Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

The Equal Employment Opportunity Commission (EEOC) will issue in tomorrow’s edition of the Federal Register a notice of proposed rulemaking (NPRM) (pdf) to define the meaning of the “reasonable factors other than age” (RFOA) defense under the Age Discrimination in Employment Act (ADEA). The need to clarify the scope of this defense was brought about by two recent U.S. Supreme Court cases that address the RFOA defense when plaintiffs claim an employer’s facially neutral policy or practice has a disparate impact on older employees.

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On Wednesday, the Equal Employment Opportunity Commission (EEOC) released its enforcement and litigation statistics for fiscal year 2009 ending on September 30. This data shows that 93,277 workplace discrimination charges were filed, the second-highest total for the agency, although down from last year’s all-time record of 95,402 charges. Private sector charges alleging disability, religion and/or national origin discrimination reached record highs, while the most frequent charges filed in 2009 alleged discrimination based on race (36%), retaliation (36%), and sex (30%). According to an EEOC press release, the “near-historic” level of total discrimination charges could be due to a number of factors, including greater accessibility of the EEOC to the public, economic conditions, increased diversity and demographic shifts in the labor force, employees’ greater awareness of their rights under the law, and changes to the agency’s intake practices that cut down on the steps needed for an individual to file a charge.

The EEOC’s year-end data also shows that a total of 281 merit lawsuits were filed, resulting in $82.1 million in monetary relief for the plaintiffs. Total monetary relief obtained for claimants totaled $376 million, which includes benefits gained through administrative enforcement and mediation as well as through litigation.

Photo credit:  blackred
 

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The Equal Employment Opportunity Commission (EEOC) has identified three proposed and four final rules that will dominate the agency’s regulatory activities for the coming year, according to its Semiannual Regulatory Agenda (pdf) released online yesterday. Of the seven regulations at issue, the EEOC’s Regulatory Plan (pdf) singles out the regulation at the final rule stage to implement the equal employment provision of the Americans with Disabilities Act Amendments Act (“ADAAA” or “ADA Amendments Act”), and the regulations defining Reasonable Factors Other than Age (RFOA) under the Age Discrimination in Employment Act (ADEA) at the proposed rule stage as the most important significant regulatory actions the agency will take.

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The Genetic Information Nondiscrimination Act (GINA) takes effect on November 21, 2009. How does GINA impact employers?  GINA does the following: (a) prohibits employers from discriminating against an employee based upon genetic information, (b) places broad restrictions on an employer’s deliberate acquisition of genetic information, (c) mandates confidentiality for genetic information that employers lawfully collect; (d) strictly limits disclosure of such information, and (e) prohibits retaliation against employees who complain about genetic discrimination.  Continue reading at Littler's Workplace Privacy Counsel blog.

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According to the Equal Employment Opportunity Commission’s (EEOC) annual report released this week, the agency received 93,277 private sector discrimination charges in 2009, the second highest number in 20 years. The Performance and Accountability Report FY 2009 (PAR) (pdf) noted that the number of private sector charges is projected to exceed 100,000 by the end of fiscal year 2010.

According to the PAR, the increase in charges is due in part to the additional statutory authority given to the agency through the passage of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) and the Lilly Ledbetter Fair Pay Act of 2009. The EEOC claims that it has already felt the effects of the ADAAA, as there was a 10.6 percent rise in the number of ADA charges filed (21,451) compared to the 19,401 ADA charges filed in FY 2008. The agency anticipates a small increase in the number of charges filed with EEOC as a result of the enactment of the Genetic Information Nondiscrimination Act of 2008 (GINA), the employment provisions of which take effect on November 21, 2009.

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The Equal Employment Opportunity Commission (EEOC) has posted on its website an updated “EEO is the Law” poster (pdf) and supplement (pdf) to reflect changes made by Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which goes into effect November 21, 2009. Title II of GINA prohibits the use of genetic information in employment, prohibits the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements. The new posters also revise information in light of the Americans with Disabilities Act Amendments Act of 2008.

Employers can either print and post the new November 2009 “EEO is the Law” poster, or post the “EEO is the Law” supplement poster alongside the EEOC’s September 2002 “EEO is the Law” or the OFCCP’s August 2008 “EEO is the Law” posters. Information on how to order new posters can be found here.

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Sen. Claire McCaskill (D-MO) has introduced legislation that would expand whistleblower protections to non-federal employees who disclose information about the misuse of federal funds. The Non-Federal Employee Whistleblower Protection Act of 2009 (S. 1745) would shield employees of companies that receive funding from any government agency (in the form of either grants or contracts) from retaliation for making protected disclosures involving waste or fraud. The bill also expands the scope of covered actions, outlines the burden of proof in whistleblower cases, and prevents employers from forcing employees to waive their whistleblower rights.

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The Equal Employment Opportunity Commission (EEOC) has issued an updated Technical Assistance Document (TAD) – Pandemic Preparedness in the Workplace and the Americans with Disabilities Act – to address how employers may prepare their workplaces for pandemic influenza outbreaks and still remain in compliance with the Americans with Disabilities Act (ADA). The TAD was amended in response to employers’ frequently asked questions about workplace preparation for, and reaction to, outbreaks of the H1N1 virus, which has become more widespread in recent months.

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In an informal opinion letter released October 6, 2009, the Equal Employment Opportunity Commission (EEOC) determined that requiring employees to complete a health risk assessment as a precondition to receiving payment from an employer-funded health reimbursement arrangement can violate the Americans with Disabilities Act (ADA) in certain circumstances.

The letter, written by EEOC Assistant Legal Counsel Peggy Mastroianni, was in response to an employer that asked whether requiring employees to answer more than 100 questions in several categories, including “Personal Health,” “Health Choices-Alcohol and Tobacco,” “Health Changes,” and “Family Health History,” as a prerequisite to receiving health expense reimbursement under an employer-funded health reimbursement plan would violate the ADA. Mastroianni explained that the ADA permits employers to make disability-related inquiries and obtain medical information from employees in certain circumstances, such as if the inquiry is job-related and consistent with business necessity, is part of a follow-up to a request for a reasonable accommodation, or is part of a voluntary wellness program. A program is considered “voluntary” if the employees are neither required to participate nor penalized for non participation.

