EEO AND AFFIRMATIVE ACTION UPDATES and TRENDS
www.eeoguidance.com
OFCCP Announces Proposed Rule for Modifying Procedures to Identify and Remedy Discrimination in Federal Contracting
The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has announced a proposed modification to a final rule, “Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination.” The final rule has been in effect since December 10, 2020.
OFCCP has proposed rulemaking that aims to create a streamlined, efficient, and flexible process allowing the agency to use its resources strategically to remove barriers to equal employment opportunity. The 2020 rule codified two formal notices, the Predetermination Notice and the Notice of Violation, that the agency provides to federal contractors when it finds potential violations. These notices explain the concerns the agency has identified regarding noncompliance to federal contractors and give the contractor an opportunity to respond.
The 2020 rule also imposed inflexible evidentiary requirements early in the compliance evaluation process and attempted to codify complex evidentiary definitions for “qualitative” and “quantitative” evidence and other standards. In some instances, these heightened requirements for the pre-enforcement process go beyond what courts require for proof at trial.
The rigid evidentiary standards and definitions imposed by the 2020 rule impede OFCCP’s ability to provide contractors with early notification of indicators of discrimination. They also unnecessarily divert agency and contractor resources away from addressing discrimination. The 2020 rule’s standards did not assist workers and delayed the resolution of discrimination findings. The standards also create different evidentiary requirements for Executive Order 11246 matters than apply to Title VII matters, which is contrary to the approach generally followed by OFCCP and recognized in relevant case law.
OFCCP’s proposal would:
rescind these rigid evidentiary standards, while OFCCP would continue to issue a Predetermination Notice describing the preliminary indicators of discrimination and other potential violations.
clarify the use of the Predetermination Notice and the Notice of Violation as part of OFCCP’s pre-enforcement notice and conciliation procedures.
return the Predetermination Notice response period to the 15-calendar day period in effect prior to the 2020 rule (which OFCCP may extend for good cause).
retain the regulatory language regarding early resolution, which provides that contractors may waive notice procedures to enter directly into a conciliation agreement.
Together, these proposed modifications would restore flexibility to OFCCP’s pre-enforcement notice and conciliation procedures, promote efficiency in resolving cases, strengthen enforcement, and promote alignment of the standards governing OFCCP’s procedures with Title VII.
To learn more, read OFCCP Director Jenny R. Yang’s blog about the proposal. You can also read the Notice of Proposed Rulemaking, including instructions for submitting comments.
All public comments must be submitted by April 21, 2022.
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OFCCP and EEOC Launch Joint Hiring Initiative to Reimagine Equity (HIRE) - January 2022
Today, the Office of Federal Contract Compliance Programs (OFCCP) and the U.S. Equal Employment Opportunity Commission (EEOC) launched a joint initiative to reimagine hiring practices in ways that advance equal employment opportunity and help provide workers access to good jobs.
The Hiring Initiative to Reimagine Equity (HIRE) is a multi-year collaborative effort that will engage a broad array of stakeholders to expand access to good jobs for workers from underrepresented communities and help address key hiring and recruiting challenges.
As our nation makes major investments in our infrastructure and recovery, HIRE will:
Host convenings on organizational policy and practices to reimagine equity and expand opportunity in hiring.
Identify strategies to remove unnecessary barriers to hiring, and to promote effective, job-related hiring and recruitment practices to cultivate a diverse pool of qualified workers.
Promote equity in the use of tech-based hiring systems.
Develop resources to promote adoption of innovative and evidence-based recruiting and hiring practices that advance equity.
OFCCP and EEOC will hold a virtual public roundtable on January 19, 2022, at 2pm ET to commemorate Martin Luther King, Jr. Day and launch the initiative.
The fight for equal opportunity in the form of better jobs and higher wages played a critical role in Dr. King’s work. The roundtable, the first in a series of convenings, will focus on strategies for advancing racial equity and will bring together employers and worker organizations to understand how we can reimagine hiring practices in ways that advance equity and access to good jobs for underrepresented communities. As our nation rebuilds from the pandemic and adapts to a changing economy, the discussion will explore opportunities to connect and scale actionable solutions to advance equity in hiring.
Find out more about HIRE in the HIRE Fact Sheet. HIRE Initiative | U.S. Department of Labor (dol.gov)
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EEOC and EEO GUIDANCE, Inc. in line with effective EEO Training:
On June 2016, the EEOC opened up their Select Task Force on the Study of Harassment in the Workplace – What the EEOC’s Task Force is recommended, as efficient training, is exactly how EEO GUIDANCE, Inc. has been training for years – making your employees and managers Change Agents for your company. This is the most effective form of EEO related training.
https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm#_Toc453686310
Give us a call: 812-284-2993
EEOC Suggestions re: training include:
Training Must Change. Much of the training done over the last 30 years has not worked as a prevention tool - it's been too focused on simply avoiding legal liability. We believe effective training can reduce workplace harassment, and recognize that ineffective training can be unhelpful or even counterproductive. However, even effective training cannot occur in a vacuum - it must be part of a holistic culture of non-harassment that starts at the top. Similarly, one size does not fit all: Training is most effective when tailored to the specific workforce and workplace, and to different cohorts of employees. Finally, when trained correctly, middle-managers and first-line supervisors in particular can be an employer's most valuable resource in preventing and stopping harassment.
New and Different Approaches to Training Should Be Explored. We heard of several new models of training that may show promise for harassment training. "Bystander intervention training" - increasingly used to combat sexual violence on school campuses - empowers co-workers and gives them the tools to intervene when they witness harassing behavior, and may show promise for harassment prevention. Workplace "civility training" that does not focus on eliminating unwelcome or offensive behavior based on characteristics protected under employment non-discrimination laws, but rather on promoting respect and civility in the workplace generally, likewise may offer solutions.
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OFCCP Notes RE: Final Rule Promotes Pay Transparency
In too many workplaces around the country, women and people of color don’t know what their counterparts are earning for the same work. A culture of secrecy prevents them from finding out if they are being discriminated against in time to act on it. Lilly Ledbetter learned, only after decades at her job, that she had been paid less than her male counterparts. Her company’s policy forbidding her from discussing pay with co-workers prevented her from getting the information she needed to bring a complaint in time. The Lilly Ledbetter Fair Pay Restoration Act, the first piece of legislation signed by President Obama in 2009, helped people like her more effectively challenge unequal pay. However, pay secrecy policies still stand in the way of the fundamental principle of equal pay for equal work. If one of Lilly Ledbetter’s co-workers had simply been able to tell her about the discrimination that was taking place, she would have been better able to act in time to exercise her workplace rights. Indeed, the ability of workers to share information and effectively organize for their rights is a cornerstone of building an economy that works for everyone. Promoting pay transparency by prohibiting pay secrecy policies helps make the federal contractor workforce more efficient. Pay transparency helps level the playing field for women and people of color, and provides employers access to a diverse pool of qualified talent.
We know that Lilly Ledbetter’s case was not unique. Despite the existence of laws protecting workers from gender-based compensation discrimination for more than five decades, a pay gap between men and women persists today. Assuming that she works every year between ages 25 and 65, the typical woman will have lost $420,000 over her working lifetime because of the earnings gap, based on median annual earnings for full-time, year-round workers at age 25 and above in 2013. In addition to a wage gap between men and women, the research reveals a wage gap amongst various racial groups. At the beginning of 2015, median weekly earnings for African-American men working at full-time jobs totaled $680 per week - only 76 percent of the median for white men, who earned $897 per week. The median weekly earnings for African-American women equaled $611 per week, or 68 percent of the median for white men. When employees and applicants are prohibited from inquiring about, disclosing, or discussing their compensation with other workers, compensation discrimination is much more difficult to discover and remediate, and more likely to persist.
That is why, in 2014, President Obama issued Executive Order 13665, promoting pay transparency and openness, making it possible for workers and job applicants to share information about their pay and compensation without fear of discrimination. On September 11, 2015, the Department of Labor issued a Final Rule implementing that order. This Final Rule took effect on January 11, 2016, 120 days after its publication in the Federal Register, and amends the existing regulations that implement EO 11246.
The Final Rule amends the EO 11246 implementing regulations by:
Requiring that certain information be included in covered federal contracts and subcontracts. The Final Rule requires that the equal opportunity clause included in covered federal contracts and subcontracts be amended to include that federal contractors and subcontractors must refrain from discharging, or otherwise discriminating against, employees or applicants who inquire about, discuss, or disclose their compensation or the compensation of other employees or applicants. An exception exists where the employee or applicant makes the disclosure based on information obtained in the course of performing his or her essential job functions;
Requiring that federal contractors incorporate a prescribed nondiscrimination provision into their existing employee manuals or handbooks and disseminate the nondiscrimination provision to employees and to job applicants;
Defining key terms such as compensation, compensation information, and essential job functions as used in EO 11246, as amended; and
Providing employers with two defenses to an allegation of discrimination: a general defense, which could be based on the enforcement of a "workplace rule" that does not prohibit the discussion of compensation information; and an essential job functions defense.
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Expired Form I-9 Still in Effect: Employers have until April 27 to comment on proposed changes to new I-9 Form
4/1/2016
The current version of the Form I-9, the most fundamental tool HR professionals used to determine if applicants are eligible to work in the U.S., had a technical expiration date of March 31. Until further notice employers should keep using the form until the recently proposed “smart” I-9 is in effect, according to U.S. Citizenship and Immigration Services (USCIS).
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OFCCP Launches the Class Member Locator WebsitePage (for applicants/former employees who may not know they could be included in a class action settlement case)
CLICK HERE for the EEOC website page
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OFCCP and EEOC Collaborate on the Collection of Compensation Data
January 29, 2016 ~ The EEOC is proposing revisions to its longstanding EEO-1 form to require all employers with 100 or more employees, not just contractors, who currently submit the EEO-1 to submit additional summary data on wages paid to their employees, including by gender, race, and ethnicity.
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TO REVIEW THE EEOC OBLIGATIONS FACT SHEET FOR SMALL BUSINESSES ~ CLICK HERE
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March 2016 - EEOC Provides User-Friendly Overview of Federal Anti-Discrimination Laws in 30 Different Languages
WASHINGTON - The U.S. Equal Employment Opportunity Commission (EEOC) issued today a new simplified, one-page fact sheet designed to help small business owners better understand their responsibilities under the federal employment anti-discrimination laws.
The "Preventing Discrimination is Good Business" fact sheet provides a shortened, user-friendly overview of the legal obligations of small businesses under the anti-discrimination laws. It also provides information about other EEOC resources available for small business owners. It is being made available in 30 different languages to respond to the large number of small businesses across the country started by immigrants whose first language is not English. It will be posted on EEOC's public website at http://www.eeoc.gov/eeoc/publications/ and also distributed by the 53 EEOC offices nationwide as part of the agency's continuing outreach efforts to small businesses across the United States.
