Category: Uncategorized

So What Has the EEOC Been Up to Lately? And, What is Their Game Plan for Next 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. 

A Small Business Resource Center Compliments of the EEOC

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. 

US Department of Labor Joins Forces with the Pennsylvania Department of Labor to Address Employee Misclassification

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. 

Employers: You May Need to Accommodate

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. 

New Rules for Implementing the New Workforce Innovation and Opportunity Act

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. 

The New Overtime Rules are Here. What it Means to Your Business

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 announcedthe 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. 

EEOC Publishes Fact Sheet to Assist Small Businesses

By: Christina M. Reger 

In a recent press release, the EEOC published a one-page fact sheet designed to help small business owners better understand their responsibilities under the federal employment anti-discrimination laws. 

The fact sheet is the first in a series of publications anticipated by the Small Business Task Force to provide crucial information to small business owners to assist them in complying with our workplace anti-discrimination laws,” said EEOC Chair Jenny R. Yang. “The Task Force is working to ensure that small business owners have the tools they need to ensure equal employment opportunity in their workplaces.” 

The fact sheet summarizes what the EEOC enforces, what businesses the laws cover (for most of you that would be private employers that employ at least 15 employees), and then walks through the process of what happens when an employee files a charge, how the EEOC investigation is conducted and concludes by summarizing the possible outcomes of such an investigation. 

If You Have, or Think You Have, Muslim or Middle Eastern Employees, You Need to Read This

By: Christina M. Reger 

In its continued efforts to protect vulnerable employees, on December 23, the EEOC released a statement and two resource documents, in question-and-answer format, explaining federal laws prohibiting employment discrimination against individuals who are, or are perceived to be, Muslim or Middle Eastern. The documents come “in the wake of tragic events at home and abroad” and urge employers to take “steps to issue or re-issue policies on preventing harassment, retaliation, and other forms of discrimination in the workplace” and “remain vigilant and to communicate their commitment to inclusive workplaces throughout their organizations.” 

The Press Release can be found here: 

http://www.eeoc.gov/eeoc/newsroom/release/12-13-15.cfm 
 
The employer question and answer, which provided advice on hiring and other employment decisions, harassment, religious accommodation, background checks and retaliation, can be found by clicking here: 

http://www.eeoc.gov/eeoc/publications/muslim_middle_eastern_employers.cfm 
 
The EEOC also provided links to additional EEOC resources for employers: 
EEOC Compliance Manual on Religious Discrimination 

http://www.eeoc.gov/policy/docs/religion.html 
Best Practices for Eradicating Religious Discrimination in the Workplace 

http://www.eeoc.gov/policy/docs/best_practices_religion.html 
 
Since you do not always know what a person’s religious affiliation or national origin, it might be a good idea to evaluate, update if necessary, and reissue your discrimination policy. The EEOC also recommends training to reinforce the policies. 

Expanding the Scope of ‘Ban the Box’ in Philadelphia

By: Christina M. Reger

On Wednesday, Mayor Nutter signed an Executive Order amending the Fair Criminal Screening Ordinance, better known as Ban the Box. The amendments are intended to “encourage employers to consider the whole person and the gravity of the offense.” In signing the amendments, Mayor Nutter proclaimed, “everyone deserves an opportunity to work and to provide for their families and should not be discriminated against because of previous bad decisions.”

Under the Order, no city agency or private employer with at least one employee can ask about criminal backgrounds and arrests on a job application. The employer may conduct a background check following a conditional offer ofemployment. However, if the background check indicates a conviction in the past seven years, the employer must consider the nature of the crime, the time that has passed since the offense and the duties of the job in making the determination on whether toextend a firm offer.

Other key provisions of the amendment include:Employers may conduct a criminal background check only after a conditional offer of employment has been made.

The Ordinance is applicable to all employers, public and private, with oneor more employees.

Employers must consider guidelines when determining whether to disqualify an applicant on the basis of his or her criminal record.

An employer can only examine a criminal record going back seven years, excluding periods of incarceration.

Employers must notify the applicant in writing if they are rejected and provide the applicant with a copy of the criminal history report. Applicants have 10 business days following the rejection to provide evidence of an inaccuracy on the report or to provide an explanation.

Applicants have 300 calendar days to file a complaint with the Philadelphia Commission on Human Relations.

If you are planning on hiring in the new year, you need to consider this Order, even though it does not take effect for 90 days. Oh and don’t forget the Fair Credit Reporting Act, which is the federal regulation addressing background checks. Lastly, if you have an employee handbook, it should be updated to address these revisions. If you do not have an employee handbook, . . .well, we should talk.