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As expected, lawmakers have introduced legislation in both houses of Congress that would overturn the Supreme Court’s opinion in Gross v. FBL Financial Services, Inc., a decision that made it tougher for employees to bring mixed-motive discrimination claims under the Age Discrimination in Employment Act (ADEA). In Gross, the Supreme Court held that employees must prove by a preponderance of the evidence that age was the “but for” cause of the employer’s adverse decision. An employer therefore does not carry the additional burden of proving that it would have made the same decision regardless of age, even if the employee were to produce some evidence of age bias in the decision-making process. According to a press release, the new bill, Protecting Older Workers Against Discrimination Act (H.R. 3721, S. 1756):

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The Supreme Court has agreed to decide whether the deadline for filing a disparate impact employment discrimination claim under Title VII of the Civil Rights Act should be 300 days after a discriminatory practice is announced or after it is implemented. In the case at issue – Lewis v. City of Chicago – the City of Chicago administered a written test to 26,000 firefighter applicants. The results of this test were divvied up by score into three levels: “well qualified,” “qualified,” and “not qualified.” Only about 11 percent of the 1,782 applicants who fell into the “well qualified” category were African American. Although applicants whose scores landed them in the “qualified” tier would be placed on the eligible list for the jobs since they passed the exam, shortly after the scores were announced the City reported that it expected to hire only about 600 of the 1,782 “well qualified” applicants, leading the remaining job hopefuls to believe they would not be hired. The actual hiring process took several months.

A class of approximately 6,000 African American applicants who fell into the “qualified” category filled suit against the City over a year later, claiming that the test had a disparate impact on minority candidates. A federal judge in Chicago initially ruled in favor of the plaintiffs. The Seventh Circuit reversed this decision last year, finding that the plaintiffs failed to file a claim with the Equal Employment Opportunity Commission (EEOC) within the statutorily-prescribed 300 days of the announcement of the test results. According to the Seventh Circuit, “[t]he first injury in this case was the classification of the black applicants as merely ‘qualified’ on the basis of a test that they contend was discriminatory.” The court therefore rejected the plaintiff’s argument that the discriminatory event was the application of the test results – i.e., the failure to hire the affected African American candidates. The Seventh Circuit also rejected the plaintiff’s “continuing violation” theory, explaining that “the statute of limitations begins to run upon injury (or discovery of the injury) and is not restarted by subsequent injuries.”

In their petition for Supreme Court review, the plaintiffs allege that the circuits are split on this issue of timeliness. The Second, Fifth, Ninth, Eleventh, and District of Columbia circuits, they claim, have held that each time an employer relies on a facially neutral policy that disparately impacts a protected class constitutes a new violation of Title VII. The Third and Sixth circuits, in contrast, have held that a claim ripens when the employees or applicants become aware of the alleged discriminatory practice.

The outcome of this case will be significant. If the Supreme Court agrees with the firefighter applicants, an employer might be subject to a disparate impact discrimination lawsuit years after an initially unchallenged policy is adopted.

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Senator Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee, announced on Tuesday that his committee will hold a hearing to examine two U.S. Supreme Court decisions that benefit employers. The hearing, “Workplace Fairness: Has the Supreme Court Been Misinterpreting Laws Designed to Protect American Workers from Discrimination,” will undertake a review of the Court’s 2001 decision in Circuit City Stores v. Adams, which extended the scope of the Federal Arbitration Act (FAA) to cover employment contracts, and thus sanctioned certain mandatory pre-dispute arbitration agreements, and the more recent opinion in Gross v. FBL Financial Services, Inc. (pdf), which toughened an employee’s burden of proof in bringing a mixed-motive discrimination claim under the Age Discrimination in Employment Act (ADEA). 

Among the witnesses scheduled to testify at the October 7 hearing is the plaintiff in Gross v. FBL Financials Services, Inc. The Court in this case held that a plaintiff bringing an ADEA claim must show by a preponderance of the evidence that age was the “but for” cause of the employer’s adverse employment decision. Unlike in Title VII discrimination cases, an employer does not need to prove that it would have made the same decision regardless of age, even if the employee were to produce some evidence that age may have been a contributing factor in the decision. In July, Rep. George Miller (D-CA), chairman of the House Education and Labor Committee, criticized this decision and also called for a committee hearing to examine its repercussions. Both Miller and Leahy have likened Gross to Lilly Ledbetter v. Goodyear Tire, a pay discrimination case that was subsequently overruled by the Lilly Ledbetter Fair Pay Act, signed into law earlier this year. Following next week’s hearing, it is possible that legislation to overturn the Supreme Court’s opinion in Gross will be introduced. Bills aimed at invalidating mandatory, predispute arbitration agreements validated by the Circuit City decision have already been introduced this session, but have thus far received little attention.

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The Department of Justice (DOJ) has awarded $723,000 in grants to various groups nationwide to help combat immigration-related employment discrimination. These grants, administered by the DOJ’s Civil Rights Division’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), will range from $48,000 to $87,000 for each of the 12 named recipients. According to a press release, these funds will be used to assist discrimination victims; conduct seminars for workers, employers and immigration service providers; distribute educational materials in various languages; and place advertisements in local communities through both mainstream and ethnic media to educate workers and employers about their rights.

In a statement, Loretta King, Acting Assistant Attorney General for the Civil Rights Division, said: “[a]warding grants to professional and community-based organizations better enables us to educate workers and employers about their rights and responsibilities under federal immigration law,” adding, “[o]ur grant recipients, who are well known and respected in their communities, will collaborate with us to prevent immigration-related discrimination in the workplace.”

