Thursday, October 20, 2016

EEOC Announces Enforcement Priorities

On Monday, the EEOC announced its updated strategic enforcement plan for fiscal years 2017 through 2021. The updated plan contains the organization’s priorities and strategies for enforcing laws and regulations on equal opportunity and freedom from discrimination in the workplace. The EEOC reaffirmed six priorities identified in its previous strategic plan, released in 2012:
  • Eliminating barriers in recruiting and hiring, including diversity in technology and the increasing use of data driven screening tools;
  • Protecting vulnerable workers, including immigrant and migrant workers, and underserved communities from discrimination;
  • Addressing selected emerging and developing issues;
  • Ensuring equal pay protections for all workers;
  • Preserving access to the legal system; and
  • Preventing systemic harassment.
These priorities have been refined to “recognize additional areas of emerging concern.”  Most notably, the EEOC will put particular focus on two additional areas:
  • Issues related to “complex employment relationships in the 21st century workplace”
  • Backlash discrimination against those who are Muslims or Sikh, or individuals of Arab, Middle Eastern, or South Asian descent, and persons perceived to be members of these groups.
So what does the EEOC mean by “complex employment relationships in the 21st century workplace?” That’s the “gig” economy, within which employers reject traditional employment relationships in favor of leased, temporary, or contract workers. Industries that rely heavily on independent contractors, such as Uber and Lyft, and those that rely on temporary workers and staffing agencies may find themselves the subject of much closer scrutiny. As we have noted in earlier posts, use of temporary and leased employees and reliance on independent contractors can provide benefits but also pose legal risks.
The EEOC says it intends to focus on clarifying the employment relationship and will study how to apply workplace protections against discrimination to temporary workers, staffing agencies, and independent contractor relationships in the on-demand economy. Some commentators have argued that increased enforcement and litigation will drive the gig economy into the ground.
The Commission’s second priority—backlash discrimination—reflects the likelihood of workplace bias against and harassment of individuals perceived to be associated with the perpetrators of tragic events in the United States and abroad.  Complaints of discrimination based on Middle Eastern ethnic origin and religion have increased markedly since the attack on the World Trade Center in 2001, and the EEOC expects that trend to continue.
Posted by Laura Bartlow

Monday, October 17, 2016

That is SO last week

Last week, the EEOC held a public meeting on the growing use of big data and predictive analytics in employment decision-making. A panel of industrial psychologists, attorneys, and labor economists told the EEOC that the use of big data and analytics will continue to grow and is “the future of HR.” The panel generally agreed that such technology has great potential to reduce hiring bias and improve workplace diversity, but only if it’s deployed the right way. As many others have observed, technology built and employed by humans can reflect human biases and unwittingly aid in discriminatory decisions, but there are promising developments. Google, for example, thinks it knows how to prevent discrimination when using artificial intelligence.
  • HR Drive wrote about the link between sexual harassment and the lack of women in leadership.
  • The U.S. Court of Appeals for the 7th Circuit vacated a lower court ruling which held that sexual orientation discrimination is not sex discrimination under Title VII of the Civil Rights Act and granted a rehearing by the full court.
  • Palantir responded to the Department of Labor’s lawsuit alleging discriminatory hiring practices.
  • Claims under the Americans with Disabilities Act are up 63 percent compared to 2015.
  • The City of Anaheim, California settled a discrimination lawsuit from the city’s first Latina attorney for $1.45 million.
  • Facebook launched its new Workplace app.
  • Forbes rounded up the top innovators in HR technology.
  • Facebook executives explained how they adapted their performance review system once they found out that 87% of Facebook workers wanted to keep annual performance reviews.
  • The White House issued a new report on the future of Artificial Intelligence.
In Other News
  • Digital health platform Zocdoc announced it would give its employees an “Unsick Day” of paid time off to be used for preventive care doctor appointments.
  • Business groups asked a Texas judge to immediately vacate the new FLSA overtime rules, just two days after 21 states filed an emergency motion to temporarily bar implementation of the new rules set to take effect December 1.
  • A group of proposed class-action suits over a data breach involving 21,000 employees of Sprouts Farmers Market were consolidated in federal court in Arizona.
  • New York state regulators ruled that Uber drivers should be treated as employees, not independent contractors, for purposes of eligibility for unemployment insurance.

