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The Government’s Expanded Enforcement Efforts Against Employers

The Government’s Expanded Enforcement Efforts Against Employers. Genetic Information Nondiscrimination Act (“GINA”) Lilly Ledbetter Fair Pay Act Americans With Disabilities Act Amendments Act (“ADAAA”) Affordable Health Care Act. Substantive developments. EEOC.

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The Government’s Expanded Enforcement Efforts Against Employers

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  1. The Government’s Expanded Enforcement Efforts Against Employers

  2. Genetic Information Nondiscrimination Act (“GINA”) Lilly Ledbetter Fair Pay Act Americans With Disabilities Act Amendments Act (“ADAAA”) Affordable Health Care Act Substantive developments

  3. EEOC 2010 budget increased by $23.3 million 140 new employees 2013 enforcement budget to increase by $14 million 25% increase in charges filed between 2005 and 2011

  4. EEOC 38 amicus briefs since January 2011 281 new lawsuits filed in 2009 250 new lawsuits filed in 2010 261 new lawsuits filed in 2011 Average of 460 suits pending

  5. EEOC Criminal background checks Unpaid leaves of absence Social media What’s on the horizon …

  6. Criminal background checks U.S. organizations lose 7% of their annual revenue to fraud Employees account for 48% of losses 75% of all employees steal at least once (half of these individuals steal repeatedly) Majority of cases occur in companies with fewer than 100 employees (resulting in an average loss of $200,000)

  7. Criminal background checks EEOC Enforcement Guidance No. 915.002 (4/25/12) “To eliminate unlawful discrimination in employment screening, for hiring or retention, by entities covered by Title VII, including private employers as well as federal, state, and local governments”

  8. Criminal background checks Based on different arrest and incarceration rates – African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population EEOC argues that an employer’s blanket exclusion of job applicants with criminal histories disproportionately excludes minorities The EEOC wants employers to consider several factors to create a decision-making process that is related to its business and that does not unnecessarily exclude minorities

  9. Criminal background checks EEOC encourages an “individualized assessment” of each applicant to ensure that his criminal history warrants exclusion from the position he is seeking or holding EEOC recommends that when an employer is making a decision based on criminal history, it consider (1) the nature of the offense, (2) the time elapsed since the conviction, (3) the completion of the sentence, and (4) the nature of the job sought or already held

  10. Criminal background checks EEOC’s proposals: Eliminate policies/practices that exclude individuals from employment based on any criminal record of any kind Identify essential job requirements and the actual circumstances under which the jobs are performed Determine specific offenses that may demonstrate unfitness for performing such jobs Keep a record of consultations and research considered in crafting policies and procedures

  11. Criminal background checks EEOC’s proposals (cont’d): Limit inquiries to records for which exclusion would be job related for the position in question and consistent with your business needs Make sure that members of management making hiring and promotion decisions are properly trained Keep information confidential

  12. Criminal background checks Recommendations: Remove requests for criminal history from employment applications Avoid using background checks for all positions Identify specific job-related reasons for background checks and make a record of the reasons Consider the Fair Credit Reporting Act Keep information confidential

  13. Unpaid leaves of absence The combined total costs for incidental and extended disability absences equal 8.7% of payroll The total costs of all major absence categories (including direct and indirect costs) average 35% percent of base payroll 29% for exempt employees 36% for nonexempt salaried 39% for nonunion hourly 38% for union hourly

  14. Unpaid leaves of absence EEOC v. Sears, Roebuck and Co. EEOC v. SuperValu, Inc. and Jewel-Osco EEOC v. United Parcel Service, Inc.

  15. Unpaid leaves of absence Recommendations: Eliminate inflexible policies that result in automatic termination Send notice before leave expires (confirming return to work date) Consider reasonable accommodation that would facilitate a return to work (modified or light duty, part-time work, reassignment, additional leave, and assistive devices)

  16. Social media & the NLRB As of March 2012, Twitter had 140 million active users Facebook hit 900 million users in April 2012 62% of Fortune 500 companies have an active corporate Twitter account 58% of Fortune 500 companies have a corporate Facebook account

  17. Social media & the NLRB Under Section 7 of the National Labor Relations Act, employees have a right to engage in concerted protected activity (including discussions, meetings, or even conduct by a single employee to initiate group action) and employers may not interfere with employees’ efforts to work together to improve the terms and conditions of their workplace

  18. Social media & the NLRB NRLB: “Whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that”

  19. Social media & the NLRB Recommendations: “All employees are encouraged to use social media responsibly and to avoid any activity that may be deemed offensive or otherwise inappropriate” “Employees shall not publicly discuss the Company’s products or services outside company-authorized communications or without disclosing your employment relationship with the Company”

  20. Social media & the NLRB Recommendations (cont’d): “Employees are prohibited from engaging in any activity which harasses, threatens, or discriminates against employees or anyone associated with or doing business with the Company” “Employees are prohibited from using, revealing, posting, or including any trade secrets or confidential information regarding the Company, or customers, or any confidential or private information of other employees, on any social networking website”

  21. Social media & the NLRB Recommendations (cont’d): “The Company reserves the right to monitor all public blogs and social networking sites for the purpose of protecting its interests and to ensure compliance with Company policies” “This policy will not be construed or applied in a manner that restricts or interferes with an employee’s right to discuss wages, hours, benefits, or other terms and conditions of employment with the Company, co-workers or a union, or in any way limits an employee’s exercise of rights under the National Labor Relations Act”

  22. On the horizon … • Anti-discrimination protection based on … • Transgender • Sexual orientation • Family responsibility status • Unemployment status • Facebook inquiries … • Paid family medical leave … • Wage-and-hour lawsuits …

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