The twelve groups slated to receive DOJ funding for the immigration-related anti-discrimination initiative are: the Arizona Attorney General’s Office, Civil Rights Division; Asian Pacific American Legal Center of Southern California; Catholic Charities of Dallas; Catholic Charities, Diocese of St. Petersburg, Fla.; Colorado Legal Services; Legal Aid Foundation of Los Angeles (LAFLA); National Farm Worker Service Center; National Immigration Law Center (NILC); New York City Human Rights Commission; Texas RioGrande Legal Aid; University of Iowa; and the Washington Farm Labor Association.

Earlier this month, U.S. Attorney General Eric Holder revealed that with the increased 2010 fiscal year DOJ budget, the agency intended to substantially enlarge the Civil Rights Division and improve enforcement of antidiscrimination laws.

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The Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP) has posted to its website three technical assistance documents for contractors. These guides do not create any new legal requirements, but rather are intended to serve as basic resources for contractors and subcontractors that are subject to laws enforced by the agency.

An updated version of the Technical Assistance Guide for Federal Construction Contractors (pdf) is intended only for government contractors who have construction contracts or subcontracts, including contractors who have federally assisted construction contracts. According to the OFCCP, this document is designed to help these contractors and subcontractors understand their contractual obligation to comply with the laws administered by OFCCP; understand the role of the OFCCP in enforcing federal equal employment opportunity and affirmative action laws that apply to federal contractors and subcontractors; develop written affirmative action programs where appropriate; implement the affirmative action steps that are described in the Standard Federal Equal Employment Specifications; and prepare for an OFCCP compliance evaluation.

A second guide is designed for non-construction contractors and subcontractors who are nonetheless subject to laws enforced by the OFCCP. Such entities include subcontractors who furnish supplies or services that are necessary to perform a federal contract. The Supply & Service Technical Assistance Guide (pdf) provides information on these supply and service contractors’ obligations to comply with OFCCP-enforced nondiscrimination and affirmative action laws, and discusses how to development written affirmative action plans and to prepare for a compliance evaluation.

The final compliance document now available online is a New Contractors’ Guide (pdf). According to the OFCCP, this guide is intended “to introduce new contractors to their EEO obligations, the enforcement process, and the array of resources OFCCP offers to assist contractors in meeting their obligations.”
 

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The Equal Employment Opportunity Commission (EEOC) has published in today’s Federal Register (pdf) its proposed revisions to the Americans with Disabilities Act (ADA) regulations and accompanying interpretive guidance in order to implement the ADA Amendments Act of 2008 (ADAAA). Last week, the EEOC published on its website a question and answer guide regarding these proposed rules.

Effective January 1 of this year, the ADAAA rejected a line of U.S. Supreme Court decisions that narrowed the definition of “disability” under the ADA. The ADAAA significantly expands the scope of ADA coverage, enabling more individuals alleging disability-based employment discrimination to establish that they are disabled under the ADA. To that end, Congress directed the EEOC to revise its ADA regulations to comply with the ADAAA.

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The Equal Employment Opportunity Commission (EEOC) has published a question and answer guide addressing the proposed regulations drafted in response to the Americans with Disabilities Act (ADA) Amendments Act of 2008 (ADAAA). On Wednesday, the EEOC approved the notice of proposed rulemaking (NPRM) by a vote of 2-1 along party lines. Text of the proposed regulations is slated for publication in the Federal Register next week, to be followed by a 60-day public comment period.

The ADAAA, which went into effect on January 1, 2009, significantly expands the definition of “disability” under the ADA, allowing more individuals to fall under the ADA’s protection. Although the ADAAA, like the ADA, defines “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment, the ADAAA changes how each of these components of the definition should be interpreted. According to a Notice issued by the EEOC, the ADAAA:

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In a recent New York Times article, U.S. Attorney General Eric Holder, Jr. revealed that the Department of Justice (DOJ) intends to substantially increase the Civil Rights Division and enforcement of antidiscrimination laws. The Civil Rights Division prosecutes violations of criminal civil rights statutes and enforces federal statutes prohibiting discrimination on the basis of race, color, sex, disability, religion, and national origin. Such laws enforced by this division include the Civil Rights Act, the Americans with Disabilities Act, and the Immigration Reform and Control Act.

According to the article, the fiscal year 2010 budget requests an increase of approximately $22 million for the Civil Rights Division, up 18 percent from the prior year. The Division seeks to hire more than 50 civil rights attorneys, a significant boost to this department.

The expansion of the Civil Rights Division and its enforcement efforts is part of a greater predicted trend for this administration. Budgets for the Department of Labor (DOL) and Equal Employment Opportunity Commission (EEOC) have similarly received substantial funding increases for fiscal year 2010. Labor Secretary Hilda Solis has emphasized that stepping up enforcement of workplace laws is a top priority, particularly for the Wage and Hour Division, Office of Federal Contract Compliance Programs (OFCCP), and the Occupational Safety and Health Administration (OSHA). For example, the Wage and Hour Division – the DOL sub-agency responsible for enforcing, among other laws, federal minimum wage, overtime, and child labor requirements of the Fair Labor Standards Act (FLSA) – is expected to hire more than 200 new compliance officers for this purpose. Therefore, employers can anticipate increased scrutiny from these agencies, and should take the necessary steps to comply with workplace laws before facing an agency audit or inspection.
 

