The EEOC recently voted to move forward on new regulations that will likely make it easier for older workers to bring disparate impact claims, and harder for employers to defend against such claims. The EEOC is taking the position that employers have to prove their choices are reasonable when adopting policies that might adversely affect older workers, and the rules provide several guidelines for consideration. In light of the new regulations, employers should revisit the factors used in making hiring, promotion, and termination decisions and take steps to minimize the use of subjective criteria and procedures. Employers should also consider the likelihood that litigation costs may increase as more cases may survive summary judgment, and consult with legal counsel to determine whether additional precautions must be put into place to proactively address potential disparate impact issues.
The NLRB announced today it has issued a Final Rule requiring employers to notify employees of their rights under the National Labor Relations Act (“NLRA”). A Fact Sheet is also available. The rule is scheduled to be published in the Federal Register on August 30, 2011. It is effective November 14, 2011.
Continue Reading NLRB Mandates Posting Of NLRA Rights
The national unemployment rate, as reported by the Department of Labor, has stubbornly remained at about 9% or higher for more than two years. As many of these unemployed individuals search for new jobs, some have purportedly been denied available employment opportunities simply because they were unemployed. Unemployment discrimination, as it is often called, is not currently prohibited under federal law. The EEOC and Congress, however, have taken steps focused on so-called unemployment discrimination that could affect how employers conduct their hiring processes.
In March, we reported on the increasing attention that federal and state legislatures, as well as the EEOC, were paying to employers’ use of employee credit checks in employment decisions. At the time of posting, four states had laws regulating employer use of credit history data and fourteen additional states were considering similar measures. Earlier this month, Connecticut passed Public Act No. 11-223 regulating employer use of credit reports.
Continue Reading Connecticut Restricts Employer Access To Employee Credit Reports
Section 203 of the Labor-Management Reporting and Disclosure Act requires employers to annually report via Form LM-10 any agreement or arrangement with a third-party consultant to persuade employees as to collective bargaining rights, or to obtain certain information about the activities of employees or a labor organization involved in a labor dispute with the employer. The retained consultant must also file a report concerning the agreement or arrangement (Form LM-20). However, one statutory exception in section 203(c) provides that no report need be filed when the consultant gives “advice” to the employer.
The United States Department of Labor (“DOL”) has announced the launch of its first application, or “app,” for smartphones to “help employees independently track the hours they work and determine the wages they are owed” in accordance with the Fair Labor Standards Act (“FLSA”). The application is available in both English and Spanish and allows employees to privately record regular work hours, break and meal times, and any overtime hours. The free app is currently compatible only with iPhone and iPod Touch; however, the DOL is exploring updates for compatibility with other smart phones such as Android and Blackberry phones.
Continue Reading DOL Announces Smartphone “App” To Help Employees Track Work Hours
By proposing to amend its Scheduling Letter and Itemized Listing, the Office of Federal Contract Compliance Programs (“OFCCP”) is at it again, imposing greater burdens on federal contractors. Following its recent proposal to strengthen contractors’ affirmative action efforts for veterans, the OFCCP has now issued a proposal to modify its Scheduling Letter and Itemized Listing used in compliance reviews and compliance checks. On May 12, 2011, the OFCCP published Notice in the Federal Registry requesting comments on its proposed changes. The current Scheduling Letter and Itemized Listing are set to expire on September 30, 2011. Comments on the proposed changes must be submitted by July 11, 2011.
Continue Reading The OFCCP Continues To Demand More From Federal Contractors
The Office of Federal Contract Compliance Programs (“OFCCP”) has issued a proposed rule to strengthen the current regulations that require federal contractors and subcontractors to engage in affirmative action efforts for veterans. The proposed rule was published in the Federal Register on April 26, 2011. Fed. Reg. 23,358 (Apr. 26, 2011). Public comments regarding the rule are due by June 27, 2011.
The OFCCP’s proposed rule would revise the regulations that implement the Vietnam Era Veterans’ Readjustment Assistant Act (“VEVRAA”), 41 CFR Parts 60-250 and 60-300, which have generally remained unchanged since 1976. VEVRAA, its amendments and regulations prohibit contractors from discriminating against protected veterans and additionally require contractors to take affirmative action to recruit, employ, and advance the employment of protected veterans. VEVRAA also requires certain contractors to maintain a written Affirmative Action Plan.
The 2010 fiscal year was a busy one for the EEOC as employees filed a record number of charges. See A Year In Review: EEOC Charges & Trends. This wave of charges is historic — not just because of the number of charges filed, but also because of the evolving trends in the types of claims made. Unfortunately for employers, these trends will likely continue in 2011 and beyond.
Historically, the most common types of claims filed were those of race and sex discrimination. Although these particular types of claims remain prevalent (the number of both race and sex discrimination claims increased in 2010), other types of claims are emerging at an alarming rate due to recent changes in the legal landscape.
A commonly used pre-employment screening method–conducting credit checks–has drawn increased scrutiny in recent months. Legislatures at the state and federal levels are considering bills that would limit employer use of credit checks. Moreover, two recently-filed lawsuits, one of which was filed by the EEOC, seek to challenge the use of pre-employment credit checks in hiring decisions.
Only four states–Hawaii, Illinois, Oregon, and Washington–currently have laws regulating employer use of credit history data. Sparked by the downturn in the economy, fourteen additional states–California, Colorado, Connecticut, Indiana, Kentucky, Maryland, Missouri, Nebraska, New Jersey, New Mexico, New York, Pennsylvania, Texas, Vermont–are considering similar measures.