The fact sheet is a product of EEOC's Small Business Task Force led by Commissioner Constance S. Barker. Commissioner Barker launched the Task Force in 2011 to address the need to provide small businesses ready access to plainly written, easily understood information, through the use of the internet, social media and other sources. It is focusing on the needs of startups and companies that are too small to afford human resource professionals or lawyers. The small business fact sheet is the first in a series of products the Task Force is in the process of developing. The Task Force is also working on producing a series of short You Tube videos designed to provide quick, easy answers to questions often asked by small business owners.
"I am pleased to work with Commissioner Barker and 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."
"Startups and other small businesses continue to play an integral role in the strength of our nation's economy," said Commissioner Barker. "It is our responsibility at EEOC to help businesses understand their legal obligations under the complex and ever-changing federal employment discrimination laws and regulations. We want small businesses to be able to quickly and easily access the information they need to comply with the laws. That way, they can focus their time and efforts on growing their businesses, and creating new jobs."
For multiple languages, go to: http://www.eeoc.gov/eeoc/publications/index.cfm#smallbusiness
Or for English version, go to:
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Government Meets 5% Women-Owned Business Contracting Goal - 3/2016
There are 9,878,397 women-owned businesses in the United States. That’s an increase of 2,086,282 businesses, or 26.8%, from 2007. Of nonfarm and privately-held businesses, 36.3% are women-owned.
Slow but forward movement for women business owners, as the percent has now doubled since 2001.
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EEOC Implements Nationwide Procedures for Releasing Respondent Position Statements and Obtaining Responses from Charging Parties
EEOC has implemented nationwide procedures that provide for the release of Respondent position statements and non-confidential attachments to a Charging Party or her representative upon request during the investigation of her charge of discrimination.
These procedures apply to all EEOC requests for position statements made to Respondents on or after January 1, 2016.
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ATTN: TRI-CARE SUBCONTRACTORS
DIRECTIVE: U.S. DEPARTMENT OF LABOR
Office of Federal Contract Compliance Programs
Directives (DIRs) provide guidance to OFCCP staff or federal contractors on enforcement and compliance policy or procedures. Directives do not change the laws and regulations governing OFCCP’s programs and do not establish any legally enforceable rights or obligations.
Effective Date: May 7, 2014
SUBJECT: TRICARE Subcontractor Enforcement Activities
PURPOSE: To establish a five-year moratorium on enforcement of the affirmative obligations require of TRICARE subcontractors and to provide outreach and technical assistance.
REFERENCES: None. AFFECTED POLICY: None.
BACKGROUND: The Office of Federal Contract Compliance Programs (OFCCP) enforces Executive Order (E.O.) 11246, as amended, Section 503 of the Rehabilitation Act of 1973 (Section 503), as amended, and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA), as amended. Collectively, these laws prohibit federal contractors and subcontractors from discriminating on the basis of race, color, religion, sex, national origin, and status as a qualified individual with a disability or protected veteran. They also require federal contractors and subcontractors to take affirmative steps to ensure equal employment opportunity in their employment processes. In addition, these laws require that federal contracting agencies include in all covered contracts, and that contractors include in their subcontracts, an equal opportunity clause. For a definition of the terms “government contract,” “subcontract,” “prime contractor,” and “subcontractor” see 41 C.F.R. § 60-1.3 (E.O. 11246); 41 C.F.R. § 60-300.2 (VEVRAA); and 41 C.F.R. § 60-741.2 (Section 503). The authority to administer these laws, and to promulgate these regulations, rests solely with the Secretary of Labor.
Recent events have brought to OFCCP’s attention that there has been a difference in understanding between the Department of Labor and some entities affiliated with the TRICARE community, as to who is a covered subcontractor under the laws enforced by OFCCP. In light of this confusion regarding who is covered and what obligations the TRICARE subcontractor community has under the laws enforced by OFCCP, the agency is issuing this Directive. The Directive establishes a five-year moratorium on enforcement of the affirmative obligations required of all TRICARE subcontractors. During the moratorium period, OFCCP will engage in outreach and technical assistance to provide greater clarity for the TRICARE subcontractor community about their obligations under the laws administered by OFCCP. In addition, the agency will work with other federal agencies to clarify the coverage of health care providers under federal statutes applicable to subcontractors.
ROLES AND RESPONSIBILITIES: To the extent that there are any open compliance evaluations of TRICARE subcontractors covered by the moratorium as described below in Section (7)(a), OFCCP will administratively close those cases within 30 business days of the effective date of this directive. OFCCP issued its most recent scheduling list on January 24, 2014. Since this moratorium will be implemented subsequent to the issuance of that list and the previous scheduling list, dated March 2013, a TRICARE subcontractor establishment may receive an Office of Management and Budget (OMB)-approved OFCCP scheduling letter requesting an Affirmative Action Program (AAP) and supporting data. Should this occur, the TRICARE subcontractor covered by the moratorium shall send to its local OFCCP office a written request that the compliance evaluation be administratively closed with a copy of its agreement to participate in the TRICARE program. If a TRICARE subcontractor covered by the moratorium has received advance notification of scheduling through an OFCCP Corporate Scheduling Announcement Letter (CSAL), the subcontractor should not contact OFCCP. Instead, the subcontractor should wait to receive the OMB-approved OFCCP scheduling letter before it contacts the local OFCCP office to request that the compliance evaluation be administratively closed. A list of OFCCP’s local offices may be found at: http://www.dol.gov/ofccp/contacts/ofnation2.htm.
If during the course of his or her work, a Compliance Officer (CO) discovers that a TRICARE subcontractor has inadvertently been scheduled for review during the duration of this moratorium, the CO will administratively close the compliance evaluation through OFCCP’s normal administrative closure procedure by submitting a request to the National Office for approval to administratively close the compliance evaluation.
POLICY: Through the exercise of prosecutorial discretion, over the next five years, OFCCP will limit its enforcement activities of TRICARE subcontractors while it engages in extensive outreach and technical assistance to inform TRICARE participants of their responsibilities under OFCCP’s programs. In addition, during this time, OFCCP will work with other federal agencies to clarify the principles governing coverage of health-care providers under federal statutes applicable to contractors and subcontractors.
a. Who Is Covered? The five-year enforcement moratorium applies to all health-care entities that participate in TRICARE as subcontractors under a prime contract between the Department of Defense (DoD) TRICARE Management Activity and one of the prime managed-care contractors, including:
Health-care entities that participate in TRICARE only as subcontractors;
Health-care entities that participate in TRICARE as subcontractors and as subcontractors under any Medicare program;
Health-care entities that participate in TRICARE as subcontractors and as subcontractors under the Federal Employee Health Benefits Program (FEHBP); and
Health-care entities that participate in TRICARE as subcontractors and as subcontractors under any other federal health program.
b. Who is Not Covered? This moratorium does not apply to health-care entities that participate in TRICARE as subcontractors and who are holders of prime contracts with an agency of the federal government. Similarly, this moratorium does not extend to TRICARE subcontractors that hold a separate, independent non-health-care-related federal subcontract.
c. Scope of the Enforcement Moratorium: Except for investigation of discrimination complaints, OFCCP is hereby establishing a five-year moratorium on enforcement of all obligations under E.O. 11246, Section 503, and VEVRAA effective from the date of the issuance of this Directive, including enforcement of obligations related to affirmative action programs and recordkeeping, for TRICARE subcontractors as defined in Section 7(a) above. The moratorium does not apply to the processing of complaints of discrimination under 41 CFR 60-1.24; 41 CFR 60-300.61 and 41 CFR 60-741.61. This moratorium does not extend to any obligations a TRICARE subcontractor may have under other federal nondiscrimination laws, including Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e et seq.) and the Americans with Disabilities Act of 1990, as amended (42 U.S.C. 12101 et seq.).
Upon notice by OFCCP to a TRICARE subcontractor that a complaint of discrimination against the subcontractor has been filed with OFCCP, that subcontractor must retain the following records in its possession until the final disposition of the complaint or any lawsuit or proceeding based on the complaint: 1) personnel or employment records relating to the issues under investigation as a result of the complaint, including all personnel and employment records related to the complainant or other persons alleged to be aggrieved and to all other employees holding or seeking positions similar to that held or sought by the affected individual(s); and 2) all personnel and employment records related to application of the employment practice that is the subject of the complaint, e.g., a pre-employment test or reasonable accommodation practices. Failure to preserve complete and accurate records following the notification that a complaint has been filed will constitute noncompliance with E.O. 11246, Section 503, or VEVRAA, as applicable. Moreover, where the subcontractor has failed to preserve records after notification of a complaint, there may be a presumption that the information destroyed or not preserved would have been unfavorable to the subcontractor. 41 CFR 60-1.12(e); 41 CFR 60-300.80(c); and 41 CFR 60-741.80(c). Further, pursuant to 41 CFR 60-1.43, 41 CFR 60-300.81, and 41 CFR 60-741.81, TRICARE subcontractors must provide OFCCP with access to records and their place of business for the purpose of conducting the complaint investigation, including: inspecting and copying documents, conducting interviews of employees and managers and viewing the workplace.
d. Outreach and Technical Assistance: During the five-year moratorium, OFCCP will provide extensive technical assistance on compliance with the affirmative action obligations under E.O. 11246, Section 503, and VEVRAA. Among other things, OFCCP will:
Provide information, materials, and technical assistance training to TRICARE subcontractors on how to develop cost effective affirmative action plans and recordkeeping and applicant tracking systems;
Conduct regional and national webinars that cover OFCCP’s legal authorities, jurisdiction, and federal contractor and subcontractor obligations; and
Convene listening sessions to learn about the unique issues facing TRICARE subcontractors in order to provide relevant and targeted technical assistance under all of OFCCP’s legal authorities.
e. Notification of Compliance Assistance Opportunities for TRICARE Subcontractors. If you are a subcontractor under the TRICARE program, please e-mail OFCCP at OFCCP-Public@dol.gov to ensure that you receive notification about upcoming technical assistance and training events. In addition, you are encouraged to visit OFCCP’s website at www.dol.gov/ofccp for additional information about OFCCP, the laws it enforces, technical assistance materials, and upcoming events.
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Background Checks
What Employers Need to Know
A joint publication of the Equal Employment Opportunity Commission and the Federal Trade Commission
When making personnel decisions - including hiring, retention, promotion, and reassignment - employers sometimes want to consider the backgrounds of applicants and employees. For example, some employers might try to find out about the person's work history, education, criminal record, financial history, medical history, or use of social media. Except for certain restrictions related to medical and genetic information (see below), it's not illegal for an employer to ask questions about an applicant's or employee's background, or to require a background check.
However, any time you use an applicant's or employee's background information to make an employment decision, regardless of how you got the information, you must comply with federal laws that protect applicants and employees from discrimination. That includes discrimination based on race, color, national origin, sex, or religion; disability; genetic information (including family medical history); and age (40 or older). These laws are enforced by the Equal Employment Opportunity Commission (EEOC).