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The Equal Employment Opportunity Commission (EEOC) has revised a portion of its Compliance Manual addressing the timeliness of filing pay discrimination claims in light of the Lilly Ledbetter Fair Pay Act, which was enacted on January 29 of this year. This law overturned the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007), which required plaintiffs to file a charge of compensation discrimination within 180 days (300 in jurisdictions that have a local or state law prohibiting the same form of pay discrimination) of the discriminatory act or decision. The new law reinstates the “paycheck rule,” which allows courts to consider the receipt of a paycheck or other benefits stemming from the initial discriminatory pay decision to constitute a separate discriminatory act for statute of limitations purposes. The revised Compliance Manual reflects this shift in section 2-IV C.4, Compensation Discrimination, by stating that the period for submitting a claim of pay discrimination under Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), the Rehabilitation Act or the Age Discrimination in Employment Act (ADEA) begins when any of the following situations occur:

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Four Senators have introduced a bi-partisan bill that would ban employment discrimination on the basis of sexual orientation or gender identify. The Employment Non-Discrimination Act of 2009 (ENDA) (S. 1584), introduced by Senators Jeff Merkley (D-OR), Susan Collins (R-ME), Edward Kennedy (D-MA) and Olympia Snowe (R-ME), would prohibit employers, employment agencies, labor organizations and joint labor-management committees from firing, refusing to hire, or discriminating against those employed or seeking employment, on the basis of their perceived or actual sexual orientation or gender identity. In June, Rep. Barney Frank (D-Mass.) introduced similar legislation in the House of Representatives.

In a press release, Sen. Collins said of this bill:  “Similar to the current law in several states, including Maine, and the policies of many Fortune 500 companies, the Employment Non-Discrimination Act would close an important gap in federal civil rights laws by making it illegal to discriminate in employment based on sexual orientation.”

Although House versions of ENDA have failed in the past, momentum is building in Congress to enact more expansive civil rights legislation. This latest bill has been referred to the Senate Committee on Health, Education, Labor, and Pensions.

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The Obama Administration has selected Patricia A. Shiu, a public interest employment lawyer, to head the Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP). The OFCCP is the DOL sub-agency charged with administering and enforcing three laws that prohibit discrimination and require federal contractors and subcontractors to implement affirmative action plans.

Shiu is currently the Vice President for Programs at the Legal Aid Society-Employment Law Center (LAS-ELC) in San Francisco. According to biographical information posted by the National Employment Law Association (NELA), Shiu joined the Employment Law Center in 1983, and has focused on employment discrimination and family and medical leave cases. She has also served as the director of the Society’s Work and Family Project, and lobbied for the passage of California’s Family Rights Act and its regulations. In 1993, former U.S. Secretary of Education Richard Riley appointed Shiu to the Department of Education’s Civil Rights Reviewing Authority. In addition, Shiu is a former member of NELA’s Executive Board, and served as one of its vice presidents.

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Last week the Equal Employment Opportunity Commission (EEOC) issued a technical assistance document outlining an employee’s rights and obligations when presented with a severance package in exchange for a waiver of employment discrimination claims. The document, Understanding Waivers of Discrimination Claims in Employee Severance Agreements, explains in a question and answer format when a waiver of rights under Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Equal Pay Act (EPA) would be deemed valid. The document places special emphasis on waivers of rights under the ADEA by clarifying the seven factors that must be satisfied under the Older Workers Benefit Protection Act (OWBPA) for an ADEA waiver to be considered “knowing and voluntary.” The document also presents a checklist for employees in the event they are offered a severance agreement and a sample waiver form.

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As we predicted, Rep. George Miller (D-CA), chairman of the House Education and Labor Committee, has announced that he intends to hold a hearing regarding the U.S. Supreme Court’s decision in Gross v. FBL Financial Services, which was issued on June 18.  In Gross, the Court held that a plaintiff bringing a claim under the Age Discrimination in Employment Act (ADEA) must show by a preponderance of the evidence that age was the “but for” cause of the employer’s adverse employment decision. An employer does not have to prove that it would have made the same decision regardless of age, even if the employee produces some evidence that age may have been a contributing factor in the decision. Thus, the Court decided, the burden-shifting framework in mixed motive Title VII cases does not apply to age discrimination claims under the ADEA.

Although a positive ruling for employers, Miller criticized this decision in a press release, stating: “The Supreme Court’s ruling will make it even more difficult for workers to stand up for their basic rights in the workplace. A narrow majority of the Supreme Court has once again overturned decades of precedent and congressional intent and sided with powerful corporate interests on a workplace discrimination case.” He further warned that “[l]ike with the Lilly Ledbetter case, Congress may be forced to clarify the law’s intent so we can prevent the damage this decision will have on workers’ civil rights.” The Lilly Ledbetter Fair Pay Act – which was signed into law in January – expressly overturned the Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc. by extending the time period in which employees can assert pay discrimination claims. Therefore, expect the introduction of legislation aiming to amend the ADEA to effectively nullify the Gross opinion, and make it easier for a plaintiff to bring successful disparate impact age discrimination claims against employers.

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The City of New Haven’s failure to use test results that would have disqualified any African American firefighters from receiving a promotion was discriminatory against the white and Hispanic test takers who received qualifying scores, and was therefore unlawful under Title VII of the Civil Rights Act, according to the U.S. Supreme Court in Ricci v. DeStefano. (pdf)  In this closely decided and much-anticipated decision, the Court held that “before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.”

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Rep. Barney Frank (D-Mass.) has reintroduced the Employment Non-Discrimination Act of 2009 (H.R. 2981), a bill that would create comprehensive employment anti-discrimination protections for individuals based on their sexual orientation or gender identity. For purposes of this bill, “gender identity” is defined as “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.” “Sexual orientation” means “homosexuality, heterosexuality, or bisexuality.” The provisions of this bill would impact the private sector as well as local, state and federal government employers.

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In a 5-4 decision delivered by Justice Clarence Thomas, the U.S. Supreme Court in Gross v. FBL Financial Services, Inc. (pdf) has held that a plaintiff bringing a claim under the Age Discrimination in Employment Act (ADEA) must show by a preponderance of the evidence that age was the “but for” cause of the employer’s adverse employment decision, and that an employer need not show that it would have made the same decision regardless of age, even if the employee produces some evidence that age may have been a contributing factor in the decision. Thus, the burden-shifting framework in mixed motive Title VII cases does not apply to age discrimination claims under the ADEA.

