Category: Labor & Employment

Happy New Year: Looking Back and Looking Ahead at EEOC’s Strategic Plan

EEOCSealIn December 2012, the EEOC adopted its Strategic Enforcement Plan for Fiscal Years 2013-2016 (the “SEP”), in which it highlighted the agency’s enforcement priorities for the coming three years.  Now two years into the plan, the EEOC continues to refine its strategic enforcement efforts and employers are responding to them.

The EEOC’s SEP identified six priorities:

  1. Eliminating Barriers in Recruitment and Hiring.

  2. Protecting Immigrant, Migrant and Other Vulnerable Workers.

  3. Addressing Emerging and Developing Issues.

  4. Enforcing Equal Pay Laws.

  5. Preserving Access to the Legal System.

  6. Preventing Harassment Through Systemic Enforcement and Targeted Outreach.

In 2015, the EEOC continued its effort to pursue these stated priorities through systemic investigations and litigation arising from those investigations, despite a mixed record of success in the courts.  For example:

  • Background Check Litigation: Despite some notable setbacks, such as the Fourth Circuit’s affirmance of summary judgment against the EEOC and scathing rebuke of its litigation conduct in EEOC v. Freeman, the EEOC has continued to pursue cases involving background checks in furtherance of its stated priority of eliminating barriers in hiring.

  • Pregnancy and Disability Discrimination: Following the United States Supreme Court’s decision in Young v. UPS, the EEOC reissued its pregnancy discrimination guidance, noting that the “Court explained that employer policies that are not intended to discriminate on the basis of pregnancy may still violate the Pregnancy Discrimination Act if the policy imposes significant burdens on pregnant employees without a sufficiently strong justification.”  The EEOC also noted that the ADAAA does not require an impairment to “last a particular length of time to be considered substantially limiting,” thereby potentially including pregnancy.  The EEOC filed numerous ADA lawsuits in 2015, particularly focusing on reasonable accommodation issues.

  • Equal Pay: Although the EEOC continues to assert its pronounced attention to alleged violations of the Equal Pay Act, it has not expended litigation resources commensurate with its statements.  The EEOC may well monitor developments in equal pay protection under state law (e.g., California’s Equal Pay Act, effective January 1, 2016) to assess the value of its own litigation efforts.

  • Sexual Orientation or Gender Identity Discrimination: In an effort to address “emerging and developing issues,” the EEOC continues to include sexual orientation or gender identity discrimination in its definition of discrimination based on sex.  In its August 2015 fact sheet, the EEOC identified numerous private sector lawsuits initiated by the EEOC or in which the EEOC filed amicus briefs, addressing LGBT-discrimination-related issues.

The EEOC appears poised in 2016 to continue pursuing the SEP aggressively through the use of systemic investigations.  Employers can expect the EEOC to seek to expand investigations of individual charges, particularly in substantive areas aligning with the SEP.  Although the United States Supreme Court ruled in Mach Mining, LLC v. EEOC (2015) that the EEOC’s pre-suit obligation to attempt to conciliate alleged unlawful workplace practices is subject to judicial review, the EEOC will continue to test the limits of judicial review of EEOC’s investigations and attempts to conciliate.  As the new year begins, employers must remain vigilant when challenging failures by the EEOC to conciliate or properly investigate charges and pay particular attention to charges alleging disability, pregnancy and sexual orientation or gender identity discrimination.

Article By James J. Swartz, Jr. of Polsinelli PC

© Polsinelli PC, Polsinelli LLP in California

New Year, New Wages : Minimum Wage Rates Around the States

After ringing in 2016, employers may want to skip the eggnog and check their wages to make sure they are properly paying their employees.  On Jan. 1, the minimum wage rates in 14 states went up and all are higher than the federal minimum wage.  These states and rate increases include:

Alaska

$9.75 per hour

Arkansas

$8.00 per hour

California

$10.00 per hour

Connecticut

$9.60 per hour

Hawaii

$8.50 per hour

Massachusetts

$10.00 per hour

Michigan

$8.50 per hour

Nebraska

$9.00 per hour

New York

$9.00 per hour

Rhode Island

$9.60 per hour

Vermont

$9.60 per hour

West Virginia

$8.75 per hour

The minimum wage rates in both Colorado and South Dakota will increase due to a cost of living adjustment tied to inflation.  For 2016, Colorado’s minimum wage is $8.31 per hour and South Dakota’s minimum wage now is $8.55 per hour.