In addition, when you run background checks through a company in the business of compiling background information, you must comply with the Fair Credit Reporting Act (FCRA). The Federal Trade Commission (FTC) enforces the FCRA. This publication explains how to comply with both the federal nondiscrimination laws and the FCRA. It's also a good idea to review the laws of your state and municipality regarding background reports or information because some states and municipalities regulate the use of that information for employment purposes.
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Before You Get Background Information
EEOC
In all cases, make sure that you're treating everyone equally. It's illegal to check the background of applicants and employees when that decision is based on a person's race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older). For example, asking only people of a certain race about their financial histories or criminal records is evidence of discrimination.
Except in rare circumstances, don't try to get an applicant's or employee's genetic information, which includes family medical history. Even if you have that information, don't use it to make an employment decision. (For more information about this law, see the EEOC's publications explaining the Genetic Information Nondiscrimination Act, or GINA.) Don't ask any medical questions before a conditional job offer has been made. If the person has already started the job, don't ask medical questions unless you have objective evidence that he or she is unable to do the job or poses a safety risk because of a medical condition.
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FTC
If you get background information (for example, a credit or criminal background report) from a company in the business of compiling background information, there are additional procedures the FCRA requires beforehand:
Tell the applicant or employee you might use the information for decisions about his or her employment. This notice must be in writing and in a stand-alone format. The notice can't be in an employment application. You can include some minor additional information in the notice (like a brief description of the nature of consumer reports), but only if it doesn't confuse or detract from the notice.
If you are asking a company to provide an "investigative report" - a report based on personal interviews concerning a person's character, general reputation, personal characteristics, and lifestyle - you must also tell the applicant or employee of his or her right to a description of the nature and scope of the investigation.
Get the applicant's or employee's written permission to do the background check. This can be part of the document you use to notify the person that you will get the report. If you want the authorization to allow you to get background reports throughout the person's employment, make sure you say so clearly and conspicuously.
Certify to the company from which you are getting the report that you:
- notified the applicant and got their permission to get a background report;
- complied with all of the FCRA requirements; and
- won't discriminate against the applicant or employee, or otherwise misuse the information in violation of federal or state equal opportunity laws or regulations
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Using Background Information
EEOC
Any background information you receive from any source must not be used to discriminate in violation of federal law. This means that you should:
Apply the same standards to everyone, regardless of their race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older). For example, if you don't reject applicants of one ethnicity with certain financial histories or criminal records, you can't reject applicants of other ethnicities because they have the same or similar financial histories or criminal records.
Take special care when basing employment decisions on background problems that may be more common among people of a certain race, color, national origin, sex, or religion; among people who have a disability; or among people age 40 or older. For example, employers should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and does not accurately predict who will be a responsible, reliable, or safe employee. In legal terms, the policy or practice has a "disparate impact" and is not "job related and consistent with business necessity."
Be prepared to make exceptions for problems revealed during a background check that were caused by a disability. For example, if you are inclined not to hire a person because of a problem caused by a disability, you should allow the person to demonstrate his or her ability to do the job - despite the negative background information - unless doing so would cause significant financial or operational difficulty.
FTC
When taking an adverse action (for example, not hiring an applicant or firing an employee) based on background information obtained through a company in the business of compiling background information, the FCRA has additional requirements:
Before you take an adverse employment action, you must give the applicant or employee:
- a notice that includes a copy of the consumer report you relied on to make your decision; and
- a copy of "A Summary of Your Rights Under the Fair Credit Reporting Act," which you should have received from the company that sold you the report.
By giving the person the notice in advance, the person has an opportunity to review the report and explain any negative information.
After you take an adverse employment action, you must tell the applicant or employee (orally, in writing, or electronically):
- that he or she was rejected because of information in the report;
- the name, address, and phone number of the company that sold the report;
- that the company selling the report didn't make the hiring decision, and can't give specific reasons for it; and
- that he or she has a right to dispute the accuracy or completeness of the report, and to get an additional free report from the reporting company within 60 days.
Disposing of Background Information
EEOC: Any personnel or employment records you make or keep (including all application forms, regardless of whether the applicant was hired, and other records related to hiring) must be preserved for one year after the records were made, or after a personnel action was taken, whichever comes later. (The EEOC extends this requirement to two years for educational institutions and for state and local governments. The Department of Labor also extends this requirement to two years for federal contractors that have at least 150 employees and a government contract of at least $150,000.) If the applicant or employee files a charge of discrimination, you must maintain the records until the case is concluded.
FTC
Once you've satisfied all applicable record keeping requirements, you may dispose of any background reports you received. However, the law requires that you dispose of the reports - and any information gathered from them - securely. That can include burning, pulverizing, or shredding paper documents and disposing of electronic information so that it can't be read or reconstructed. For more information, see "Disposing of Consumer Report Information? Rule Tells How" at http://www.business.ftc.gov/documents/alt152-disposing-consumer-report-information-rule-tells-how.
Further Information: To find out more about federal antidiscrimination laws, visit www.eeoc.gov, or call the EEOC toll-free, 800-669-4000 (voice); TTY: 800-669-6820. The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information. The EEOC investigates, conciliates, and mediates charges of employment discrimination, and also files lawsuits in the public interest.
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Attn: Health Care Industry:
Who’s a government subcontractor now?
Taft Stettinius & Hollister LLP /Barbara A. Duncombe and Joshua D. Prentice
April 23 2013
Much has been written lately about the U.S. District Court for the District of Columbia ruling in UPMC Braddock v. Harris where three hospitals providing medical services to an HMO with a prime contract with the United States government are, in fact, considered “subcontractors”.1 The upshot of this label is that these hospitals are now subject to regulation by the Office of Federal Contract Compliance Programs (“OFCCP”) in the Department of Labor. OFCCP enforces the federal statutes and regulations related to affirmative action, equal employment opportunity and equal pay required of those who do business with the federal government.
In UPMC Braddock, the three hospitals contracted with the UPMC Health Plan, an HMO, to provide medical services to federal employees. When the covered employees received medical services at one of the UPMC hospitals, the hospital billed the HMO. The UPMC hospitals believed that while the HMO qualified as a federal subcontractor, they did not. The hospitals provided multiple reasons why they believed they were exempt from the OFCCP’s jurisdiction. The District Court rejected each argument in turn.
The hospitals argued that they failed to meet the definition of “subcontractor” because they did not provide “nonpersonal services” to the health plan as defined in OFCCP’s regulations. There is no explicit definition of the term “nonpersonal services” in the regulations and no such exception in the Federal Acquisition Regulations (“FAR”) exempting them as a subcontractor. The court noted that it would be illogical for the regulations to “exclude nurses, doctors, and other hospital staff members from the laws’ protection while insurance company staffers and construction workers, for instance, remain within the ambit of that protection.”
The hospitals also argued that the contractual language with the HMO excluded the hospitals as subcontractors. The court held that the hospitals could not escape their obligations under federal equal opportunity statutes merely through contract and that OFCCP’s definition of “subcontractor” is binding. The court rejected the argument that the hospitals never consented to the equal opportunity clauses, as required by OFCCP's regulations to be included in covered federal subcontracts. The court noted that OFCCP's equal opportunity clauses apply to covered entities by operation of federal law and consent is not necessary.
Interestingly, while UPMC Braddock was developing, there was another case in which hospital providers under another federal government health care plan were challenging the OFCCP’s jurisdiction on the grounds that they were not a subcontractor. Florida Hospital of Orlando provided health care services to members of the armed forces and their families through TRICARE under an agreement with the TRICARE prime contractor in Florida. Like the UPMC Braddock case, the government had provided in the TRICARE contracts that the HMO providers were exempt from OFCCP’s regulations. Therefore, Florida Hospital’s contract contained none of the OFCCP-required equal opportunity clauses. When OFCCP sent Florida Hospital a notice of an audit of its affirmative action compliance, the hospital refused to supply the requested information, asserting that OFCCP lacked jurisdiction. OFCCP issued a show cause notice before the Department of Labor Administrative Law Judge ("ALJ").
In October 2010, the ALJ concluded that Florida Hospital was required to comply with OFCCP’s demands. The hospital appealed the ALJ ruling. While on appeal, Congress included a provision in the National Defense Authorization Act for 2012 (“NDAA”) expressly stating that the “TRICARE managed care support contract that includes the requirement to establish, manage, or maintain a network of providers may not be considered to be a contract for the performance of health care services or supplies” in determining whether TRICARE providers are subcontractors “for purposes of the Federal Acquisition Regulation or any other law.” The ALJ then reversed the earlier Florida Hospital decision, citing the 2012 NDAA. While health care providers everywhere hoped that this would be the end of OFCCP’s quest to expand its jurisdiction, clearly their hopes were in vain. UPMC Braddock presents the same issues but under a different federal health care plan. For those keeping score, it is OFCCP 1 (Federal Employee Healthcare Benefit Plan), hospital providers 1 (TRICARE).
At this writing it is unclear whether Congress will take action to prevent countless hospitals and providers from falling under OFCCP’s jurisdiction due to the UPMC Braddock decision and, if so, whether it will exempt them regardless of the federal health care plan involved, or tackle the issue one program at a time. The greater cause for apprehension, however, is whether OFCCP will seek to expand its jurisdiction to MEDICARE and MEDICAID providers.
In the wake of the UPMC Braddock ruling, health care companies should now analyze whether their contracts with health plans expose their entities to consideration by the OFCCP as federal subcontractors. This comes at a difficult time as health care providers prepare for the onset of the Affordable Care Act and now, apparently, have to consider how, and at what cost, OFCCP’s regulations will affect their operations.
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EEOC
3-12-14
Social Media Is Part of Today’s Workplace but its Use May Raise Employment Discrimination Concerns
Experts Tell EEOC That Use of Social Media by Employers, Applicants and Employees May Implicate the Laws EEOC Enforces
WASHINGTON-The use of social media has become pervasive in today's workplace and, as a result, is having an impact on the enforcement of federal laws, a panel of experts told the U.S. Equal Employment Opportunity Commission (EEOC) at a meeting held today at EEOC Headquarters in Washington. The meeting was convened to gather information about the growing use of social media and how it impacts the laws the EEOC enforces.
"The increasing use of social media in the 21st century workplace presents new opportunities as well as questions and concerns," said EEOC Chair Jacqueline A. Berrien. "This meeting has helped the EEOC understand how social media is being used in the employment context and what impact it may have on the laws we enforce and on our mission to stop and remedy discriminatory practices in the workplace."
Jonathan Segal, speaking on behalf of the Society for Human Resource Management (SHRM), explained that employers use different types of social media for several different reasons: employee engagement and knowledge-sharing, such as having a corporate Facebook page or blog to keep employees in far-flung offices aware of new programs or policies; marketing to clients, potential customers and crisis management; and for recruitment and hiring of new employees. In fact, SHRM surveyed its members over several years and found that 77 percent of companies surveyed reported in 2013 that they used social networking sites to recruit candidates, up from 34 percent in 2008.