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In a public meeting held Wednesday, the Equal Employment Opportunity Commission (EEOC) voted 2-1 to revise its Americans with Disabilities Act (ADA) regulations to conform with changes to the law made by the ADA Amendments Act of 2008 (ADAAA). The proposed revisions will now be forwarded to the Office of Management and Budget (OMB) for review before they can be formally published in the Federal Register.

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Last week Rep. Carolyn Maloney (D-NY) and Sen. Jeff Merkley (D-OR) introduced the Breastfeeding Promotion Act of 2009 (H.R. 2819, S. 1244), a bill that would, among other things, amend Title VII of the Civil Rights Act to clarify that breastfeeding and expressing breast milk in the workplace are protected activities; amend the Fair Labor Standards Act (FLSA) to require large employers to provide time and privacy for lactation; and establish a tax credit for employers that provide a suitable environment for employees to breastfeed or express milk.

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On Monday the House of Representatives passed by voice vote the Wounded Veteran Job Security Act (H.R. 466), a bill that would amend the Uniformed Services Employment and Reemployment Rights Act (USERRA) to prohibit acts of discrimination and reprisal against an employee who is absent from work to receive medical treatment for a service-connected illness, injury or disability. Specifically, under this legislation these employees:

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The Department of Labor’s (DOL) Administrative Review Board (ARB) has upheld an administrative law judge’s (ALJ) finding that three hospitals that receive payments from a Health Maintenance Organization (HMO) for providing medical services to U.S. Government employees are covered federal subcontractors that must comply with the equal employment opportunity and affirmative action obligations imposed by the Office of Federal Contract Compliance Programs (OFCCP).

The three hospitals at issue in OFCCP v. UPMC Braddock had HMO contracts with the University of Pittsburgh Medical Center (UPMC) health plan to provide medical products and services to federal employees. The UPMC health plan, in turn, had contracted with the U.S. Office of Personnel Management (OPM) to provide such medical coverage. The three hospitals, therefore, did not directly contract with the OPM.

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A bill recently introduced in the Senate would prevent employers from firing or otherwise disciplining volunteer firefighters and other emergency medical personnel for missing work while responding to emergencies or other major disasters. The Volunteer Firefighter and EMS Personnel Job Protection Act (S. 1025), introduced by Sen. Thomas Carper (D-Del.), would apply to volunteer workers who are specifically deployed to respond to an emergency situation. Employees must, however, provide employers with written verification—within a reasonable period of time—that the absence was due to a legitimate emergency, and that the employee responded in an official capacity.

The protections offered by this bill would not extend to emergency duty-related absences exceeding 14 days in a given year. Additionally, the protections would not apply if the employee responds to an emergency or major disaster without being officially requested to do so, and if he or she fails to provide the requisite verification of the emergency. Additionally, the terms of this bill would permit an employer to reduce an employee’s regular pay for the time the employee is absent due to the emergency situation. The bill provides employees with a private right of action in civil court against an employer for violations of this Act. The bill would also direct the Secretary of Labor to conduct a study on the impact that this legislation would have on employers of volunteer firefighters and emergency workers.

This bill has been referred to the Senate Committee on Health, Employment, Labor and Pensions.
 

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The U.S. Supreme Court has held that an employer does not necessarily violate the Pregnancy Discrimination Act (PDA) when it pays pension benefits calculated in part under an accrual rule – applied prior to the PDA’s enactment – that gave less retirement credit for pregnancy than for medical leave generally. The Court in AT&T v. Hulteen (pdf) further held that the benefit calculation rule used by the employer in this case was part of a bona fide seniority system that insulated it from a Title VII challenge.

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Within the next six months, the Equal Employment Opportunity Commission (EEOC) expects to develop and/or issue six regulations affecting workplace laws and practices. According to the agency’s spring regulatory agenda released on Monday, regulations implementing the employment provisions of the Genetic Information Non-Discrimination Act (GINA) are expected to be issued by the end of this month. The EEOC’s proposed GINA regulations were published earlier this year.

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A number of federal agencies including the Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA) are requesting information in advance of a future rulemaking on group health plans. Specifically, the EBSA’s Request for Information (RFI) seeks input on questions related to the mental health parity provisions made by the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA). The RFI was published in the April 28, 2009 edition of the Federal Register.

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To commemorate Equal Pay Day, Sen. Tom Harkin (D-Iowa) and Rep. Eleanor Holmes Norton (D-DC) reintroduced the Fair Pay Act (S. 904, H.R. 2151).  While full text versions of these bills are not yet available, they are believed to be substantially similar if not identical to the bills Harkin and Holmes Norton introduced during the last congressional session. Notably, this bill would amend the Fair Labor Standards Act (FLSA) by introducing the concept of equal pay for comparable – not equal – work. Specifically, the Fair Pay Act would make it unlawful to discriminate against employees:

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The Equal Employment Opportunity Commission (EEOC) has issued a technical assistance document outlining employer best practices for avoiding discrimination against workers with caregiving responsibilities. The document, Employer Best Practices for Workers with Caregiving Responsibilities, supplements Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, a guidance document the EEOC released on this topic in 2007. The earlier document specifically examines how federal anti-discrimination laws apply to workers with certain family caregiving obligations. The new guidance provides suggestions for best practices that an employer can proactively adopt to potentially lessen the chances of committing EEO violations against caregiving employees. Suggestions include implementing personal or sick leave policies that allow employees to use leave to care for sick family members, flexible work arrangements, part-time opportunities with proportional compensation and benefits, and equal-opportunity policies that address unlawful discrimination against caregivers.

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The Equal Employment Opportunity Commission (EEOC) announced that it will hold a public meeting on Wednesday, April 22 to discuss discrimination against employees with caregiving responsibilities. At this meeting, the agency will release a new document, Employer Best Practices for Workers with Caregiving Responsibilities. This document will supplement formal guidance the EEOC issued on this topic in 2007.