Other notable minimum wage increases that will occur throughout 2016 include:

District of Columbia

$11.50 per hour, effective July 1, 2016

Maryland

$8.75 per hour, effective July 1, 2016

Minnesota

$9.50 per hour for large employers, effective August 1, 2016

$7.75 per hour for small employers, effective August 1, 2016

Finally, for employers who have federal service contracts, the minimum wage for employees has increased to $10.15 per hour.  These employers should pay close attention to the hourly rates in effect for the applicable contract as some rates will be higher than the minimum wage rate.

Article By Tina A. Syring of Barnes & Thornburg LLP

© 2015 BARNES & THORNBURG LLP

Extension of 2015 Affordable Care Act Reporting Deadlines

On December 28, 2015, the Internal Revenue Service issued Notice 2016-4 extending the deadline for information reporting requirements under the Patient Protection and Affordable Care Act (the “ACA”). The reporting requirements are intended to assist the IRS in application of ACA penalties and were two-fold: an initial disclosure to the employee and a final report to the IRS. These requirements were to be satisfied by the filing of Form 1095 (with different filings under Form 1095-B or 1095-C dependent on the type of insurance arrangement sponsored by the employer). The deadline for furnishing the form to the employee had been set for February 1, 2016. The deadline for filing Form 1095 with the IRS was to be February 29 for non-electronic filers and March 31 for all employers who are “electronic filers” (filing greater than 250 single 1095 forms).

Notice 2016-4 has now extended those deadlines as follows:

New deadline for furnishing Form 1095 to employees: March 31, 2016.

New deadline for filing Form 1095 with the Service:

Non-electronic filers: May 31, 2016.

Electronic filers: June 30, 2016.

Article By Nicole M. Hanna of Dinsmore & Shohl LLP

© 2015 Dinsmore & Shohl LLP. All rights reserved.

Four New Year’s Resolutions to Avoid the Damaging Loss of Trade Secrets

On December 21, 2015, an Illinois jury awarded Miller UK Ltd. $73.6 million against Caterpillar Inc.  Miller supplied couplers for Caterpillar’s equipment, and the jury concluded that Caterpillar used its leverage as Miller’s largest customer to demand access to information that Caterpillar then used to manufacturer its own version of the coupler.  As a result of the alleged theft, Miller claimed it had to terminate roughly seventy-five percent of its workforce, close an office, and scale back a new business venture.  This lawsuit was not between an employer and an employee, but it holds important lessons for employers that operate in industries and environments with valuable trade secrets.

1.   Audit Non-Disclosure Agreements

Trade secrets laws across the country provide a layer of protection for misappropriated trade secrets.  Non-disclosure and confidentiality agreements can often provide additional protection, by catching disclosures that would not be covered by trade secrets laws.

In the New Year, audit company records to confirm that any company or person who has access to the company’s trade secrets and proprietary information has signed a non-disclosure or confidentiality agreement.  If any of these parties did not sign an agreement during the contracting process, get an agreement in place immediately.

2.  Review Materials

In the New Year, review the company’s handbooks, policies, offer letters, and employment agreements to ensure that they prohibit theft and misappropriation of trade secrets and proprietary information from third parties (and not just the company).

Not only will this hopefully prevent employees from engaging in misconduct for which the company could be held liable (i.e. engaging in misappropriation), it could help the company avoid being held liable for any misconduct that does occur.

3.  Audit Restrictive Covenants

To the extent that your company has trade secrets and proprietary information that can be protected through restrictive covenants under applicable law, in the New Year, audit the company’s agreements with employees to ensure that all employees who have access to that information have signed the required restrictive covenants.  If an employee has not signed an agreement, identify what legal consideration will be required to obtain enforceable restrictive covenants. For those employees who have signed restrictive covenants, confirm that the company has signed (if required) and that the company records consist of both the employee’s signature and the body of the agreement that the employee signed.  Finally, review the company’s form restrictive covenants to ensure that they have kept up with the growth and development of the company (i.e. that they protect all of the company’s trade secrets and proprietary information) and with the latest developments in the law.

4.  Resolve

In the New Year, resolve to follow the three steps above at least once per year.  As the verdict demonstrates, an ounce of prevention is worth a pound of cure.  Following a regular maintenance schedule is the best way for a company to minimize the risks associated with trade secrets and proprietary information.

Article By Gillian McKean Bidgood of Polsinelli PC

© Polsinelli PC, Polsinelli LLP in California

Hillshire Brands Company Pays $4 Million to Settle Race Discrimination Suit

EEOCSealAfrican American Bakery Workers Subjected to Racist Comments and Graffiti in the Worksite, Federal Agency Charged

DALLAS – Hillshire Brands Company (formerly known as the Sara Lee Corporation) will pay $4 million to a group of 74 African-American former employees and provide other significant relief to settle a lawsuit where they were subjected to a racially hostile work environment at a former Sara Lee facility in Paris, Texas, the agency announced today.