The use of sites such as LinkedIn and Facebook can provide a valuable tool for identifying good candidates by searching for specific qualifications, panelists told the Commission. But the improper use of information obtained from such sites may be discriminatory since most individuals' race, gender, general age and possibly ethnicity can be discerned from information on these sites.
Renee Jackson of Nixon Peabody LLP, who counsels corporations, said that social media should be one of many tools used in recruitment, in order to cast a wide net for potential candidates. To the extent that employers conduct a social media background check, it is better to have either a third party or a designated person within the company who does not make hiring decisions do the check, and only use publicly available information, not requesting passwords for social media accounts. In fact, as several panelists noted, there already exist four states with laws prohibiting employers from requesting passwords and user names from applicants/employees, a number of other states have such laws pending, and there are several proposals before Congress to do the same on a federal level.
The hiring process is not the only time that social media becomes relevant in the employment context. Lynne Bernabei, of Bernabei & Wachtel PLLC, who litigates on the plaintiffs' side, explained how use of personal social media accounts could figure into situations of workplace harassment. Even if employees post harassing or derogatory information about coworkers away from the workplace, for example, an employer may be liable for a hostile work environment if it was aware of the postings, or if the harassing employee was using employer-owned devices or accounts. "The issue is further complicated as more employers use a 'Bring Your Own Device' policy, in which they require or expect employees to use personal laptops, smartphones, or other technology while on the job," Bernabei observed.
The other major area addressed by witnesses was the increased use of social media as a source of discovery in employment discrimination litigation, even where housed on third-party sites. Rita Kittle, a Senior Trial Attorney in EEOC's Denver Field Office, warned, however, that the increased effort to access private social media communications may have a chilling effect on persons seeking to exercise their rights under federal anti-discrimination laws.
The EEOC has addressed some of the issues surrounding the use of social media, Acting Associate Legal Counsel Carol Miaskoff testified. In one reported decision arising from the federal sector, EEOC's Office of Federal Operations found that a claim of racial harassment due to a co-worker's Facebook postings could go forward. Additionally, in response to a letter from Senators Charles Schumer and Richard Blumenthal, the EEOC reiterated its long-standing position that personal information-such as that gleaned from social media postings-may not be used to make employment decisions on prohibited bases, such as race, gender, national origin, color, religion, age, disability or genetic information. Quoting from a 2010 informal discussion letter from the EEOC, Miaskoff noted that "the EEO laws do not expressly permit or prohibit use of specified technologies. . . . The key question . . . is how the selection tools are used."
Commissioner Victoria Lipnic, who helped organize the meeting, said: "As policymakers and regulators, it is our challenge, and I believe our responsibility, to do all that we can to ensure that our interpretation and administration of the laws within our charge are as current and fully-informed as possible."
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Office of Federal Contract Compliance Programs (OFCCP)
Non-Retaliation Policy for Federal Contractors
OFCCP has a long-established policy that requests by employers for information and compliance or technical assistance inquiries received by the agency regarding the nondiscrimination and affirmative action regulations OFCCP enforces will not trigger a compliance evaluation.
Employment Resource Referral Directory (ERRD)
Click here: http://www.dol-esa.gov/errd/index.html (or cut/paste)
Instructions for Implementing the Employment Resource Referral Directory
Introduction
The Office of Federal Contract Compliance Programs (OFCCP) has developed an Employment Resource Referral Directory, (Directory) that lists governmental and non-governmental not-for-profit organizations as references to assist hiring of qualified applicants by contractors. This linkage directory will enhance access to various programs that assist in providing job referral services to veterans, individuals with disabilities, women and minority groups. The purpose is to facilitate contractor compliance, increase the usefulness of resource organizations to the contractor community, assist workers in seeking referral organizations and reinforce linkages between contractors and job seekers.
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OFCCP Posts Latest Settlement Related to Alleged Hiring Discrmination...against non-minority males
April 2013
Check out the OFCCP Press Release identifying their settlement related to alleged hiring discrimination. While most settlements in hiring are related to women or minorities being blocked from entry-level jobs, the April 25, 2013 Press Release has identified males as the victims in a case against Goodwill Industries hiring practices in their donation centers in southern California. This settlement should serve as a reminder that while cases of females and minorities being the victims of hiring discrimination are still the most common, cases where males and whites are identified as victims can still occur.
Contractors,remember to review hiring ratios (Impact Ratio Analysis) comparing all race/ethnicity and genders to ensure that there is not a significant gap pointing in either direction...especially in non-trditional jobs.
Check out the entire Press Release:
http://www.dol.gov/opa/media/press/ofccp/OFCCP20130706.htm
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Workplace Scent Allergies and the ADA
Consider these statistics re: allergies and asthma in the US:
60 million in the US suffer from either asthma or allergies, or both
It is estimated 50 million are allergic to nuts, perfume, pollen, dust, dander, foods, drugs, latex, insects, and other items commonly found in the workplace
Nearly 20 million Americans have asthma -- three times as many as 25 years ago
With scent allergies and asthma impacting a large portion of the workforce, you can easily expect there may be some employment issues relating to accommodating individuals with these conditions.
The ADA regulations make it easier for employees to file disability claims for allergies and other scent-related conditions. A Michigan court awarded a Detroit planning department employee $100,000 when she claimed a coworker’s strong fragrance prohibited her from working.
In addition to the award, the city will also have to post notices in other buildings, asking employees not to wear scents to work.
Be aware these individuals with allergies would typically be viewed as individuals with disabilities. Look at each case individually and make every good faith effort to make reasonable accommodations, as necessary.
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HEALTH CARE PROVIDERS: 2010 - 2011 Updates
SHOULD YOU HAVE AN AFFIRMATIVE ACTION PROGRAM (AAP)?
OFCCP Issues Guidance for Health Care Providers and Insurers to Assess Whether They Are Subject to OFCCP Requirements
Go to OFCCP website for more detailed information:
http://www.dol.gov/ofccp/
BOTTOM LINE:
If an employer has contracts of subcontracts with the federal government, most likely that employer will be covered. Examples of health facilities covered could be those that provide HMO plans for government employees and beneficiaries, direct contracts for providing service to TRICARE, Medicare’s Advantage Plan (Part C), FEHBP, and Prescription (Part D) program.
Direct federal contracts for provision of health insurance to government employees and beneficiaries that involve the fee-for-service and PPO plans place the employer in the contractor category
Contracts with health care plans or employers providing the desired managed care program will also land an employer in the contractor category
Contracts involving provisions of administrative support, claims and data processing, customer service, medical savings plans/flexible spending plans, medical supplies, etc. will place an employer as a federal contractor or subcontractor
What will NOT place an employer in the federal contractor/subcontractor category:
Medicare Parts A and B are Federal financial assistance programs providing medical and hospital insurance to Medicare beneficiaries (the reimbursed health care provider is considered a recipient of Federal financial assistance and therefore not considered a contractor)
Receivers of grants and federal financial assistance awards are not contractors:
Reimbursement to a health care provider from an insurer. The Directive is quoted, “Because the prime contract is an insurance contract solely for the provision of health insurance to Federal Program members and beneficiaries, the payment of fees directly to health care providers is neither necessary to the performance of the prime contract, nor the fulfillment of an element of the prime contract.”
On December 16, 2010, OFCCP Director Shiu signed Management Directive 293 to provide “comprehensive guidance for assessing when health care providers and insurers are federal contractors and subcontractors based on their relationship with a Federal health care program or participants in a Federal health care program.” The new directive is meant to clarify subject medical providers and hospitals that fall within OFCCP’s jurisdiction.
OFCCP sets out its position that contractual arrangements under Medicare Part C (Medicare Advantage) and Medicare Part D (prescription drug plans) will impose OFCCP jurisdiction, in addition to its previously-articulated position that contractual arrangements with the Federal Employees Health Benefit Program (FEHBP) and TRICARE already impose jurisdiction.
OFCCP reiterates the position that arrangements to receive reimbursement under Medicare Parts A (medical insurance) and B (hospital insurance) do not subject a health care provider to OFCCP jurisdiction. Also arrangements that include medical providers getting reimbursed from an insurer such as Blue Cross or Blue Shield also do not subject the provider to OFCCP Executive Order 11246 and other related requirements.
Hospitals, medical providers, health plans, pharmaceutical companies, etc. are encouraged to gather documentation of their contractual and sub-contractual relationships to the federal government or TRICARE to determine if they are covered as a federal contractor or subcontractor. The requirements of the OFCCP are vast and most cannot be accomplished within the 30 day timeframe provided by OFCCP before a desk audit is conducted (120 days from the time a new contract is signed, the AAP should be in place).
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GINA Title II Regulations Update:
The final regulations for Title II of the Genetic Information Nondiscrimination Act (GINA) became effective on January 10, 2011. Among other provisions, the regulations include model language that employers are encouraged to use when lawfully requesting medical information from an employee, physician or other third party.
See http://www.eeoc.gov/laws/types/genetic.cfm
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I-9 Update: More than 500 businesses received notices from the U.S. Immigration and Customs Enforcement (ICE) that their officers would be inspecting the businesses for proper I-9 employment verification. Those employers will have three business day to prepare for the review of their documents.
Supposedly, these employers were chosen because of suspected hiring of illegal aliens. Fines for noncompliance range from $110 to $1100 per form. Higher fines apply for knowing employment of unauthorized workers. Employers who didn’t receive notice of inspection with this group should still perform an self-audit of their I-9 compliance. Call us with any questions: 812-284-2993
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I-9 and the OFCCP
As of November 2010, OFCCP staff will discontinue the practice of inspecting the I-9 forms of contractors during the onsite phase of a compliance evaluation. This is good to hear, given the fact that little was accomplished through this process. OFCCP Compliance Officers are not Immigration experts and most resented this additional responsibility during on-site audits. .
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OFCCP Policy Update: ADA Compliance of Online Application System
November 2010: All compliance evaluations shall include a review of the contractor's online application systems to ensure that the contractor is providing equal opportunity to qualified individuals with disabilities and disabled veterans. The review should include whether the contractor is providing reasonable accommodation, when requested, unless such accommodation would cause an undue hardship. In this directive, the term "online system" shall include, but not be limited to, all electronic or web-based systems that the contractor uses in all of its personnel activities.
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September 30, 2010
EEOC Claims Obesity is a Disability Under ADAAA
The EEOC now claims obesity can be a disability under the Americans with Disabilities Act Amendments Act (ADAAA). Until now, courts have routinely rejected general obesity as a "disability" under the ADA and Rehabilitation Act, unless the obesity included medical complications (and those complications were used as the basis for the discrimination).