The meeting will be held at the EEOC’s Washington, D.C. headquarters at 131 M Street, N.E. at 10 a.m. (Eastern Time). The scheduled panelists include: Cynthia Calvert, Deputy Director, The Center for WorkLife Law; Karen Minatelli, Director of Work and Family Programs, National Partnership for Women and Families; Heather Boushey, Senior Economist, Center for American Progress; and Jeff Norris, President, Equal Employment Advisory Council.
 

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In an opinion released today, the U.S. Supreme Court in 14 Penn Plaza L.L.C v. Pyett held that a provision in a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate Age Discrimination in Employment Act (ADEA) claims is enforceable as a matter of federal law.

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President Obama has picked Kathleen Martinez to be the Assistant Secretary for Disability Employment Policy (ODEP). The ODEP is a sub-cabinet level policy agency in the Department of Labor that coordinates efforts to develop and implement policies and practices for the hiring of people with disabilities in both the public and private sectors.

Blind since birth, Martinez has specialized in promoting disability rights throughout her career. She is currently the executive director of the World Institute on Disability (WID). In this position she has been instrumental in producing the international webzine DisabilityWorld (www.disabilityworld.org) in English and Spanish. Martinez also directs Proyecto Visión, the WID’s National Technical Assistance Center, to increase employment opportunities for Latinos with disabilities in the United States.

In 2002, Martinez was appointed by former President Bush as one of fifteen members of the National Council on Disability, an independent federal agency responsible for advising the President and Congress on disability policy. In 2005, Martinez was appointed as one of eight public members on the State Department’s Committee on Disability and Foreign Policy
 

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Bills introduced in both chambers of Congress would amend the Employee Retirement Income Security Act (ERISA), the Public Health Service Act, and the Internal Revenue Code to prohibit preexisting condition exclusions in health plans. The Preexisting Condition Patient Protection Act of 2009 (H.R. 1558, S. 623) would preclude exclusions in group health plans as well as health insurance coverage in the group and individual markets.

The legislation also orders the Secretary of Health and Human Services (HHS) to provide Congress with a report within two years of the law’s enactment on the Act’s impact on health benefits coverage. Pursuant to this report, the HHS is authorized to request data from group health plans and health insurance issuers, including the number, nature, and dollar amount of claims made by enrollees, changes in the demographic composition of enrollees, and other information the Secretary deems appropriate.

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In an informal discussion letter dated March 6, 2009, the Equal Employment Opportunity Commission (EEOC) has determined that requiring employees to take health risk assessments in order to obtain health insurance coverage would violate the Americans with Disabilities Act (ADA).  According to EEOC Associate Legal Counsel Peggy R. Mastroianni, such a mandatory health assessment would violate the ADA’s provisions requiring disability-related inquiries and medical examinations to be job-related and consistent with business necessity.

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A bill introduced this week would guarantee employers the right to implement English-only policies in the workplace.  Introduced by Rep. Tom Price (R-GA) and co-sponsored by 34 others, the Common Sense English Act (H.R. 1588) would amend the Civil Rights Act of 1964 by adding the following provision:

(o) Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer to require employees to speak English while engaged in work.

Earlier this month, the United States Commission on Civil Rights (USCCR) re-opened the period for public comment on English-only policies in the workplace.  On December 12, 2008, the USCCR held a briefing on this issue. According to the USCCR, the goal of the briefing was to examine whether employers have the legal authority to specify English as the official language of the workplace. The Equal Employment Opportunity Commission has taken the position that English-only policies risk national origin discrimination – a position that was heavily criticized by business interests during the Dec. 12 briefing.

The Common Sense English Act has been referred to the House Committee on Education and Labor.

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The Department of Labor has made available to employers a nationwide database of job candidates with disabilities.  The database currently lists 1,921 candidates seeking employment in a variety of fields. Private sector, nonfederal government and nonprofit employers can request unlimited searches by contacting the DOL’s Employer Assistance and Recruiting Network toll-free at (866) 327-6669.

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A bill introduced last week would amend several provisions of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). The Servicemembers Access to Justice Act of 2009 (H.R. 1474) adds a number of new sections that, among other things, enhance USERRA enforcement and increase employer penalties in the event of a violation.

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Pursuant to the Obama administration’s announced intent to reverse a midnight regulation governing health care providers, the Department of Health and Human Services has published in the Federal Register its proposed rescission of the so-called provider conscience rule, published on December 19, 2008. The rule prohibits employment discrimination against health care workers if they harbor religious or moral objections to providing certain services such as abortion and the dispensing of birth control. This rule was controversial not only because it might have limited women’s access to certain health care services, but also because it subjected employers to potentially conflicting laws regarding religious discrimination in the workplace.

Comments on this proposed rescission are due by April 9, 2009. Such comments may be submitted electronically at http://www.Regulations.gov. Click on the link: “Comment or Submission” and enter the keywords: “Rescission Proposal.” Alternatively, comments may be made via email to proposedrescission@hhs.gov. Written comments (one original and two copies) may also be sent to: Office of Public Health and Science, Department of Health and Human Services, Attention: Rescission Proposal Comments, Hubert H. Humphrey Building, 200 Independence Avenue, SW., Room 716G, Washington, DC 20201.

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The United States Commission on Civil Rights (USCCR) has re-opened the period for public comment on English-only policies in the workplace. On December 12, 2008, the USCCR held a briefing on this issue. A transcript of that briefing is available at the USCCR’s website.  Written statements of invited panelists and a link to the C-SPAN broadcast can also be found at the agency’s site.  (click on the heading: Commission Extends Comment Period on English in the Workplace Briefing until April 20, 2009).

According to the USCCR, the goal of the briefing was to examine whether employers have the legal authority to specify English as the official language of the workplace. The Equal Employment Opportunity Commission (EEOC) has taken the position that English-only policies risk national origin discrimination – a position that was heavily criticized by business interests during the Dec. 12 briefing.

Comments on English-only policies will be accepted until April 20, 2009.  Such comments may be sent by mail to: English in the Workplace Comments, US Commission on Civil Rights, 624 Ninth Street, NW, Washington, DC 20425, or via e-mail to comments@usccr.gov.