Friday, October 14, 2016

Variations on the Theme of Sexual Harassment

We’ve written a lot about sexual harassment recently, as have other commentators. As the subject is discussed, it’s important to remember that sexual harassment can present itself in many ways. It doesn’t always involve a boss harassing a subordinate, or a man harassing a woman. In fact, the EEOC reports that 17.1 percent of sexual harassment charges it received in 2015 were filed by men.
Federal and state laws prohibiting workplace discrimination do not limit their protections based on the gender of the harasser or the victim, and prohibit all forms of sexual harassment equally. In Oncale v. Sundowner Offshore Services, Inc., decided in 1998, the U.S. Supreme Court acknowledged that Title VII protects both men and women from discrimination based on sex and that sexual harassment by someone of the same gender can be illegal under Title VII. The EEOC offers extensive guidance on recognizing and dealing with all forms of sexual harassment. Nevertheless, employers may not recognize less typical forms of harassment, leaving themselves vulnerable to legal liability that could be avoided by taking timely and appropriate responsive action.
Private lawsuits alleging less typical forms of harassment are not uncommon. In addition, federal and state agencies charged with the enforcement of laws prohibiting harassment are just as interested in such claims as they are in “traditional” sexual harassment cases. The EEOC recently sued a Nashville manufacturer for allowing its male supervisory staff to subject male employees to sexual harassment, and earlier this year the agency sued a wireless phone company for same-sex sexual harassment, alleging that a female sales associate was harassed by a female colleague. 
For employers, it’s critical to educate managers and supervisors about what sexual harassment is (and isn’t), and to respond to all complaints of harassment in the same way.  Employers should:
  • Recognize harassment no matter how it presents itself. A harasser can be the victim’s supervisor, a supervisor in another part of the workplace, a co-worker, or even a non-employee, such as a client or customer
  • Take all allegations of harassment seriously. A complaint or concern should never be dismissed because the affected employee is a man, the alleged perpetrator is a woman, the employees involved are of the same gender, or the circumstances involve peers or co-workers.
  • Never assume that certain language or behavior is more acceptable to employees of one gender. 
  • Never assume that men are better able to defend themselves against harassment than women.

It’s also important to recognize that legal liability for employers and individual harassers does not arise only under anti-discrimination laws. The facts and circumstances that give rise to an allegation of sexual harassment in the workplace can also be the basis for other legal claims. Employers and individuals accused of harassment can be sued for
civil assault, civil battery, false imprisonment, or intentional infliction of emotional distress. Employers can be sued for negligent hiring or negligent supervision in certain instances. Some allegations of harassment may also be the basis for criminal prosecution of the harasser for stalking or criminal sexual assault or battery. The standards for these theories of liability and definitions of criminal conduct vary from state to state, but because they can apply to instances of workplace harassment, employers should be aware of them.
Because the majority of victims are women, the majority of perpetrators are men, and the majority of claims involve individuals of the opposite sex, it’s easy to forget that statutory, civil and criminal laws address the conduct involved in sexual harassment, and not the gender, sexual orientation, or status of the employees involved. Employers protect themselves best—and create the most respectful and productive workplaces—when they understand all the variations on the theme of sexual harassment.

Monday, October 10, 2016

That is SO last week

Last week, The EEOC announced a public meeting on the use of big data in employment practices. This gathering is a continuation of the agency’s interest in the relationship between data analytics and discrimination.  EEOC Commissioners will lead a discussion on big data trends and technologies, current and potential uses of big data, and the benefits and risk associated with big data use in recruiting, hiring, and employee management.
In Other News

Thursday, October 6, 2016

Enforceable Promises

The very first item on our list of rules for employers is this: don’t make promises to your employees that you can’t or won’t keep.  Employers’ promises include those set out in employment contracts, of course, but there are others promises made by employers that can create legal liability and that are worth regular attention.  And it works both ways - employees, related businesses, and vendors may also be obligated by the agreements that they have made with you.
We think that employers should be familiar and comfortable with all of the employment law-related agreements and obligations they are party to.  Here are some of the most important things to look out for:
Obligations in written employment contracts.  This seems obvious, but we find that our clients sometimes lose track of what their employment contracts say.  We also find, particularly in organizations where employment agreements are routine, that contracts are prepared and sent for signature without much attention being paid to their contents.  Employment contracts are important, legally enforceable documents that should be reviewed, before signature if possible, to make sure that they:
  • reflect precisely what the employer and employee have agreed to; 
  • correctly state the conditions of employment and how the agreement will end;
  • correctly describe the employee’s compensation (and how it will change); and
  • obligate the employer to do only those things it is willing to do consistently.
Obligations in written policies and handbooks.  It is common, and good practice, for employers to include a disclaimer in their personnel policy manuals and employee handbooks, stating that the contents do not create a contract and can be changed at any time, with or without notice to employees.  If your policy manual or handbook does not contain such a disclaimer, we encourage you to include one, but until you do, you may be obligated to carry out the policies and procedures the manual or handbook describes.  Employees rely on policies and procedures described in the employer’s written policies, and when they do so to their detriment, courts and juries can be sympathetic to claims of breach of implied contract
Obligations of employees, related organizations, and vendors.  Promises made to an employer can be just as important as those made by an employer.  It’s particularly important to keep track of promises that relate to the protection of confidential information and to liability for non-compliance with employment laws.  We encourage you to review agreements with special attention to the following:
  • Do employment agreements appropriately secure confidential information? Do they protect your organization after an employee terminates?  
  • Do agreements with leasing companies, staffing agencies, or organizations with which you share employees address who will be legally responsible for discrimination, wage and hour violations, and other claimed violations of law?
  • Do vendors who supply HR-related services promise to protect personally identifiable information (PII)? What happens if PII is compromised as the result of a data security breach or some other event affecting the vendor?
Obligations created by government contracts.  Contractors need to keep track of what they promise the government in affirmative action plans and other provisions of the agreements they reach with federal, state, and local government entities.  It is easy to think of government contracts as separate from the obligations created in day-to-day operations, but they contain legally binding terms that may directly relate to personnel practices.  Does your affirmative action plan state that you will follow specific recruitment practices?  Does it promise that you will carry out personnel actions in a particular way?  Remember that government entities can and will audit contractors to determine whether or not they are complying with the promises made when their contract to provide goods or services was created.  If non-compliance is discovered, both the current contract and the right to be a contractor in the future can be put in jeopardy, so the stakes are high.