The EEOC filed suit recently, claiming that an employer discriminatorily fired an employee because of obesity. The EEOC claims that President George W. Bush authorized the ADA Amendments Act in 2008, allowing the law to have a much lower threshold for what constitutes a disability. The EEOC claims that basic obesity, without any other underlying condition, sufficiently impacts the life activities of bending, walking, digestion, cell growth, etc., to qualify as a disability or perceived disability.
The case, as indicated on the EEOC web site: http://www.eeoc.gov/eeoc/newsroom/release/9-30-10u.cfm
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EEOC Sues Resources for Human Development, Inc. for Disability Discrimination
The U.S. Equal Employment Opportunity Commission (EEOC) has filed suit against Resources for Human Development, Inc. (RHD), for firing an employee because of her obesity, in violation of the Americans with Disabilities Act (ADA), the agency announced today. The case arose from the charge of a former RHD employee, Lisa Harrison, who claimed that RHD fired her from a New Orleans facility because of her disability.
According to the EEOC’s suit (No. 2:10-cv-03322 in U.S. District Court for the Eastern District of Louisiana), Harrison began working for RHD in 1999, as a Prevention / Intervention Specialist. Harrison worked with young children of mothers undergoing treatment for addiction. RHD fired Harrison in September of 2007 because of her severe obesity, the suit alleges. Harrison had worked for RHD at a location operating under the name of Family House of Louisiana, in Terrytown, La., a suburb of New Orleans. The EEOC alleges that, as a result of her obesity, RHD perceived Harrison as being substantially limited in a number of major life activities, including walking. Harrison was able, according to the lawsuit, to perform all of the essential functions of her position. Before the EEOC filed suit, Harrison died. Her private interests will be represented in the lawsuit by her estate.
EEOC v. Resources for Human Development (E.D. LA.2010).
Bottom Line: While obesity or being overweight has not specifically been determined to constitute a disability, the the resulting medical limitations the obesity may create could place the employee in the category of being covered by the ADA. Do not discriminate against an employee if he/she is obese or overweight. If the employee can perform the essential functions of the job, with or without an accommodation, an employer cannot remove them from the position. Contact us with further questions.
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Religion and Age Biases Rising
Negative stereotypes and attitudes toward Muslims should raise a red flag for employers. They should be on alert in their workplaces for any discriminatory actions toward that particular group. The EEOC statistics on claims of bias toward Muslims in the workplace revealed 1,490 in 2009, compared to 697 in 2004.
Tips to keep discrimination out of your workplace:
* An employer cannot forbid Muslim employees from wearing head scarves because customers aren’t accustomed to seeing people dressed that way. However, if a head scarf presents a safety issue on a production line, the employer can require that the employee not wear the article of clothing. This is true for any type of clothing.
* Ensure employees and supervisors fully understand their obligations for ensuring non-discrimination in the workplace - provide proper training before harassment begins.
Age discrimination is another basis on the rise. As the Baby Boomers continue to work longer, we have more generations in the workplace, standing and working side-by-side. Some employers begin "pushing" older workers out the door. The Baby Boomers, well educated in their civil rights, will be stepping up to the EEOC table if they feel they are being harassed or discriminated against. Best method of circumventing this issue...educate.
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Many Federal Contractors Now Required to Report First-Tier Subcontract Awards In Excess of $25,000
July 7, 2010
The Department of Defense, General Services Administration, and National Aeronautics and Space Administration have issued an interim rule requiring federal contractors to make certain disclosures regarding first-tier subcontract awards. The rule requires contractors to report first-tier subcontract awards expected to be $25,000 or more and for certain larger government contractors - to report the executive compensation of the top five executives of both the contractor and subcontractor.
A "first-tier" subcontract is one made directly with the company contracting directly with the federal government. The information will then be made available to the public.
The reporting requirements do not apply to classified contracts, contracts with individuals, or contractors and subcontractors whose annual gross income is less than $300,000. In addition, the executive compensation disclosures are only required of contractors and subcontractors if: (1) the entity receives at least $25 million in annual gross revenue from federal contracts, loans, grants, and cooperative agreements; (2) the annual gross revenue from the federal contracts, loans, grants, and cooperative agreements makes up more than 80 percent of the entity's annual gross revenue; and (3) the entity does not already publicly report the compensation of its senior executives.
The interim rule takes effect immediately; however, its reporting requirements will be phased in based upon the size of the prime contract at issue. Until Sept. 30, 2010, any new subcontract must be reported if the prime contract award was $20 million or more. From Oct. 1, 2010, to Feb. 28, 2011, the threshold will be lowered to prime contracts of $550,000 or more. On March 1, 2011, the threshold will be further reduced to prime contracts of $25,000 or more.
Employers with government contracts should determine whether the interim rule applies to them, and the best methods for compliance.
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HEALTH CARE PROVIDERS: See article below most current:
The EEOC increased monetary benefits in 2009 ($294.2 MILLION), with less complaints filed (93,277 complaints), predominately filed under the bases: race, sex, and retaliation. Are you prepared to deal with the governement if a complaint is filed? Contact us today.
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If the decision makers in your company are not aware of updates in EEO and related laws, such as discrimination against caregivers, EEO training should be incorporated into your annual agenda.
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DOL Online Tool To Help You Understand Disability Nondiscrimination Laws 5/15/2010
The U.S. Department of Labor (DOL) is providing an internet tool to help employers ensure their employment policies and practices do not discriminate against qualified individuals with disabilities.
Go to: Disability Nondiscrimination Law Advisor (http://www.dol.gov/elaws/odep.htm)
Answer a few relevant questions about the nature of their organization to begin the process. Based on responses, the advisor generates a customized list of federal disability nondiscrimination laws that most likely apply, along with information about responsibilities under each applicable law.
The information includes a “Guide on Employing People with Disabilities” that outlines resources available to assist employers with compliance of disability nondiscrimination laws.
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Breaks for Nursing Moms Now Required
Under the Patient Protection and Affordable Care Act, employers covered by the Fair Labor Standards Act will be required to furnish "rea
sonable" breaks to nursing mothers to express milk for their infants. Employers must also provide a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public, which may be used by an employee to express breast milk.
Specifically, employers are required to provide nursing mothers with reasonable breaks any time that they need to express milk for up to one year after their child's birth. The breaks need not be paid if they occur during working time.
There is an exception for some smaller employers. Employers with 50 or fewer employees need not comply with the provision if its requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business.
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Costs of Family Responsibilities Discrimination Increasing for Employers
3/9/2010 By Joanne Deschenaux
SHRM Publication
Litigation claiming bias against workers who care for children or aging parents has increased 400 percent in the past decade, and the average verdict in a family responsibilities discrimination (FRD) case now is more than $500,000, according to a report released by the Center for WorkLife Law in February 2010.
The report, Family Responsibilities Discrimination: Litigation Update 2010, is based on an analysis of over 2,100 lawsuits, most (67 percent) relating to pregnancy and maternity leave. Other cases claimed discrimination related to elder care (9.6 percent), care for sick children (7 percent), care for ill spouses (4 percent), time off for newborn care by fathers or adoptive parents (3 percent), and care for a family member who has a disability (2.4 percent). Most lawsuits (88 percent) were filed by women; 12 percent were filed by men.
Lawsuits have been brought against large and small employers and in every state and every industry, the report notes. Employees prevail in about 50 percent of the cases—far more often than in other types of employment cases.
Employer actions that have resulted in verdicts include:
Selecting an employee for layoff because she was pregnant.
Denying a promotion to a female employee because she was the mother of young children.
Firing a male employee who was on approved leave to care for a foster child.
Instituting production quotas that could not be met by a male employee on intermittent leave to care for his seriously ill parents, and then firing him for not meeting the quotas.
“Laws are broken when supervisors make assumptions about the value of employees based on their family caregiving responsibilities and then take negative personnel actions, regardless of the employees’ actual performance,” said the report’s author, Cynthia Thomas Calvert, deputy director of WorkLife Law.
“Fortunately, employers can protect themselves against these lawsuits,” Calvert continued. “A good prevention program includes training supervisors so they can recognize the assumptions and be prepared to react in a more appropriate way.”
Laws Used in Family Responsibilities Cases
No federal statute expressly prohibits discrimination based on family responsibilities. As a result, most caregiver cases are brought under federal and state antidiscrimination and leave laws.
For example, a mother who is denied a promotion because she has young children may sue for sex discrimination under federal law, Title VII and/or her state’s counterpart. A man who is fired for taking time off to care for his sick mother may sue under the federal Family and Medical Leave Act (FMLA) and/or his state’s counterpart. An employee also may include common law claims such as wrongful discharge, intentional infliction of emotional distress, defamation and breach of contract.
Many of the cases studied for the report involved the use of the federal sex discrimination law, Title VII of the Civil Rights Act of 1964 and the federal FMLA.
However, the report notes, several states and 63 local jurisdictions have passed legislation that addresses family responsibilities discrimination in employment. Most of these laws expressly prohibit discrimination against employees based on familial or parental status or family responsibilities. These laws “change the litigation landscape,” the report says, because employees in these jurisdictions do not need to show that adverse actions taken against them are based on gender or tied to the taking of protected leave. They can prevail, for example, by showing that as caregivers, they were treated differently from employees who did not have caregiving obligations, that a hostile work environment for caregivers existed or that they were denied a job, a promotion, or certain benefits or conditions of employment based on stereotypes of caregivers.
The report has important implications for employers, Calvert says. “Their litigation risks are rising, as well as the costs associated with litigation. Perhaps more importantly, the many human stories behind the research show that workplace structures and expectations may be unrealistic in light of the changing characteristics of the workforce.
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Detroit Adopts Scent Policy to Settle ADA Claim
3/17/2010
By Allen Smith
SHRM Publication
The city of Detroit will encourage its employees to refrain from wearing perfumes, deodorants and cologne as part of a settlement of an Americans with Disabilities Act (ADA) claim, a policy change that Ann Curry Thompson, an attorney with Kelman Loria PLLC in Detroit, thinks other employers should adopt.
Detroit agreed to pay Susan McBride, a senior city planner whom Thompson represented, $100,000, and to change its ADA handbook and training, in addition to posting notices about the new policy.
Chemical Sensitivity Leads to Claim
McBride had sued the city under the ADA after it allegedly refused to accommodate her multiple chemical sensitivity.
In July 2006, a co-worker who wore strong perfume transferred into McBride’s department. The co-worker worked near McBride and used a room deodorizer. Shortly after the co-worker arrived at her work station, the smell of perfume and deodorizer overcame McBride, causing her to leave work.
McBride later asked the co-worker to unplug the room deodorizer and refrain from wearing perfume. The co-worker unplugged the deodorizer but refused to stop wearing perfume. McBride complained to her supervisor and requested that the city implement and enforce a “no-scent policy” to accommodate her disability. But the city allegedly refused her request and did not offer an alternative accommodation.
As a result of her exposure to the perfume, McBride missed much time off from work and received extensive medical treatment. She suspended fertility treatments because the fertility drugs were contraindicated medically with the medications she needed as a result of her exposure at work.