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The Equal Employment Opportunity Commission (EEOC) has published in the Federal Register its proposed regulations for Title II of the Genetic Information Non-Discrimination Act (GINA). GINA – which, among other things, prohibits employment discrimination based on genetic information, bars the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements – mandates that the EEOC issue implementing regulations by May 21 of this year. Title II of GINA, which governs the employment provisions of the Act, takes effect on November 21, 2009.  Comments on the proposed regulations are due by May 1, 2009.

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As anticipated, the Obama administration has initiated steps to reverse the former administration’s midnight regulation governing health care providers. The Office of Management and Budget (OMB) announced today that it is reviewing a proposal to revoke the provider conscience rule. Once that process is complete, the proposal will be published in the Federal Register, followed by a 30-day public comment period.

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On February 26, President Obama unveiled his proposed $3 trillion budget. A detailed summary can be found on the White House website. (pdf)  As expected, the budget includes increased funding for various agencies tasked with oversight of employers.

Of interest to employers, highlights of this proposal include the following:

• Funding of $110 million to continue expansion of the E-Verify program.
• Projected DOL discretionary funding increases of $12.7 billion for 2009, and $13.3 billion for 2010.
• Increased funding for the Occupational Safety and Health Administration (OSHA), “enabling it to vigorously enforce workplace safety laws and whistleblower protections, and ensure the safety and health of American workers.”
• Increased enforcement resources of the Wage and Hour Division “to ensure that workers are paid the wages that are due them.”
• Increased funding for the Office of Federal Contract Compliance Programs.
• The establishment of automatic workplace pensions. Under this plan, a system of automatic workplace pensions would operate alongside Social Security.  Employees would be automatically enrolled in workplace pension plans.  Employers that do not currently offer a retirement plan would be required to enroll their employees in a direct-deposit IRA account that is compatible with exiting direct-deposit payroll systems. Employees would be given the ability to opt out of this program.
• The provision of $145 million to the Justice Department’s Civil Rights Division to strengthen civil rights enforcement against racial, ethnic, sexual preference, religious and gender discrimination.
   

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The Equal Employment Opportunity Commission (EEOC) announced that it will seek public comment on proposed regulations implementing the employment provisions of the Genetic Information Non-Discrimination Act (GINA). The proposed regulations are expected to be published in tomorrow’s edition of the Federal Register. Comments will be due 60 days after the publication date.

GINA – which, among other things, prohibits employment discrimination based on genetic information, bars the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements – mandates that the EEOC issue implementing regulations by May 21 of this year. Title II of GINA, which governs the employment provisions of the Act, takes effect on November 21, 2009.

For more information on GINA, see Littler’s ASAP: Genetic Antidiscrimination Law Creates New Compliance Challenges for Employers by: Philip L. Gordon and Jennifer L. Mora.

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Immigration-related bills are being introduced at a rapid pace. While many of these bills are destined to languish in committee, the sheer volume of immigration legislation introduced by both parties barely two months into the new Congress increases the chance that at least one bill will eventually receive real consideration. The latest bill – Electronic Employment Eligibility Verification and Illegal Immigration Control Act (H.R. 1096) – would amend the Immigration and Nationality Act to create an electronic employment eligibility verification system and a detailed employment verification process, expand the verification system to apply to previously hired individuals, and increase employer penalties for violations, among other things. If passed, this bill would amend the Immigration and Nationality Act to require E-Verify for all employers. The E-Verify system is currently voluntary, unless mandated by applicable state law.

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Just ten days into his term, President Obama has signed into law a bill that will make it easier to bring wage discrimination lawsuits against employers. The Lilly Ledbetter Fair Pay Act, which Congress made retroactive to May 28, 2007, extends the time period for employees to assert pay discrimination claims by making each paycheck a discriminatory act; not just the initial pay determination.

For more information on this law and how it will affect employers, see Littler’s ASAP: Paycheck Rule Revived for Pay Discrimination Claims with Signing of the Lilly Ledbetter Fair Pay Act by Alison N. Davis, Stephanie L. Hankin, and Tyree Ayers Jackson.

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As expected, the Lilly Ledbetter Fair Pay Act (S. 181) breezed through the U.S. House of Representatives today by a vote of 250 to 177. The House had previously voted to consider the bill under a closed rule excluding the introduction of amendments, virtually guaranteeing its passage. The Senate approved S. 181 on January 22 by a vote of 61-36 without amendment, despite a number of modifications Republican senators attempted to make to this wage discrimination legislation to limit its scope.

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Not even a full month into the year, the new Congress keeps flooding the docket with employment-related bills. Despite organized labor’s push to introduce union-friendly legislation early in President Obama’s term, and the many civil rights and work/family balance bills expected to be introduced, instead, the recent employment-related bills reflect the current financial crisis and rising unemployment. Providing health care and other assistance to the unemployed appears to have taken precedence over the drive for increased union membership and providing for enhanced employee rights and benefits, at least for now.

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In what will be the first employment-related bill to reach President Obama’s desk, the Lilly Ledbetter Fair Pay Act of 2009 (S. 181) cleared the Senate yesterday by a vote of 61 to 36. If signed – as pledged by President Obama and indicated by the presence of the bill’s namesake on President Obama’s train ride to Washington for his inauguration – this legislation will likely lead to an increase in the number of wage discrimination claims filed against employers and make it more difficult to defend against such actions.

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The Senate voted by a margin of 72 to 23 today to effectively limit all debate on the Lilly Ledbetter Fair Pay Act of 2009 (S. 181), virtually guaranteeing its passage. A bill with identical terms easily cleared the House without amendment by a vote of 247-171 last Friday. The House measure had been combined with H.R. 12, the Paycheck Fairness Act, which had also received House approval on Jan. 9 by a vote of 256-163. This week the Senate decided to consider the two bills separately, most likely to ensure that at least one employee-friendly bill gets signed when President-elect Obama takes office next week.