EEOC claimed African-American employees were subjected to racist graffiti on the walls of the bathrooms and locker room. The former bakery employees also alleged that during work hours, they were berated with racial slurs by supervisors and other white co-workers, and complaints by the plant workers went unaddressed by management.

Race discrimination in the workplace, including race harassment, violates Title VII of the Civil Rights Act of 1964.  The EEOC filed suit (Case No. 2:15-cv-1347) in U.S. District Court for the Eastern District of Texas, Marshall Division, after first attempting to reach a pre-litigation settlement through its conciliation process.

“The Commission completed an extensive investigation at the Sara Lee plant, which included conducting interviews with the former bakery workers,” said Meaghan L. Shepard, trial attorney for the Dallas District of EEOC. “EEOC determined racial slurs and graffiti continued at the facility in Paris for years, until the doors finally closed in November 2011.”

“EEOC strongly believes it is critically important for companies to set policies and provide effective avenues for complaints to address racial harassment in the workplace,” said EEOC Supervisory Trial Attorney Suzanne Anderson. “African-American workers on the Sara Lee bakery production lines in Paris felt embarrassed and intimidated by the graffiti in the bathroom and the racial slurs on the production floor. Strong corporate policies and quick remedial action protects against this type of workplace discrimination.”

The two-year consent decree settling the case provides for an injunction where Hillshire Brands will implement various preventative approaches regarding discrimination or harassment against any employee on the basis of race and will periodically report incidents or investigations to EEOC. Hillshire Brands also agreed to engage in remedial measures such as anti-discrimination training and implementation of procedures to prevent and promptly address graffiti issues.

Belinda McCallister, acting director of EEOC’s Dallas District Office, said, “We are pleased with the approach taken by the employer to acknowledge the hostile environment that once existed and for taking positive steps toward ensuring a healthy workplace in the future.”

EEOC enforces federal laws prohibiting employment discrimination. Further information about EEOC is available on its web site at www.eeoc.gov.

See original news release here: http://www1.eeoc.gov/eeoc/newsroom/release/12-22-15.cfm

© Copyright U.S. Equal Employment Opportunity Commission

EEOC Sues McDonald's for Disability Discrimination

mcdonalds logoFast Food Giant Denied Sign Language Interpreter for Deaf Applicant

KANSAS CITY, Mo. — McDonald’s Corporation and McDonald’s Restaurants of Missouri violated federal law by refusing to accommodate and hire a deaf applicant, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.

According to the suit, Ricky Washington, who is deaf, applied online for a job at a McDonald’s restaurant in Belton, Mo. in June 2012. Washington indicated on his application that he attended Kansas School for the Deaf. Washington also said he had previous job experience working as a cook and clean-up team member at a McDonald’s restaurant in Louisiana in 2009. When the Belton restaurant manager learned Washington needed a sign language interpreter for his job interview, she canceled the interview and never rescheduled it, despite Washington’s sister volunteering to act as the interpreter. Restaurant management continued to interview and hire new workers after Washington made several attempts to schedule an interview.

Such alleged conduct violates the Americans with Disabilities Act of 1990 (ADA), which prohibits discrimination against people with disabilities in employment and requires employers to make reasonable accommodations for job applicants so they will have equal opportunities during the application process. EEOC filed its lawsuit (EEOC v. McDonald’s Corporation, et al, 4:15-cv-01004-FJG) in U.S. District Court for the Western District of Missouri after first attempting to reach a pre-litigation settlement through its conciliation process. EEOC seeks back pay, compensatory and punitive damages, and injunctive relief, including training for all McDonald’s managers on accommodations for applicants with disabilities, particularly those who are deaf.

EEOC St. Louis District Director James R. Neely, Jr. said, “Removing obstacles in the hiring process for people with disabilities is a national priority for EEOC. All employers, but especially large ones, should join with the agency to make sure everyone has equal access to the employment process.”

“People with disabilities have one of the highest unemployment rates in the country,” added EEOC Regional Attorney Andrea G. Baran. “Providing equal employment opportunities to all job applicants – including those with disabilities – is not just the law, it is good for our economy and our workplaces.”

According to company information, McDonald’s is a global fast food provider that serves over sixty-nine million customers per day in 100 different countries.  The Belton, Mo. restaurant is owned and operated by the corporation’s world-wide headquarters in Oak Brook, Illinois.

Eliminating barriers in recruitment and hiring is one of six national priorities identified by EEOC’s Strategic Enforcement Plan (SEP).