Depending on the level of exposure, McBride’s symptoms might remain after the workday ends and sometimes lasted until the next morning. The symptoms had a compounding effect, as each day during the week she felt worse and she could “barely function” by the end of the week. Her symptoms subsided until the next Monday, when the cycle repeated. McBride said that only a break of 10 days from work left her feeling completely well.
McBride used Family and Medical Leave Act (FMLA) leave and sick leave days frequently because of her reactions. Although there were discussions about relocating her workstation or her co-workers, neither employee was relocated. McBride sought accommodation through a union grievance request that her FMLA and/or sick leave time be recredited as an accommodation, but the city argued that it already provided accommodation in the form of granting McBride FMLA leave.
McBride sued, and the U.S. District Court for the Eastern District of Michigan on Nov. 28, 2007, denied the city’s motion for summary judgment (McBride v. City of Detroit, No. 07-12794). A year later, the court granted in part another motion by the city for summary judgment, but also denied it in part. The court concluded that McBride may proceed with her ADA claim based on her having a disability that substantially limited the major life activity of breathing, but it dismissed her claim of disability based on other major life activities that allegedly were substantially limited, such as speaking, interacting with others and reproduction.
Nonmandatory Policy
In the 2008 decision, the court rejected the city’s argument that McBride’s request for a scent-free policy was an unreasonable accommodation because it would require an undue hardship. The court noted that McBride arguably did not seek a scent-free policy but instead “an opportunity to work with management and HR to help come up with something that would work to try to get some relief.” The court noted that McBride provided the city with a copy of policy enacted by the Michigan Department of Information Technology as an example of the type of policy she was seeking.
Although the policy was worded as a “no-scent policy,” it provided that “mild scents may be worn in moderation, but strong or offensive scents that become detrimental to the work unit will not be tolerated.”
The court determined that “this type of policy does not require a completely scent-free environment nor does it address the public or those outside a department.” It added that the city did not explain why the policy would create an undue hardship, why it could not have ordered the co-worker to stop wearing “offensive perfumes or oils” or why such a directive would be an unreasonable accommodation.
It noted that the record contained conflicting assertions about why neither worker was relocated. The parties disputed whether either move was possible or feasible and whether the moves were pursued. The court observed that additional time off after the exhaustion of FMLA leave may be a reasonable accommodation.
In addition, it said that the city’s HR department might not have engaged in a proper interactive process to identify a reasonable accommodation, noting that city employees allegedly said such things as “If she’s allergic to perfumes and colognes then she has the problem, not the employer.”
In settling the claim on Feb. 12, 2010, the city agreed to add a section to its employee handbook, stating that “our goal is to be sensitive to employees with perfume and chemical sensitivities. Employees who are sensitive to perfumes and chemicals may suffer potentially serious health consequences. In order to accommodate employees who are medically sensitive to the chemicals in scented products, the city of Detroit requests that you refrain from wearing scented products, including but not limited to colognes, after-shave lotions, perfumes, deodorants, body/face lotions, hair sprays or similar products. The city of Detroit also asks you to refrain the use of scented candles, perfume samples from magazines, spray or solid air fresheners, room deodorizers, plug-in wall air fresheners, cleaning compounds or similar products. Our employees with medical chemical sensitivities thank you for your cooperation.”
In a March 16, 2010, interview, Thompson said there was very little precedent in cases involving employees with multiple chemical sensitivities who request scent-free workplaces. In her jurisdiction, she found just one unpublished case on the issue, which found that a mandatory no-scent policy was not reasonable as a matter of law. Thompson called the holding “absurd” and something that she would challenge, but she noted that the policy McBride sought was not mandatory.
HR’s Role
Thompson said that HR thought McBride’s accommodation request was “silly, not serious” and responded that there was a constitutional right to wear perfume. HR thought the request either was “laughable or not anything anyone could do anything about,” she added.
But Thompson said HR can and should take the lead in accommodating people with multiple chemical sensitivities, remarking that an employer “has an obligation to deal with a situation like this when it is presented.” She added that her law firm has a no-scent policy and said the policy has worked fine.
RESPONSE: As our environment continues to change, we may see more and more ADA cases like this. If the city had taken the complainant's requests for an accommodation seriously, they would never have gotten to this expensive and all encompassing point. Each case should be seriously reviewed on an individual basis. I find it interesting that the policy includes all deordorants - it would have been more effective to have specifically stated, "scented deordorants."
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FMLA Military Family Leave Benefits Expanded
While this is not specifically EEOC or OFCCP related, we believe you will want to know about these changes to the FMLA...as it relates to the military.
The National Defense Authorization Act of 2010 (NDAA 2010) expands family and medical leave rights of military personnel and their families.
President Bush signed the National Defense Authorization Act for fiscal year 2008 (NDAA 2008), to amend the Family and Medical Leave Act (FMLA. This amendment gives eligible employees the right to take up to 12 weeks of unpaid leave in the applicable 12-month period due to a qualifying need resulting from the call to service of a member of the National Guard or the Reserves. The Act also amends the FMLA to provide for up to 26 weeks of unpaid leave in a single 12-month period to care for an injured family member who is a current member of the Armed Forces (this includes members of the National Guard or Reserves).
President Obama signed into law NDAA 2010 in October 2009, which expands the scope of who may take time off under the 2008 provisions. The new law allows for the following:
Family members of active duty members of the regular Armed Forces to use qualifying exigency leave when the service member is deployed to a foreign country. The 2008 law only applied to family members of the National Guard and Reserves who were called to active duty in support of a contingency operation.
Federal employees to use qualifying exigency leave. Only certain federal employees were allowed to use it under the 2008 law.
Military caregiver leave to be taken for veterans who served within 5 years of the date of medical treatment, recuperation, or therapy. The 2008 law only applied to service members who were currently in the military.
Military care giver leave for existing or preexisting injuries that are aggravated in the line of duty during active duty service. The current regulations deny coverage for these injuries.
The expansions took effect when the President signed the law. Proposed regulations from the Department of Labor and the Office of Personnel Management, which will be drafted in consultation with the Secretaries of Defense and Veterans Affairs, should be issued soon.
Given these important changes, employers should review and modify their FMLA policies to ensure compliance with NDAA 2010.
http://www.dol.gov/esa/whd/fmla/index.htm
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HOSPITALS (Health Care Providers) RULED TO BE FEDERAL
SUBCONTRACTORS ~ REQUIRED TO PREPARE AND
MAINTAIN AAP
In the past, Office of Federal Contract Compliance Programs (OFCCP) interpreted Executive Order 11246 to exclude health institutions such as hospitals, nursing homes, etc., from requirements to create and maintain an Affirmative Action Plan (AAP), if their only federal money came from accepting Medicare and Medicaid payments. The directive detailing this interpretation was ADM 93-1/JUR, 12-16-93.However, health institutions could be considered prime contractors for the federal government if they provided contract medical services to active US military or veterans.
This guidance, based upon DOL Administrative Review Board (ARB) ruling, OFCCP v. University of Pittsburg Medical Center (UPMC) Braddock (DOL ARB, No. 08-048, May 29, 2009), has changed and as of June 2009 health care facilities may now be considered as sub-contractors.
Specifically in the Braddock case, several Pittsburgh-area hospitals received payments from a health maintenance organization (HMO) for providing medical services to federal government employees; however, the written contract between the hospitals and the HMO did not include requirements that the hospitals abide by Affirmative Action (AA) legal requirements.
Along came OFCCP with a scheduling letter (notification of an upcoming Affirmative Action Plan audit) for one of the hospitals. The hospital argued jurisdiction and OFCCP filed an administrative complaint against the hospital. Ultimately, an Administrative Law Judge (ALJ) ruled for OFCCP. In turn, the hospitals filed for further review by the ARB. The ARB’s decision was not positive for the hospitals.
The ARB’s conclusion stated,“The Court also characterized an HMO as a health care delivery system defined by the providing of medical benefits and the assumption of financial risk in providing those benefits. Here, there is ample evidence that the Defendents were operating primary as health care delivery providers and not strictly a insurance providers. We therefore agree with the ALJ’s finding that our Bridgeport decision is applicable and that the Defendents were subcontractors subject to the equal opportunity provisions of the three laws.” The three laws referenced: Executive Order No. 11246, the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, Section 503 of the Rehabilitation Act of 1973, and their implementing regulations.”
The failure to include the mandatory clauses in the agreements with the hospital does not excuse them from compliance.
http://www.oalj.dol.gov/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/OFC/
08_048.OFCP.HTM
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E-VERIFY REQUIREMENTS
Regulations Requiring E-Verify for Many Federal Contractors Effective (most likely)
August 26, 2009
The U.S. District Court for the District of Maryland issued its decision in Chamber of Commerce of the United States of America v. Janet Napolitano, No. 8:08-cv-03444-AW, upholding the legality of Executive Order 13464 and its implementing regulation (requiring many federal contractors and subcontractors to use E-Verify). The rule, administered by the Department of Homeland Security (DHS), is scheduled to take effect Sept. 8, 2009.
E-Verify is the government's internet-based system by which employers will be required to check the eligibility of newly hired employees. The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which provides the statutory basis for E-Verify, made the system voluntary; however, this decision makes it mandatory for most federal contractors.
To prepare for compliance and implementation of the amended Federal Acquisition Regulations (FAR), employers should analyze potential federal contracts to determine jurisdiction requiring the use of E-Verify. Applicable federal contractors can review the government’s guidance through: www.dhs.gov/e-verify.
As previous OFCCP Sr. Compliance Officers (who used to audit I-9 files), EEO GUIDANCE and EEO LOGIC strongly suggest all federal contractors implement a compliance policy and program and assign a professional in the HR, EEO, or Legal Department to monitor and enforce the Immigration and E-Verify program for your facility.
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CHANGES TO EEO REQUIRED POSTERS (Displayed in your workplace):
For copies of the new poster, go to: http://www.dol.gov/esa/ofccp/regs/compliance/posters/ofccpost.htm_
Statistics and EEO:
Claims of discrimination are classified as“disparate treatment” or “disparate impact.” Disparate treatment claims depend upon evidence that an employer treated one individual or group of individuals differently than another group and consideration of the protected group (race, color, religion, sex/gender, national origin, age, or disability) were considered as part of the personnel decision. Disparate impact claims reveal that an otherwise neutral policy adversely impacts a set of employees in one of the protected groups. Evidence of discriminatory intent is not necessary.
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LET US REITERATE: DO NOT RETALIATE AGAINST EEO COMPLAINANTS
Supreme Court Expands Protection from Discriminatory Retaliation – January 2009
Workers who cooperate in their employer’s internal investigation of discrimination are protected from unlawful retaliation, the U.S. Supreme Court has decided.
In the Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee (No. 06-1595), ruling, the Supreme Court unanimously reversed two earlier decisions that limited coverage to employees who file EEO complaints (verbal or written) and those who are included in the investigation, under the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964.