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As anticipated, the House swiftly passed two pay-related bills that will make it easier for employees to sue for wage discrimination. The Paycheck Fairness Act (H.R. 12) and the Lilly Ledbetter Fair Pay Act (H.R. 11) were put to a vote without amendment, as they had been heavily vetted in the last Congress, yet failed to survive the Senate. The House today voted 256-163 in favor of the Paycheck Fairness Act, and 247-171 in favor of the Lilly Ledbetter Fair Pay Act. They will be sent to the Senate – which is likely to be more receptive to these bills this time around – as a package. Consideration may begin as early as next week. If approved, President-elect Obama will almost certainly sign them into law, starting the 111th Congress off to a decidedly worker-friendly start. Interestingly, Congress got off to a similar start in the Clinton era by passing a previously-vetted Family and Medical Leave Act as its first major bill weeks after Clinton took office.

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In the absence of EEOC regulations on the new Americans with Disabilities Act Amendments Act of 2008 (ADAAA) – which made significant changes to the Americans with Disabilities Act of 1990 (ADA) by, among other things, broadening the scope of who is disabled under the ADA and Section 503 of the Rehabilitation Act– two organizations with the Department of Labor have created publications and other compliance resources for employers.

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Before the 111th Congress has even convened, House Majority Leader Steny Hoyer (D-Md.) announced that two employment-related bills will reach the House floor later this week. Both the Paycheck Fairness Act (H.R. 12) and the Lilly Ledbetter Fair Pay Act (H.R. 11) were introduced and easily passed the House during the last Congress, but stalled in the Senate due primarily to Republican opposition and a presidential veto threat. It is noteworthy that both bills are being sent directly to the House floor instead of being vetted through the committee process. In anticipation of a possible Democratic White House in 2009, congressional Democrats in the 110th Congress launched a comprehensive labor and employment law legislative agenda. (For more information, see Littler’s Report Transition to a New (Work) Day: An Initial Look At Workplace Change in the Obama Era). Congressional Democrats intended to vet this agenda in advance so that when the 111th Congress convened on January 6, 2009, these laws could be quickly enacted with the threat of a presidential veto removed. The introduction of the Paycheck Fairness Act and the Lilly Ledbetter Fair Pay Act directly to the House floor is the first installment in the full-implementation of this strategy.

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The Department of Labor issued guidance explaining how a faith-based organization receiving DOL financial assistance can seek exemption under the Religious Freedom Restoration Act (RFRA) from the prohibition that religion not be used as a hiring criteria.

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The Department of Health and Human Services (HHS) issued a final rule that aims to protect health care workers from discrimination if they harbor religious or moral objections to participating in reproductive health care services such as abortion and the provision of birth control. This rule expands protections articulated in sections of three federal laws (the so-called Church, Coats and Weldon Amendments) that safeguard an individual’s right to refuse to provide the aforementioned health services if those services violate that person’s religious beliefs or moral convictions. The proposed rule expands the scope of these statutory protections to include institutional health care providers and individual employees who work for entities that receive certain HHS funds. Additionally, the rule mandates that recipients of certain HHS funds certify compliance at the risk of losing federal funding.

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When the ADA Amendments Act (ADAAA) goes into effect January 1, 2009, regulations interpreting this new law will not be forthcoming. On December 11, the EEOC failed to approve a notice of proposed rulemaking on this new act, which overturns a number of U.S. Supreme Court cases that narrowly interpreted the scope of the ADA’s coverage. 

The four commissioners deadlocked along party lines on whether to approve Republican Chair Naomi Earp’s proposed regulations, which then would have been subject to a 60-day comment period after OMB review and publication in the Federal Register. Reportedly, the sticking point for the Democratic commissioners was that a public meeting on the content of the proposed regulations was premature, as they were not yet finished. Drafts of the regulations have been in the making since August.

Since a transcript of the EEOC meeting is not yet available, the details of the draft regulations are unknown. Thus, it is still unclear as to whether the regulations are objectionable on substantive grounds or just incomplete. What is certain is that regulations or other interpretive guidance on the ADAAA will not be enacted until the next administration, when two new EEOC commissioners will be in place. Since it is anticipated that those vacancies will be filled by employee advocates, the next set of regulations will be more likely to appease the disability rights groups who objected to swift approval of the current version of the act.
 

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Within the next two years, employers can expect to see the reintroduction of employment discrimination legislation that seeks to significantly broaden remedies available to aggrieved employees, weaken employers’ affirmative defenses in harassment claims, and eliminate an employer’s ability to use binding arbitration in employment disputes. Much of this legislation, which was first introduced in the last Congress, is intended to respond to limitations imposed by courts and Congress over the last 10 years.

The Civil Rights Act of 2008, introduced in January of this year (S. 2554, H.R. 5129), never made it past the legislative starting block. However, all or part of the Act will likely re-emerge in the next two years to a more receptive Congress. The provisions of this new law would:

• Eliminate the current $300,000 cap on compensatory damages.
• Add the availability of punitive damages for violations of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.
• Make employers who are in violation of the Fair Labor Standards Act subject to compensatory and punitive damages, in addition to remedies already available to aggrieved employees.
• Render ineffective an employer’s affirmative defense in an Equal Pay Act claim that there exists a “bona fide factor other than sex” for the pay disparity.
• Require employers defending harassment claims to demonstrate that they have established and adequately publicized effective and “comprehensive” harassment prevention policies and complaint procedures and prove that they have undertaken “prompt, thorough and impartial investigations” of such claims. Currently, an employer can defeat a claim of harassment by proving it has exercised reasonable care to prevent and correct any harassing behavior, and that the aggrieved employees have not availed themselves of such procedures.
• Render pre-dispute arbitration agreements often found in employment applications, contracts and handbooks unenforceable with respect to civil rights disputes.

While many of these provisions were met with vociferous opposition from business interests, employers can expect to see serious consideration of these measures in the coming years.
 

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