Major Budget Increases for Federal Labor and Employment Enforcment Agencies
The Obama Administration has released its fiscal year 2010 budget request. Among the items are several increases for the federal agencies that oversee labor and employment matters. Here are some highlights:
- $104.5 billion to the Department of Labor, an increase of 10 percent, to increase its staff and enforcement activity.
- $283 million for the National Labor Relations Board, an increase of 7.9 percent.
- $267 million for the Equal Employment Opportunity Commission, an increase of 6.6 percent, to increase staffing.
- $145 million of the Justice Department's Civil Rights Division, an increase of 18 percent.
- $112 million to the Department of Homeland Security for the E-Verify program.
Assuming they are passed by Congress, these increases reverse a long trend under the Bush Administration to cut funding to the federal agencies that enforce labor and employment laws. Employers can expect increased enforcement of those laws by the federal government in the years to come.
EEOC Issues Swine Flu Guidance
The Equal Employment Opportunity Commission (EEOC) has issued two helpful resources for employers coping with the Swine Flu outbreak. First, the Commission has issued this technical assistance document on ADA-Compliant Employer Preparedness For the H1N1 Flu Virus. It answers basic questions about workplace preparation strategies for the 2009 H1N1 flu virus (swine flu) that are compliant with the Americans with Disabilities Act (ADA).
Second, the Commission has issued this notice on Employment Discrimination and the 2009 H1N1 Flu Virus, reminding employers that the Swine Flu outbreak is not an excuse to discriminate against employees and potential employees on the basis of disability or national origin. Of course, you didn't need that reminder because you read the World of Work, right?
Age Discrimination Claims on the Rise
According to the Wall Street Journal, discrimination filings with the Equal Employment Opportunity Commission (EEOC) went up 15 percent in 2008 compared to 2007, and age discrimination suits in particular showed a dramatic 29 percent increase over the previous year. Click here to read the WSJ Article.
The conventional wisdom is that discrimination claims go up in a down economy -- more people lose their jobs through layoffs or heightened performance standards, and a certain percentage of those affected will file discrimination claims. That doesn't necessarily explain the spike in certain types of claims, however, such as the recent increase in age discrimination claims.
So why the spike in claims? It could be as simple as an aging workforce, but we suspect more is at work. In a troubled economy, many employers focus their layoffs on more highly-compensated employees, and that can have a greater impact on older workers (while specifically targeting older workers for layoff is unlawful, it may be lawful to select higher-paid workers). Also, older workers have a harder time finding replacement employment, and that might lead them to file claims against their former employers rather than move on.
These are challenging times for employers, and now more than ever it pays to be careful when conducting layoffs and terminations.
EEOC Proposes Regulations for Genetic Information Nondiscrimination Act
Today the EEOC published its proposed regulations on the Genetic Information Nondiscrimination Act (GINA). Click here to download the proposed regulations. Interested members of the public have 60 days (or until May 1, 2009) to comment on the new regs.
GINA, passed by Congress last year, prohibits the improper use of genetic information in health insurance and employment. GINA prohibits group health plans and health insurers from denying coverage or charging higher premiums based solely on the insured's genetic predisposition to developing a disease in the future.
Title II of GINA, which takes effect November 21, 2009, will prohibit employers from using genetic information to make hiring, firing, promotion or other employment decisions based on genetic information. Why would anyone want to do that? Perhaps you should watch this movie:
Senate Passes Lilly Ledbetter Bill 61-36
The Senate voted 61-36 yesterday to pass the Lilly Ledbetter Fair Pay Act, which is intended to overturn a U.S. Supreme Court decision that limited the time frame for bringing pay discrimination claims. The bill now will have to be reconciled with the House's version of the bill (H.R. 11), approved on a 247-171 vote Jan. 9, before President Obama can sign it into law.
The bill is named after Lilly Ledbetter, a former supervisor at a Goodyear tire plant in Alabama, who discovered that she had been receiving less pay than her male counterparts who were doing the same work. She discovered this by an anonymous note after working for the company for nearly 20 years. Her subsequent lawsuit was fought all the way to the U.S. Supreme Court. In May 2007, the Court ruled in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), that the time limits for filing a discrimination charge with the Equal Employment Opportunity Commission start to run when the employer makes a discriminatory decision about the employee's compensation, not each time the employee receives a paycheck affected by discrimination. Though she lost her lawsuit, Ms. Ledbetter became a champion for equal pay for women.
The bill would reverse the Ledbetter ruling by amending most federal anti-discrimination laws to provide that the charge-filing periods—300 days in most states and 180 days in the few states that do not have a fair employment agency—would be triggered whenever an employee is affected by application of a discriminatory compensation decision or practice.
