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

Because the strategic plan is still under development, many of the specific performance measures for achieving the strategic goals have yet to be determined. For example, one of the EEOC’s goals for improving strategic law enforcement is to have a certain percentage of the agency’s litigation docket be comprised of systemic discrimination cases. Such cases include “pattern or practice, policy, and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area.” The exact percentage of desired systemic cases is not yet identified. Another goal is to “ensure that remedies end discriminatory practices and deter future discrimination.” While it can be inferred that the EEOC is calling for increased punitive damages as well as other remedies as a deterrence measure, the plan does not include specifics on this point.

Other goals in the strategic plan will take a couple of years to be fully achievable. By the year 2014 the agency intends to develop and implement a “Strategic Enforcement Plan” (SEP) that would replace the EEOC’s current National Enforcement Program. This SEP would, among other things, establish agency priorities and “integrate[] the EEOC’s investigation, conciliation and litigation responsibilities in the private and state and local government sectors.” According to the EEOC, a main goal of the SEP is to “ensure a targeted, concentrated, and deliberate effort to identify and pursue priority issues and practices that have a significant impact on employees and employers.” In addition, the SEP “may prioritize types of investigations and cases.” The agency intends to develop the SEP using charge statistics in addition to other research.

Other longer-term goals include the following:

• By the end of year 2014, the Commission intends to implement a social media plan to improve its outreach and educational efforts.
• By the end of the five-year plan, the EEOC seeks to review, update, and possibly augment all current subregulatory guidance – such as compliance manuals, fact sheets, and Q&As – with “plain language” materials.
• Also by the end of 2016, the EEOC seeks to implement a new quality control system for investigations and conciliations.
• By the end of the five-year period, the EEOC plans to improve the private sector discrimination charge process to “ensure appropriate pre-charge counseling, streamlined services, and better responsiveness to customers throughout the process.”

With respect to improvement of the charge process, the agency aims to reduce the time period between the intake of a charge and a determination regarding the charge. According to the EEOC, shortening this time period “will provide greater certainty for charging parties and respondents, who are often in limbo until the agency makes a determination and issues a right to sue letter or refers the case to the Department of Justice. Moreover, it will ensure that the agency can focus the bulk of its attention on pursuing charges of discrimination with merit.”

Many of these goals will be achieved through improved use of technology. Such initiatives include 1) developing an on-line system that will allow potential charging parties to submit a pre-charge inquiry for review; 2) providing on-line scheduling of appointments for intake interviews (via on-site meetings, web cams, and/or teleconference); 3) providing charging parties on-line access to check the status of their charge; 4) streamlining the intake process through automated workflow and data analysis; and 5) establishing a secure portal for electronic transmittal and receipt of charge-related documents.

The EEOC acknowledges that several factors – the agency’s operating budget in particular – likely will affect how the strategic plan is developed and implemented. Comments on the five-year plan must be submitted by 5:00 pm ET on February 1, 2012 at strategic.plan@eeoc.gov or by mail to: Office of the Chair, U.S. Equal Employment Opportunity Commission, 131 M Street, NE, Washington, DC 20507.

For each of these five strategic goals, the DOL lists supporting goals, outcome goals, and performance benchmarks that the sub-agencies within the DOL should meet to achieve these five general aims. Notably, the strategic plan confirms the Department’s intent to target the misclassification of employees as independent contractors. With respect to the goal of preparing workers for good jobs and ensuring fair compensation, the plan states that the Wage and Hour Divisions “will be a key partner in a joint Department of Treasury-Department of Labor initiative to detect and deter the misclassification of employees as independent contractors and to strengthen and coordinate federal and state efforts to enforce labor law violations arising from misclassification.” The strategic plan also cites the FLSA recordkeeping regulations – which the Wage and Hour Division is developing and plans to publish as a Notice of Proposed Rulemaking in 2011 – as an example of the DOL’s Plan/Prevent/Protect strategy. According to the strategic plan: “the FLSA recordkeeping regulations under development will require that covered employers notify each of their workers of their rights under the FLSA, and provide employees with information regarding their hours worked and wage computations.”

In order to achieve the goal of ensuring workplaces are safe and healthy, the strategic plan cites OSHA’s Severe Violator Enforcement Program. The program focuses enforcement efforts on significant hazards and violations by concentrating inspection resources on employers who have demonstrated recalcitrance or indifference to their Occupational Safety and Health (OSH) Act obligations by committing willful violations, repeated violations, or violations they have failed to abate.

With respect to the agency’s focus on quantifying its efforts in reaching these goals, the DOL has also issued a document – A New Approach to Measuring the Performance of U.S. Department of Labor Worker Protection Agencies (pdf) – which explains the DOL’s new focus on accountability.

This past year has seen an uptick in agency enforcement activity. This DOL’s new performance-driven approach reflected in its strategic plan will no doubt bolster this trend.