Posted by Laura Bartlow

Monday, October 3, 2016

That is SO last week

Last week, California Governor Jerry Brown signed a law that requires employers to prove they are not paying workers differently because of their race or ethnicity. This new requirement builds on California’s Equal Pay Act, which took effect January 1, 2016, and prohibits private employers from paying male and female employees a different wage rate for substantially similar work. Also last week, the EEOC announced that it will begin to collect summary pay data from certain employees in 2018 to aid investigations into wage discrimination.
Wage and Hour
In Other News:
  • Jon Hyman wrote about OSHA’s new whistleblower rules.
  • The Department of Labor released its new rule requiring federal contractors to provide their employees with seven days of paid sick leave annually.
  • A casino-gaming company agreed to pay $500,000 in fines to the Securities and Exchange Commission to settle allegations that it fired an employee who reported to senior management and the SEC that the company’s financial statements might be distorted.

Thursday, September 29, 2016

What is “Immediate and Appropriate”?

In recent posts, we have written about old and new forms of sexual harassment and about the employer’s obligation to investigate harassment complaints.  This week, we address what happens when the investigation is complete and the employer concludes that harassment – or at least conduct that violates the employer’s policy against harassment – has occurred.  According to EEOC regulations, an employer has an obligation to take “immediate and appropriate corrective action” to prevent harassment in the workplace. Exactly what that means has been the focus of court decisions for decades now.
Many years ago, in a case called Meritor Savings Bank v. Vinson, the U.S. Supreme Court held that, because Title VII of the Civil Rights Act of 1964 “affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult,” employers have an affirmative duty to remedy hostile or offensive working environments. Later, in Faragher v. Boca Raton, the Supreme Court held that, if an employer knows or should have known of harassing conduct and fails to take proper remedial action, the employer may be held directly responsible for the harassment.  The employer’s duty is than clear, but because the facts and circumstances of every situation differ, what an employer must do to carry out that duty is less clear.  In determining how to respond, employers must consider the nature of the conduct, the impact on the victim, whether the harassment is a first offense or part of a pattern, and what the relative positions of the harasser and the victim are in the organizational hierarchy. 
Despite the need to consider the facts and circumstances of each case before determining what constitutes timely and appropriate corrective action in response to harassment, we do know that the following characteristics are important:
  • It happens quickly.  The employer should decide on a course of action and begin to implement it within days, not weeks, of determining that harassment has occurred.
  • It’s proportional.  Harassing conduct varies in severity and duration.  It is completely appropriate to consider the seriousness of the harassing behavior when determining what to do in response. 
  • It makes an impact.  The employer’s response to harassment should make it less likely that the offending behavior will re-occur.  The harasser, and others who are aware of the employer’s response, should be motivated to avoid similar conduct in the future.
  • It’s on record.  Investigative results and responsive corrective action should be documented.  Doing so makes it easier to prove that the employer carried out its duty, and may also serve as a source of evidence in future harassment investigations.
  • It balances employee privacy with a deterrent effect.  Employees need to know that complaints of sexual harassment will be taken seriously by their employer, and that there are consequences for engaging in harassing behavior.  It is often not necessary, however, to widely publicize the details of disciplinary action taken in response to harassment.  If disciplinary actions are generally kept confidential, discipline taken in response to harassment should be kept confidential, except as may be required to reassure the victim and alert supervisors to the need to observe future interactions between the harasser and the victim. It is never appropriate to publicize the identity of the victim of harassment or to share details about the impact of the conduct on the victim.
  • It’s consistent.  Similar conduct should result in a similar response.  Corrective action should be consistent regardless of the age, gender, ethnicity, or job title of the employee being disciplined. 
Posted by Judy Langevin