What does this mean? If an employee informs an employer of an EEO (Title VII) related issue or concern (complaint), that employee is protected from EEO retaliation. Also, anyone who is involved in the case as a witness would also be covered. Be sure your supervisors and managers are aware of this ruling, along with their many EEO requirements.
Remember, discrimination and retaliation are two separate legal claims. An employee who is unable to prove a claim of discrimination may still be able to prove retaliation by the employer. Supervisors and managers should be trained to understand the type of inappropriate activity protected under EEO laws. CONTACT US re: “Never Boring” EEO Training for Supervisors and Managers.
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OFCCP annual number of financial remedies for more American workers breaks records
OFCCP UPDATES: March 2009: President Obama and his new administration staff have indicated they plan to increase funding for the Office of Federal Contract Compliance Programs (OFCCP).
OFCCP may be in increasing their enforcement staff very soon. Specifically, OFCCP will be hiring new staff with specialized expertise (such as statisticians) to continue pushing their enforcement of statistical or systemic discrimination.
In fiscal year (FY) 2008, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) won a record $67,510,982 in back pay, salary and benefits for an unprecedented 24,508 American workers who had been subjected to unlawful employment discrimination.
Ninety-nine percent of dollars were collected in cases of systemic discrimination — those involving a significant number of workers or applicants subjected to discrimination because of an unlawful employment practice or policy. The more than $67.5 million reflects a 133 percent increase over financial remedies obtained in FY 2001.
The last eight years of OFCCP enforcement data show a 14 percent increase in the total number of compliance reviews completed versus a similar period in the prior administration. More importantly, OFCCP's more strategic approach resulted in a 92 percent increase in the number of job applicants and employees (113,630) who financially benefited from OFCCP investigations and over $50 million in additional back pay salary and benefits versus the prior administration.
BOTTOM LINE: Litigation is expensive – OFCCP appears to be on a roll - don’t wait until it is too late to know if your statistics/actions reveal discrimination.
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This is an excellent article from the law firm of Greenebaum Doll & McDonald PLLC (www.greenebaum.com) - we thought you should understand how having a union can change the outcome of an issue such as inappropriate language in the workplace.. We also see that this issue of inappropriate language (cursing) in the workplace could have a different outcome from an EEO standpoint. In some cases (depending on who was involved, the environment, etc.), cursing could be creating an illegal hostile working environment.
It's okay to discipline employees for using profanity . . . isn't it?
Not necessarily.
A recent decision of the National Labor Relations Board (the "Board") serves as a convenient reminder that employers must exercise restraint when dealing with employees who are engaged in activity protected by the National Labor Relations Act ("NLRA"). In this case, the Board determined that an employer violated the NLRA by disciplining a union steward for using profanity toward a supervisor during a disciplinary meeting. (Alcoa Inc., N.L.R.B. No. 141, 8/29/08)
An Alcoa employee (exercising his Weingarten rights) asked his union steward, Mark Hewitt, to represent him during a disciplinary meeting with management. During that meeting, Hewitt pointed at a supervisor, used a four-letter expletive to describe the supervisor, and expressed his view that the disciplinary action against the employee was unfair. Hewitt was promptly suspended for insubordination and abusive and offensive behavior toward the supervisor. The union filed an unfair labor practice charge with the Board, alleging that Alcoa had violated Hewitt's right to engage in union activity protected by the NLRA.
The Board agreed that Alcoa had violated the NLRA by suspending Hewitt, because Hewitt was acting as a union representative at the time of the incident. In determining whether an employee's conduct (such as Hewitt's outburst) is protected by the NLRA, the Board considers: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee's conduct; and (4) whether the conduct was in any way provoked by an employer's unfair labor practice. Although Hewitt's outburst was not provoked by an unfair labor practice, the Board found that the other factors weighed in Hewitt's favor. Specifically, the Board noted that Hewitt's use of profanity occurred in the course of discharging his representative duties.
An employer normally would be free to discipline or discharge an employee for this or similar conduct. The presence of a union in the workplace changes things, especially where otherwise unacceptable conduct occurs in the course of protected activity. As this case indicates, the NLRA cloaks union representatives with protections that can trump normal disciplinary rules. Conduct that may normally warrant disciplinary action, such as the use of profanity, may be protected if occurs in the course of a union representative's discharge of his or her representative duties. There are, of course, limits to what is protected (e.g ., Hewitt would not be protected if he had punched the supervisor), but the limits are poorly defined and highly fact sensitive.
Unions are well aware of the NLRA's protections, and they typically ensure that employees who are selected to serve as union representatives also know what they can "get away with." Employers who don't know and follow the law are at a disadvantage. This case should remind employers to resist the temptation to rush to discipline an employee acting as a union representative for what would be legitimate reasons in other circumstances.
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OFCCP Implements New Veteran Employment Program – Hire Military Veterans and Possibly Draw A Three Year Exemption from OFCCP Compliance Reviews
OFCCP has created a program to encourage the employment of military veterans by formally recognizing federal contractors and subcontractors that have undertaken successful efforts to employ covered veterans. The program, Good-Faith Initiative for Veterans Employment (G-FIVE Initiative), provides a three year exemption from OFCCP compliance reviews for those contractor or subcontractor establishments that receive a G-FIVE Rating (unless there is reason for OFCCP to believe discrimination exists).
Contact us to find out how to qualify or to obtain assistance with this initiative.
OFCCP Web site: http://www.dol.gov/esa/ofccp/regs/compliance/directives/dir282.htm
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Updates RE: ADA (that you need to know)
On September 25, 2008, President George W. Bush signed into law the ADA Amendments Act of 2008. As a result of this new legislation, which will go into effect on January 1, 2009, minor changes have been made to this document.
EEOC’s web site includes this synopsis:
The Act retains the ADA's basic definition of "disability" as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it changes the way that these statutory terms should be interpreted in several ways. Most significantly, the Act:
directs EEOC to revise that portion of its regulations defining the term "substantially limits";
expands the definition of "major life activities" by including two non-exhaustive lists:
the first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating);
the second list includes major bodily functions (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions");
states that mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an individual has a disability;
clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
provides that an individual subjected to an action prohibited by the ADA (e.g., failure to hire) because of an actual or perceived impairment will meet the "regarded as" definition of disability, unless the impairment is transitory and minor;
provides that individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation; and
emphasizes that the definition of "disability" should be interpreted broadly.
EEOC will be evaluating the impact of these changes on its enforcement guidances and other publications addressing the ADA.
There have been updates also to the way performance standards are conducted to ensure equality. For more information regarding the Americans with Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities
http://www.eeoc.gov/facts/performance-conduct.html#fn7
The OFCCP recently released directives on accessibility of online job application systems, specifically:
If you use an on-line job application process, be sure the top of the first page contains the NAME and TELEPHONE NUMBER (and, email address) for the individual who can receive and act on requests for accommodation in the application process.
Individuals must be able to read all graphics on a web site or the site does not function properly with adaptive technology (Zooming in on graphics and text to make them more readable, or converting graphics and text to voice for the sight impaired),
Individuals must have appropriate access to the equipment - applicants must be able to get a wheel chair/scooter up to a Kiosk application facility so the keyboard can be used properly. Ensure individuals know who to contact for guidance or to report problems.
The notice should also indicate an alternate method of application if the web site is the only normal avenue and it is unusable for some reason by an individual applicant with a disability.
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Jurisdiction and AUDITS: Things You Should Know:
During the second week of October, OFCCP indicated they sent out approximately 2,500 scheduling letters for desk audits. In March, 2009, OFCCP will send out another 5,000 scheduling letters. Early FY 2009, OFCCP will make it policy to conduct an on-site review of one in every 50 desk audits. OFCCP has been doing random on-site audits for several years; however, have not necessarily followed a set number. This is being done to keep contractors honest with the statistics that are submitted. They do not need to find discriminatory indicators in order to select the contractor for the on-site review.
For the contractors who are one of the 7,500 audits who are randomly selected for the on-site visit, OFCCP has not specifically stated the details of the on-site review process. Expect at the very least:
Interviews with employees and management staff
Review of I-9 Forms
Facility Inspection (policies, posters, and notices posted, proper job groupings, etc.)
Data requests on compensation programs and details on compensation decisions (if statistical indications of discrimination have been found)
Data requests on personnel activity where standard deviations over 2 have been identified
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OFCCP SHOWS THEY STILL HAVE ENFORCEMENT MUSCLE
Record Breaking Financial Remedies in FY 07
In Fiscal Year 2007, OFCCP enforcement efforts resulted in a record $51,680,950 (that would be MILLION) in back-pay and annualized salary and benefits for 22,251 American workers (another record number). These 22,251 workers were subjected to unlawful employment discrimination. The majority of those recipients (98%) benefited from the OFCCP’s efforts through cases of systemic discrimination / class discrimination based upon an unlawful personnel policy or practice.
Take note: In addition to the fact that systemic discrimination cases are the bulk of the OFCCP’s discrimination findings, OFCCP also asserts that the huge (and continued) increase in findings and settlements is directly tied to the way in which contractors are selected for audit (the process of who passes the desk audit and who gets a friendly visit on-site). Not only does this method ensure more employers are audited, it ensures they are focusing their time and energy on those employers who have statistical RED FLAGS informing them of potential problems. OFCCP also attributes much of their success on their new method to identify first tier contractors (Contracts First project). They are going to continue finding federal contractors who have been quietly hiding behind the EEO-1 form).
Do you know what your personnel activity statistics would tell the federal government? If not, you are open to be included in the statistics for next year. Contact our offices today to find out how to ensure your personnel policies and procedures are not fodder for the OFCCP Compliance Officer looking for a systemic case.
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FEDERAL CONTRACTORS: Check out E-Verify – You may soon be required to verify immigration information through this Homeland Security program. We will keep you informed as the Executive Order goes through the approval process. In the meantime, check out E-Verify at: www.dhs.gov/E-Verify
Executive Order: Amending Executive Order 12989, as Amended
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Final Rule for Filing VETS-100A Form
May 2008
The feds (VETS) raised the contract threshold on federal contractors who are required to report activity relating to veterans (from $25K to $100K). Contractors with federal contracts of $100K or more (issued on or after December 1, 2003) are now required to file a VETS-100A, with the Veterans’ Employment and Training Service (VETS). Federal contractors who are covered by the new rule are required to begin collecting the data (May 2008) and file their first annual report on the new form September 30, 2009.
The primary change to the VETS-100 form is the revision of the reporting categories to include disabled veterans, other protected veterans, armed forces service medal veterans, and veterans recently separated from military service. Vietnam era veterans were eliminated from coverage under the VETS-100A, unless they are also included in one of the new categories.
The requirement comes after a final rule on May 19 implementing the Jobs for Veterans Act (JVA), which requires federal contractors to file annual reports on their employment of veterans who are covered under the rule. JVA amended the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA). JVA and VEVRAA require companies with federal contracts to take affirmative action in recruiting, hiring, promoting, etc., on behalf of veterans and to report employment of covered veterans annually.
