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Inside Counsel

Contributing Authors: Elizabeth Pryor Johnson and Kimberly S. Moore
For article source, click here.

The government has issued a myriad of new regulations and administrative initiatives that are keeping labor and employment counsel busy

It is no secret that the government has issued a myriad of new regulations and administrative initiatives that are keeping labor and employment counsel busy advising their clients on compliance. This article contains a brief summary of some of those initiatives.

Strategic enforcement plan

On Dec. 17, 2012, the Equal Employment Opportunity Commission (EEOC) approved its Strategic Enforcement Plan for Fiscal Years 2013-2016 (SEP). The EEOC’s strategic enforcement priorities, as set forth in the SEP, are as follows:

  • Eliminating barriers in recruitment and hiring: The EEOC will target class-based intentional recruitment and hiring discrimination and facially neutral recruitment and hiring practices that adversely impact particular groups.

  • Protecting immigrant, migrant and other vulnerable workers: The EEOC will target disparate pay, job segregation, harassment, trafficking and other discriminatory practices and policies affecting immigrant, migrant and other vulnerable workers, who are often unaware of their rights under the equal employment laws, or reluctant or unable to exercise them.

  • Addressing emerging and developing issues: Examples of emerging issues include certain ADA issues, pregnancy discrimination, and coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply.

  • Enforcing equal pay laws: The EEOC will target compensation systems and practices that discriminate based on gender.

  • Preserving access to the legal system: The EEOC will target policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or which impede the EEOC’s investigative or enforcement efforts. These policies or practices include retaliatory actions, overly broad waivers, settlement provisions that prohibit filing charges with the EEOC or providing information to assist in the investigation or prosecution of claims of unlawful discrimination, and failure to retain records required by EEOC regulations. In connection with this initiative, the Chicago District Office of the EEOC filed suit against CVS Pharmacy and identified the following provisions as violative of Title VII: cooperation clause; non-disparagement clause; non-disclosure of confidential information; a general release of claims; statement of no pending action; covenant not to sue; and breach by employer would entitle company to relief, including attorney’s fees.

  • Preventing harassment through systemic enforcement and targeted outreach:The same is true in the federal sector. While investigation and litigation of harassment claims has been successful, the EEOC believes a more targeted approach that focuses on systemic enforcement and an outreach campaign aimed at educating employers and employees will greatly deter future violations.

Background Investigations

On April 25, 2012, the Office of Legal Counsel of the EEOC issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964. The guidance is intended to update and consolidate the EEOC’s prior policy statements regarding Title VII and the use of criminal records in employment decisions. The focus of the guidance is on employment discrimination based on race and national origin. The EEOC Guidance states that “[a]lthough Title VII does not require individualized assessment in all circumstances, the use of a screen that does not include individualized assessment is more likely to violate Title VII.” Employers have met with some success in challenging the EEOC on this issue, and particularly with respect to the EEOC's reliance upon flawed expert analysis of the alleged adverse disparate impact, such as in EEOC v. Kaplan Higher Educ. Corp and EEOC v. Freeman.

EEOC “surveys”

On Aug. 8, 2013, Case New Holland Inc. and CNH America LLC sued the EEOC in connection with 1,330 emails sent to CNH business email domains to solicit plaintiffs to commence a class action against CNH. These emails were sent to the business email addresses of hundreds of managers and other individuals with arguable authority to bind CNH with evidentiary admissions. The EEOC did so without providing any prior notice to the defendants prior to the email distribution and after eighteen months of no contact whatsoever with the company. Among other things, the complaint alleged that the “survey” began: “The United States Equal Employment Opportunity Commission (EEOC) is conducting an investigation into allegations that FIAT INTERNATIONAL, CNH Global or one of its subsidiaries discriminated against job applicants and current and former employees from January 1, 2009 to present.” The Internet inquiry closed by demanding birthdate, address, and phone number “in case we need to contact you.” This is one of the most comprehensive and aggressive efforts by the EEOC in pursuit of a class.

ENDA

The Employment Non-Discrimination Act (ENDA) is proposed legislation that would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity by employers. For purposes of ENDA, “sexual orientation” means homosexuality, heterosexuality or bisexuality, and “gender identity” means “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.” ENDA contains an exemption for corporations, associations, educational institutions or institution of learning, or society that are exempt from the religious discrimination provisions of Title VII. On Nov. 7, 2013, the U.S. Senate voted 64 to 32 to pass ENDA. Whether the House will vote on ENDA remains an open question.

The NLRB and social media

Recently, the NLRB chair, Mark G. Pearce, confirmed that the Board will continue its emphasis on social media cases. In 2011 and 2012, NLRB Acting General Counsel Lafe Solomon released three memoranda detailing the results of investigations in dozens of social media cases. One report underscores two major points regarding social media:

  • Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.

  • An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

Other recent cases provide guidance as to the scope of activities that the Board will rule as encompassed by Section 7’s protections:

  • Laurus Technical Institute and Joslyn Henderson: The National Labor Relations Board found that Laurus’s “No Gossip Policy,” which prohibited discussing someone's personal life when the person is not present, talking about a person's professional life without his supervisor present, and creating, sharing or repeating rumors, was so broad as to interfere with Laurus’s employees’ ability to exercise their rights under the NLRA.

  • Fresenius USA Manufacturing, Inc. and International Brotherhood of Teamsters: TheNLRB found that termination of employee for making vulgar and threatening statements on union newsletter left in employee area illegal because statements were not so egregious as to cause him to lose protection of NLRA.

Fair Labor Standards Act: Revisions to companionship exemption

On Jan. 1, 2015, revised regulations regarding application of the FLSA companionship services exemption in the home health care industry become effective. Under the Final Rule, more domestic service workers will be protected by the FLSA’s minimum wage and overtime provisions. Under the new regulations, the term “companionship services” means the provision of fellowship and protection for an elderly person or person with an illness, injury or disability who requires assistance in caring for himself or herself. Additionally, it includes the provision of “care” if the care is provided attendant to and in conjunction with the provision of fellowship and protection and if it does not exceed twenty percent of the total hours worked per person and per workweek. Further, employers of live-in domestic service workers must also maintain an accurate record of hours worked by live-in domestic service workers. The employer may require the live-in domestic service employee to record his or her hours worked and to submit the record to the employer. And, finally, third party employers of direct care workers (such as home care staffing agencies) are not permitted to claim either the exemption for companionship services or the exemption for live-in domestic service employees.

Worker Classification Survey

On Nov. 8, 2013, the DOL submitted a request for review and approval of a Worker Classification Survey to the OMB. The DOL intends “to administer a survey to collect information about employment experiences and worker knowledge as to basic employment laws in order to understand employee experiences with worker classification issues.”

 

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