The St. Louis District Office oversees Missouri, Kansas, Nebraska, Oklahoma and a portion of southern Illinois.

EEOC is responsible for enforcing federal laws prohibiting employment discrimination.

The original content can be viewed here.

© Copyright U.S. Equal Employment Opportunity Commission

EEOC Sues McDonald’s for Disability Discrimination

mcdonalds logoFast Food Giant Denied Sign Language Interpreter for Deaf Applicant

KANSAS CITY, Mo. — McDonald’s Corporation and McDonald’s Restaurants of Missouri violated federal law by refusing to accommodate and hire a deaf applicant, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.

According to the suit, Ricky Washington, who is deaf, applied online for a job at a McDonald’s restaurant in Belton, Mo. in June 2012. Washington indicated on his application that he attended Kansas School for the Deaf. Washington also said he had previous job experience working as a cook and clean-up team member at a McDonald’s restaurant in Louisiana in 2009. When the Belton restaurant manager learned Washington needed a sign language interpreter for his job interview, she canceled the interview and never rescheduled it, despite Washington’s sister volunteering to act as the interpreter. Restaurant management continued to interview and hire new workers after Washington made several attempts to schedule an interview.

Such alleged conduct violates the Americans with Disabilities Act of 1990 (ADA), which prohibits discrimination against people with disabilities in employment and requires employers to make reasonable accommodations for job applicants so they will have equal opportunities during the application process. EEOC filed its lawsuit (EEOC v. McDonald’s Corporation, et al, 4:15-cv-01004-FJG) in U.S. District Court for the Western District of Missouri after first attempting to reach a pre-litigation settlement through its conciliation process. EEOC seeks back pay, compensatory and punitive damages, and injunctive relief, including training for all McDonald’s managers on accommodations for applicants with disabilities, particularly those who are deaf.

EEOC St. Louis District Director James R. Neely, Jr. said, “Removing obstacles in the hiring process for people with disabilities is a national priority for EEOC. All employers, but especially large ones, should join with the agency to make sure everyone has equal access to the employment process.”

“People with disabilities have one of the highest unemployment rates in the country,” added EEOC Regional Attorney Andrea G. Baran. “Providing equal employment opportunities to all job applicants – including those with disabilities – is not just the law, it is good for our economy and our workplaces.”

According to company information, McDonald’s is a global fast food provider that serves over sixty-nine million customers per day in 100 different countries.  The Belton, Mo. restaurant is owned and operated by the corporation’s world-wide headquarters in Oak Brook, Illinois.

Eliminating barriers in recruitment and hiring is one of six national priorities identified by EEOC’s Strategic Enforcement Plan (SEP).

The St. Louis District Office oversees Missouri, Kansas, Nebraska, Oklahoma and a portion of southern Illinois.

EEOC is responsible for enforcing federal laws prohibiting employment discrimination.

The original content can be viewed here.

© Copyright U.S. Equal Employment Opportunity Commission

EEOC’S Lawsuit Against Costco to Proceed

Costco smallA federal district court judge ruled that the U.S. Equal Employment Opportunity Commission’s (EEOC) claim that Costco violated Title VII of the Civil Rights Act of 1964 by failing to prevent a male customer from stalking and harassing a female employee at the company’s Glenview, Ill. warehouse will be decided by a jury.

Judge Ruben Castillo, the chief judge of the U.S. District Court for the Northern District of Illinois in Chicago, denied Costco’s motion for summary judgment on EEOC’s claim it failed to protect one of its former employees from a sexually hostile work environment. The decision in EEOC v. Costco Wholesale Corp., 14-cv-6553, was entered on Dec. 16, 2015. The court announced it will select a jury trial date at a status hearing in January.

The court said it found evidence the employee was subjected to harassing behavior by a customer for more than a year, including ominous staring, unwanted physical touching, unwanted requests for dates and overly intrusive personal questions. The court found evidence the customer interactions continued to escalate, even though he had been talked to by Costco’s managers and the Glenview police to avoid her. The court also concluded that, added together and given the length of time over which the incidents occurred, they amounted to a level of a hostile work environment.

The court also found evidence Costco failed to take reasonable steps to stop the harassment, noting that Costco waited more than a year to ban the customer from the store. The court granted summary judgment for Costco on EEOC’s constructive discharge claim.

Costco is an international membership warehouse retailer which, according to its website, has over 650 locations worldwide, annual revenues over $100 billion, and over 125,000 employees in the United States.

EEOC’s Chicago District Office is responsible for processing discrimination charges, administrative enforcement and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa, and North and South Dakota, with area offices in Milwaukee and Minneapolis.

EEOC enforces federal laws prohibiting employment discrimination. This information was previously published on the EEOC website, www.eeoc.gov.