Ledbetter, Fair Pay Acts Pass House
There was a lot of fairness on Capitol Hill last week: the Lilly Ledbetter Fair Pay Act and the Paycheck Fairness Act both passed the House of Representatives on Friday, January 9, 2009. For those of you keeping score at home, the Ledbetter Act passed 247-171, and the Paycheck Fairness Act passed 256-163. Both bills will proceed to the Senate, and they are expected to pass there as well.
The Ledbetter Act is named after a losing plaintiff in an oft-criticized Supreme Court case, Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007). There, the Court held that the time limits for filing a discrimination charge with the Equal Employment Opportunity Commission (EEOC) start to run when the employer makes a discriminatory decision about the employee's compensation, not each time the employee receives a paycheck affected by discrimination. The proposed Act would reverse that ruling by amending Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act to provide that the filing periods—300 days in most states and 180 days in the few states that do not have a fair employment agency—would be triggered whenever an employee is affected by a discriminatory compensation decision or practice.
The Paycheck Fairness Act would increase remedies in Equal Pay Act cases, making available compensatory and punitive damages, authorizing class actions, and mandating training and other outreach efforts by the EEOC and the Labor Department's Office of Federal Contract Compliance Programs on wage discrimination issues.
EEOC Deadlocks Over ADA Amendments Act Rules
The Equal Employment Opportunity Commission (EEOC) split yesterday over whether to approve a notice of proposed rulemaking on the ADA Amendments Act (ADAAA). The commissioners voted 2-2 on whether to approve a set of proposed rules that had been drafted by EEOC's Office of Legal Counsel. Under the EEOC's rules, a tie vote is the same as a "no," meaning the proposed rules will not be presented to the public for comment. (For those of you suspecting political motives, you could be right: the two Republican Commissioners voted in favor of releasing the rules, and the two Democrats voted no.)
What does this mean? The ADAAA will go into effect January 1, 2009 without any interpretive regulations to help us navigate the new law. The ADAAA requires the EEOC to create new regulations, but does not set any deadlines. When the EEOC does make new regulations, it will publish them and allow public comment for 60 days before the regulations may take effect. And if the Commissioners remain deadlocked, it make take an appointment from President-Elect Obama to break the tie.
For more information on the ADAAA, check out the World of Work's ADAAA Archives.
Salvation Army Settles "English Only" Lawsuit with EEOC
A Massachusetts federal court last week approved a consent decree settlement of an Equal Employment Opportunity Commission (EEOC) lawsuit against the Salvation Army over the firing of two Spanish-speaking employees who failed to adhere to the employer's "English only" policy. To read the consent decree in that case, click here.
In that suit, the EEOC had accused the Salvation Army with national origin discrimination under Title VII for enforcing an English-only policy that required its thrift store employees to speak only English in the workplace, even when on breaks. The EEOC argued that the English-only policy violated Title VII because it was not justified by “business necessity," as it was used to terminate two clothes sorters who had no customer contact.
Under the consent degree, the Salvation Army will adopt new policy that employees shall use English in the workplace “to the best of their abilities when speaking to any other employee, beneficiary, customer, or a supervisor"--however, the policy will allow non-English speaking employees to speak their native language during work breaks and to use languages other than English with customers who speak the same foreign language.
This case is a reminder to employers that English-only policies may only be used and enforced if English is a "business necessity." Requiring employees to speak English during working time when speaking to customers, supervisors and coworkers is generally accepted. However, requiring employees to speak only English during breaks or in private, or requiring employees to demonstrate English proficiency when English is not a bona fide job requirement is highly risky. If you have or are considering an English-only policy for your workplace, you may want to ask your employment attorney to review that policy. To read the EEOC's guidance on English-only policies, click here.
Employer Violated Title VII by Terminating Employee for Undergoing In-Vitro Fertilization
In the first case of its kind before a federal circuit court, the Seventh Circuit Court of Appeals held recently that an employer violated Title VII for terminating a female employee who underwent in vitro fertilization treatments. To read the opinion in Hall v. Nalco Company, click here.
The employer terminated the employee citing “absenteeism—infertility treatments.” It then replaced her with a female employee who was incapable of becoming pregnant. The employee sued, alleging her termination violated the Pregnancy Discrimination Act (PDA), which amended Title VII to include pregnancy and childbirth as bases for discrimination. The employer argued that the termination was for a gender-neutral reason: infertility. However, the Seventh Circuit held that there was evidence the termination was for her gender-specific quality of childbearing, in violation of Title VII.
Despite Hall, employment actions based on infertility are not unlawful as long as they affect men and women equally. For example, employers may lawfully exclude all treatments for infertility from their health benefit plans. Employers should beware, however, of adverse treatment of a particular infertility-related procedure that affects women only. Just as an employer may not discriminate against women because of pregnancy or maternity leave, it may not discriminate against women who undergo in vitro fertilization. For more information on avoiding pregnancy discrimination, read this fact sheet from the EEOC.