Contractors with federal contracts of $25,000 or more (issued before December 1, 2003) should continue to file the original form (VETS-100). If the contractor has current contracts initiated before 12/1/2003 and also more recently issued contracts with the federal government, both forms must be filed. If a contract was issued before December 1, 2003 and it has been modified (and meets the $100K threshold), the VETS-100A should be filed.
To reiterate: New categories for veterans are:
o Disabled Veterans
o Other Protected Veterans
o Armed Forces Service Medal Veterans
o Recently Separated Veterans
For a copy of a PDF version of the Federal Register posting of this
final announcement, go to:
https://vets100.vets.dol.gov/
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EEOC ISSUES NEW GUIDELINES FOR VETERANS WITH SERVICE-
CONNECTED DISABILITIES UNDER ADA AND USERRA
The EEOC’s web site now has two sets of guidelines for employers who hire veterans with service-connected disabilities. The guidelines specify the differences between employer responsibilities under the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA).
These two federal laws provide important protections for veterans with disabilities. USERRA is enforced by the U.S. Department of Labor (DOL) and the ADA is enforced by the EEOC.
If you have veterans with disabilities in your workforce you will want to review both of these documents. One document tackles ten key questions about the issues involved. Learn: "How does USERRA differ from the ADA?" to "May an employer give preference in hiring to a veteran with a service-connected disability over other applicants?"
The second document discusses the same issues from the veteran's viewpoint. It details how to appropriately handle the disability issue when seeking employment and what protections are offered by these laws.
www.eeoc.gov/facts/veterans-disabilities.html
www.eeoc.gov/facts/veterans-disabilities-employers.html
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OFCCP UPDATES VEVRAA REGULATIONS FOR JOB LISTING
REQUIREMENT
On April 7, 2008, the Office of Federal Contract Compliance Programs
(OFCCP) published its final rule governing the regulations at 41 CFR 60-250 pertaining to the listing of job openings with state employment agencies. Until now there has been a difference in requirements between 60-250 and 60-300 which implements the Jobs for Veterans Act (JVA) of 2002.
This final rule revises the regulations implementing the nondiscrimination and affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended (VEVRAA). The regulations in part 60-250 implement the nondiscrimination and affirmative action provisions of VEVRAA prior to their amendment in 2002 by the JVA, and apply to contracts entered into before December 1, 2003. This final rule revises the mandatory job listing provision in the part 60-250 regulations to provide that listing employment openings with the state workforce agency job bank or with the local employment service delivery system where the opening occurs will satisfy the mandatory job listing requirements under the part 60-250 regulations.
Since the elimination of America's Job Bank in 2007,all job openings must be listed with the local state employment service (as in the ‘old days of OFCCP’). There are the same three exceptions provided for in these regulations: Jobs that are at the senior executive level, jobs that are going to last only 3 days or less, and jobs that will only be filled from internal sources.
The regulations covering government contracts prior to December 1, 2003, and those covering contracts following that date are now lined up.
For a copy of the final rule go to:
http://edocket.access.gpo.gov/2008/E8-7123.htm
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EVERY EMPLOYER SHOULD HAVE AN EFFECTIVE EEO COMPLAINT PROCEDURE
Employers can protect themselves from liability for harassment under Title VII by maintaining adequate complaint procedures and taking prompt remedial action in response to harassment complaints. However, the 7th Circuit EEOC v. V&J Foods Inc. the key word to winning a case is “adequate”—complaint procedures must be thorough and easy to understand.
In V&J Foods, the plaintiff, a 16-year-old girl, accused the store manager of making several unwanted sexual advances. After several complaints from the teenager and her mother to the plaintiff’s co-workers and supervisors, the store manager fired the girl. The plaintiff sued her employer for sexual harassment, but the district court dismissed the case because the plaintiff failed to follow the complaint procedure set up by the company.
On appeal, the 7th Circuit reversed the district court’s decision after finding the employer’s complaint procedure to be insufficient. The process instructed employees to report harassment to their district manager. However, the policy failed to provide contact information, and did not provide a method for employees to bypass their supervisors when they feared retaliation or when they were the perpetrators of the harassment.
Employers should review their complaint procedures to ensure they are understandable and effective. If you don’t have one, contact us, we will be happy to help.
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STATISTICS TO SHOW OFCCP IS STILL OUT AND ABOUT FINDING DISCRIMINATION, DEFICIENCIES, AND FINANCIAL SETTLEMENTS
February 2008
In Fiscal Year (FY) 2007 OFCCP posted a record amount of financial remedies for job applicants and employees who had been discriminated against by employers. They also conducted 24% more compliance evaluations of AAPs than in the previous year. OFCCP remains focused on systemic discrimination and the results have proven the strategy to be extremely effective.
FY Financial Workers Compliance
Remedies Affected Evaluations
2007 $51,681,000 22,251 4,923
2006 $51,525,000 15,273 3,975
2005 $45,156,000 14,761 2,730
Details can be found on the OFCCP web site:
http://www.dol.gov/esa/ofccp/enforc07.pdf
(use back arrow to return to this site)
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Effective for new hires after DECEMBER 26, 2007:
Employment Eligibility Verification
Purpose of Form :
All U.S. employers are responsible for completion and retention of Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. On the form, the employer must verify the employment eligibility and identity documents presented by the employee and record the document information on the Form I-9. Acceptable documents are listed on the back of the form, and detailed below under "Special Instructions."
Number of Pages : 3
Edition Date : 06/05/07
Where to File :
Do not file Form I-9 with U.S. Immigrations and Customs Enforcement (ICE) or USCIS. Form I-9 must be kept by the employer either for three years after the date of hire or for one year after employment is terminated, whichever is later. The form must be available for inspection by authorized U.S. Government officials (e.g., ICE, Department of Labor).
Filing Fee : $0.00
Special Instructions :
You should have the latest version of the free Adobe Reader to download and use the 2007 version of Form I-9.
Please note the following changes to the Form I-9 process:
· Five documents have been removed from List A of the List of Acceptable Documents:
Certificate of U.S. Citizenship (Form N-560 or N-561)
Certificate of Naturalization (Form N-550 or N-570)
Alien Registration Receipt Card (I-151)
Unexpired Reentry Permit (Form I-327)
Unexpired Refugee Travel Document (Form I-571)
· One document was added to List A of the List of Acceptable Documents:
Unexpired Employment Authorization Document (I-766)
· All Employment Authorization Documents with photographs have been consolidated as one item on List A:
I-688, I-688A, I-688B, I-766
· Instructions regarding Section 1 of the Form I-9 now indicate that the employee is not obliged to provide his or her Social Security number in Section 1 of the Form I-9, unless he or she is employed by an employer who participates in E-Verify.
· Employers may now sign and retain Forms I-9 electronically. See instructions on page 2 of the Form I-9.
Note: The Spanish version of Form I-9, available below on this page, may be filled out by employers and employees in Puerto Rico ONLY. Spanish-speaking employers and employees in the 50 states and other U.S. territories may print this for their reference, but may only complete the form in English to meet employment eligibility verification requirements.
This page can be found at http://www.uscis.gov/i-9
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EMPLOYMENT TESTS AND SELECTION PROCEDURES EEOC FACT SHEET 12/3/2007
Employers often use tests and other selection procedures to screen applicants for hire and employees for promotion. There are many different types of tests and selection procedures, including cognitive tests, personality tests, medical examinations, credit checks, and criminal background checks.
The use of tests and other selection procedures can be a very effective means of determining which applicants or employees are most qualified for a particular job. However, use of these tools can violate the federal anti-discrimination laws if an employer intentionally uses them to discriminate based on race, color, sex, national origin, religion, disability, or age (40 or older). Use of tests and other selection procedures can also violate the federal anti-discrimination laws if they disproportionately exclude people in a particular group by race, sex, or another covered basis, unless the employer can justify the test or procedure under the law.
On May 16, 2007, the EEOC held a public meeting on Employment Testing and Screening. Witnesses addressed legal issues related to the use of employment tests and other selection procedures.
Employer Best Practices for Testing and Selection
Employers should administer tests and other selection procedures without regard to race, color, national origin, sex, religion, age (40 or older), or disability.
Employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used. The test or selection procedure must be job-related and its results appropriate for the employer’s purpose. While a test vendor’s documentation supporting the validity of a test may be helpful, the employer is still responsible for ensuring that its tests are valid under UGESP.
If a selection procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. For example, if the selection procedure is a test, the employer should determine whether another test would predict job performance but not disproportionately exclude the protected group.
To ensure that a test or selection procedure remains predictive of success in a job, employers should keep abreast of changes in job requirements and should update the test specifications or selection procedures accordingly.
Employers should ensure that tests and selection procedures are not adopted casually by managers who know little about these processes. A test or selection procedure can be an effective management tool, but no test or selection procedure should be implemented without an understanding of its effectiveness and limitations for the organization, its appropriateness for a specific job, and whether it can be appropriately administered and scored.
For further background on experiences and challenges encountered by employers, employees, and job seekers in testing, see the testimony from the Commission’s meeting on testing, located on the EEOC’s public web site at: http://www.eeoc.gov/abouteeoc/meetings/5-16-07/index.html
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August 31, 2007
Interim Guidance on the use of Race and Ethnic Categories in Affirmative Action Programs
Beginning in 2007, employers, including Federal contractors, will report data about the racial, ethnic, and gender composition of their workforces on a revised Standard Form 100, Employer Information Report (commonly referred to as the "EEO-1 Report"). The revised EEO-1 Report must be filed for the first time by September 30, 2007.
OFCCP currently requires contractors to collect and maintain information about the gender, race, and ethnicity of their employees in the five race and ethnic categories used on the previous EEO-1 Report: Blacks, Hispanics, Asians/Pacific Islanders, and American Indians/Alaskan Natives. In light of the changes to the EEO-1 Report, OFCCP is drafting proposed amendments to the recordkeeping and affirmative action program (AAP) regulations at 41 CFR parts 60-1 and 60-2 designed to require the use of consistent race and ethnic categories in the Executive Order 11246, as amended (Executive Order) program.
Comments: OFCCP will publish a proposed regulatory change in the Federal Register “soon,” which means it will be several months before the final rule is published. It is not feasible for the government to expect contractors to have it/report it both ways, therefore, OFCCP will allow the new standards (required by EEOC) to be utilized and no citations (based upon the race and ethnic categories) will be issued if an audit is conducted, i.e., contractors are permitted to prepare AAPs using the racial and ethnic categories provided under the OFCCP regulations or the EEOC new categories.
To review this OFCCP guidance, go to their web site at:
http://www.dol.gov/esa/regs/compliance/ofccp/EEO1_Interim_Guidance.htm
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Copyright © EEO GUIDANCE, Inc. - All rights reserved.