Article By U.S. Equal Employment Opportunity Commission
© Copyright U.S. Equal Employment Opportunity Commission

DOL’s Recent Guidance on State Retirement Initiatives for Private Sector Employees Part II: Interpretive Bulletin

140px-US-DeptOfLabor-Seal.svg__0This post continues our two-part series discussing the Department of Labor’s (DOL’s) recent guidance on state retirement initiatives. The first part of this series, “The Proposed Rule—State-Sponsored IRAs,” discusses the DOL’s proposed rule that would create an ERISA “safe harbor” for state-sponsored IRAs. In Part II, we discuss the DOL’s Interpretive Bulletin (Interpretive Bulletin), which addresses other types of state retirement initiatives for workers in the private sector.

The Interpretive Bulletin sets out, in a summary format, the DOL’s views on state-offered 401(k) plans for private sector employees and other state initiatives. Beginning with the DOL’s strong support for ERISA-covered plans (for reasons including the availability of employer contributions, higher contribution limits, and the protection of ERISA accounts from creditors), the Interpretive Bulletin surveys a range of current and potential state-sponsored programs and offers the DOL’s views on how ERISA coverage may apply to each of these initiatives.

The Interpretive Bulletin reviews programs in

  • Washington State, where the state’s proposed retirement program is not considered to be an ERISA-covered plan, but instead by design establishes a marketplace for the offering of ERISA plans and IRAs;

  • the Commonwealth of Massachusetts, where a state law allowing nonprofit organizations to adopt a contributory retirement plan developed and administered by the state is shown as an example of how states may set up their own 401(k) prototype plans for private employers to adopt; and

  • the State of Maryland, where a Governor’s Task Force report considered the possibility of the state establishing and obtaining IRS tax qualification for a state multiple-employer plan (MEP).

The DOL closes by providing its views on ERISA preemption, including the view that the types of programs outlined in the Interpretive Bulletin would not be preempted by ERISA because they do not “undermine ERISA’s exclusive regulation of ERISA-covered plans” and that they “contemplate a state acting as a participant in a market rather than as a regulator.”

Several issues addressed in the Interpretive Bulletin are giving rise to debate, including the DOL’s view that a state’s unique “representational interest in the health and welfare of its citizens” allows a state to sponsor an MEP for in-state employers. What is new here is that the DOL is providing states a different standard for the establishment of an MEP than the “employment based nexus” standard that the DOL established for private enterprises that wish to do the same. This issue is critical because MEPs can have streamlined regulatory reporting and disclosure requirements, allowing them to provide competitive cost savings to adopting employers. Another issue to watch is the DOL’s query (included as a footnote in the bulletin) on whether state sovereign immunity laws need to be reviewed in light of ERISA’s remedial provisions.

While the DOL’s Interpretive Bulletin became effective on November 18, 2015, the impact of the Interpretive Bulletin and the proposed rules on IRAs are worth keeping an eye on. We recognize that change is often the rule and not the exception, but how these state-sponsored programs will play out has yet to be determined. A significant impact to the retirement industry could be on the horizon.

In addition to this DOL guidance package discussed in this series, there is also talk of possible legislative proposals, and the Treasury Department recently announced the federal myRA program as a voluntary national initiative.

Article By Marla J. Kreindler & Matthew J. Chapman of Morgan, Lewis & Bockius LLP

© 2015 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

EMPLOYERS: The #ElderlyChristmasSongs Hashtag Is Trending On Twitter

We have posted numerous blogs discussing the need for employers to stay on top of what is trending on the Internet. Why? Because trending topics can sometimes lead to controversial discussions that might not be consistent with an employer’s EEO Policy. As a result, we explained that it would be prudent to understand what may be the current topic being discussed around the watercooler.

Here is a follow up to those posts. The #ElderlyChristmasSongs hashtag is currently trending on Twitter. What is the relevance of this topic to employers? A quick search shows that a lot of the content posted can be construed as inappropriate and/or discriminatory (although presumably meant to be humorous).  It’s the middle of the work day where we are – so we can only presume a lot of this content is being posted by employees in the workplace.

Remember: The Age Discrimination in Employment Act and many state laws prohibit discrimination based on age.  The more questionable content generated in the workplace, the better chance an employee can argue there is evidence of a convincing mosaic of discrimination tolerated by the employer. Be sure to remind employees of your company’s EEO policy if you come across any inappropriate content and/or discussions. And, as always, be sure to stay on top of trends that may have an impact in the workplace.

Article By Peter T. Tschanz of Barnes & Thornburg LLP
© 2015 BARNES & THORNBURG LLP