source for information on federal employment anti-discrimination laws.” 
 
As Commissioner Constance Barker stated, 
 
Startups and other small businesses continue to play an integral role in the strength of our nation’s economy. It is our responsibility as a federal government agency to help businesses understand their legal obligations under the complex and ever-changing laws and regulations we enforce. We want small businesses to be able to quickly and easily access the information they need to comply with the laws. It is our hope that the Small Business Resource Center will help them do just that, so that they can focus their time and efforts on growing their businesses and creating new jobs. 
 
But which laws apply to your small business, you ask? Good question. The EEOC explains here what laws apply depending on the size of your business. A fact sheet will summarize the most pertinent information for you. There is even a link to frequently asked questions, which provides even more links to answers to your most burning EEOC questions. 
 
In short, the Small Business Resource Center is a handy dandy tool for small business to quickly access information and answer questions. But, it still requires something that small business owners often do not have…TIME. So, I have another solution, you can always call that employment lawyer that specializes in working with small businesses. 

By: Christina M. Reger 
 
Well, it’s not like I didn’t warn you that this day was coming. 
 
Today, the United States Department of Labor issued a press release stating that it has signed a three year agreement with the Pennsylvania Department of Labor and Industry to “provide accurate and easy-to-access outreach to employers, employees and other stakeholders; share resources; and enhance enforcement by conducting coordinated investigations and sharing information consistent with applicable law.” 
 
Right… 
 
Dr. David Weil of the U.S. DOL describes the program as follows: “The Wage and Hour Division continues to attack this problem head on through a combination of a robust education and outreach, and nationwide, data-driven strategic enforcement across industries. Our goal is always to strive toward workplaces with decreased misclassification, increased compliance, and more workers receiving a fair day’s pay for a fair day’s work.” 
 
The Press Release can be found here. 
 
For more information on the misclassification issue, click on the DOL resource here. 
 
Think your independent contractors may be misclassified, check out the factors in my July 20, 2015 post. 
 
So what does this mean for you? 
 
Big brother is not just watching, but he’s coming to a theater near you. If you have independent contractors and you have not evaluated whether they truly are independent contractors, now is the time, lest you be buying Uncle Sam a big bucket of popcorn to join you for the double feature. 

By: Christina M. Reger 
 
Maybe they don’t have enough to do, or maybe they need to increase revenues, whatever the reason, the EEOC last week issued a Fact Sheet to educate younger workers on their rights and remedies regarding religious discrimination. 
 
Specifically, the Fact Sheet was “designed to help young workers better understand their rights and responsibilities under the federal employment anti-discrimination laws prohibiting religious discrimination.” The EEOC press release can be found here. 
 
Combating Religious Discrimination Today, a community engagement initiative coordinated by the White House and the U.S. Department of Justice, Civil Rights Division, brought together EEOC and other federal agencies to promote religious freedom, challenge religious discrimination, and enhance efforts to combat religion-based hate violence and crimes.  

What does this mean for me, the employer? 
  
It means that whatever your employee’s religious beliefs are, or no matter how crazy they seem, as long as they are “sincerely held,” they are protected. 
 
But, it is the employee’s burden to let the employer know that he/she needs a religious accommodation. 
 
So, if you can accommodate the request without much disruption — even if it sounds crazy –, do it and avoid potentially bigger problems. And, remember, retaliating against someone who complains about religious discrimination could also land you in hot water. 

By: Christina M. Reger 
 
Last week, while most of you were taking off early to begin your holiday weekend, the Department of Labor, along with the Department of Education was busy publishing new rules to make your lives all a little more interesting. The Workforce Innovation and Opportunity Act (WIOA), “is landmark legislation that is designed to strengthen and improve our nation’s public workforce system and help get Americans, including youth and those with significant barriers to employment, into high-quality jobs and careers and help employers hire and retain skilled workers.”  

 
As summarized in the Press Release, “The rules reflect input from stakeholders including employers and community leaders and details what the goals of a modern, agile, effective workforce should be, and how partners can work to achieve those goals. These rules aim to spur growth in local and regional economies; streamline and improve the coordination of employment and training services across federal agencies; and strengthen collaboration between the federal government, employers, states and municipalities.” 
 
As always, there are plenty of resources in case you are having trouble sleeping one night: Fact Sheets - one, two and three; and the ever popular Frequently Asked Questions. There is also a Quick Reference Guide for the DOL Rule only. 
 
But Tina . . . what does this all mean to me and what do I have to do now?? 
 
Read it all and find out! That’s what my mom used to say! 
 
The answer is: it remains to be seen. These new rules are designed to HELP business identify and employ more qualified skilled labor. Let’s see how it actually develops. 
 
Oh, and You’re Welcome. 

By: Christina M. Reger 

Last week, the EEOC published a proposed Guidance on national origin discrimination. 

The Guidance discusses hiring and firing decisions as well as harassment and language issues. A copy of the policy is attached here. Public comment is available for 30 days. 

By: Christina M. Reger 

The Department of Labor (DOL) has announced the new overtime rules (amendments to the Fair Labor Standards Act (FLSA) to be technical). 

After receiving more than 270,000 comments to the proposed regulations published last July, President Obama and the DOL announced the new rule yesterday. The Final Rules focus primarily on increasing the salary levels for Executive, Administrative and Professional workers to be considered “exempt” from the overtime rules. 

The DOL has summarized the major changes as follows: 

1. Sets the standard salary level at the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region, currently the South ($913 per week; $47,476 annually for a full-year worker); 

2. Sets the total annual compensation requirement for highly compensated employees (HCE) subject to a minimal duties test to the annual equivalent of the 90th percentile of full-time salaried workers nationally ($134,004); and 

3. Establishes a mechanism for automatically updating the salary and compensation levels every three years to maintain the levels at the above percentiles and to ensure that they continue to provide useful and effective tests for exemption. 

4. Additionally, the Final Rule amends the salary basis test to allow employers to use nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10 percent of the new standard salary level. 

Does this apply to my business? The FLSA applies to generally to employees of enterprises that have an annual gross volume of sales made or business done of $500,000 or more. In addition, employees of certain entities are covered by the FLSA regardless of the amount of gross volume of sales or business done. These entities include: hospitals; businesses providing medical or nursing care for residents; schools (whether operated for profit or not for profit); and public agencies. 

What does this mean for my business? If you have salaried employees between the current overtime threshold of $23,660 and the new threshold of $47,476 you must examine these positions and you will likely need to re-classify these positions as hourly. If these people typically work more than 40 hours per week, keep in mind that you will have to pay them time and a half for hours over 40. 

Do I have to take action now? The sooner the better. Based on the number of employees / types of employees that you have, you may need to restructure your workforce, hire additional people or change the way in which your company does business. 

Also, keep in mind that while these rules were intended to benefit the American worker, changing employees who previously were salaried and now telling them they need to punch a time clock, could have a significant impact on employee morale. 


But I don’t have time to read all of that! Where can I get help? If there was ever a time to consult with an employment lawyer, particularly one that works with small and mid-sized businesses, now is the time. I am offering one- and two-hour consultations to assist businesses is understanding how to implement the Final Rule for their business. Please contact my office to set up an appointment.