As the longest government shutdown in history has come to an end, the U.S. Equal Employment Opportunity Commission recently released guidance for employers faced with upcoming EEO-1 submission deadlines and responding to charges of discrimination filed during the government shutdown.

For 2018 EEO-1 submissions, the EEOC announced that it has postponed the opening of the EEO-1 survey until early March 2019 and that it will extend the deadline to submit EEO-1 data until May 31, 2019. The EEO-1 is an annual survey that requires all private employers with 100 or more employees and federal government contractors or first-tier subcontractors with 50 or more employees and a federal contract, sub­contract or purchase order amounting to $50,000 or more to file the EEO-1 report. The EEOC is encouraging employers who are required to submit an EEO-1 to continue to check back on the EEOC website in the coming weeks for an updated schedule for submissions.

If an employer received a notice of a charge of discrimination while the government was shutdown, between December 22, 2018 and January 28, 2019, the EEOC implemented a blanket due date for all position statements responding to such charges to be uploaded to the EEOC portal. The EEOC is requiring all positions to be uploaded to the EEOC portal by March 1, 2019. The EEOC’s Q&A Guidance explains the automatic extension granted for due dates and the new submission date of March 1, 2019.

Finally, the EEOC reiterated in its guidance that the government shutdown does not affect the 90-day time period a charging party has for filing a lawsuit based on a Notice of Right to Sue. Once a charging party receives a Notice of Right to Sue, a lawsuit must be filed within 90 days.

It is no secret that more U.S. workers are electing to put off retirement and remain in the workforce longer. Given the current labor shortage (lowest unemployment rate in 18 years), this is great news for companies as retaining experienced workers decreases turnover cost and provides immeasurable value in other areas of corporate performance. However, there is a tendency among some companies to “get younger” since experienced workers are often the most highly compensated employees and the newer crop of workers are digital natives that tend to be more technologically fluent.

Given this context, it is unsurprising that age discrimination has become the hot-button workplace discrimination issue in the media (notwithstanding sexual harassment, of course). On June 26, the U.S. Equal Employment Opportunity Commission (“EEOC”) released a report titled The State of Older Workers and Age Discrimination 50 Years After the Age Discrimination in Employment Act. A few of the key takeaways:

  1. Statistics suggest age discrimination is pretty common in today’s workforce. 90% say it is somewhat or very common, and more than 60% of workers 45 and older admitted to witnessing or experiencing age discrimination.
  2. Certain groups are particularly vulnerable – women, minorities and tech workers. In the technology industry, workers are sensitive to the fact that they may be replaced by younger workers – more than 40% of older tech workers are worried about losing their job because they fear age is a liability to their career.
  3. Older workers that lose jobs have much more difficulty finding a new job. This is important because if a worker remains out of work, they may be more likely to institute litigation against their former employer for discrimination.

South Carolina employers are advised to think critically when making decisions about your more experienced workers. Perhaps it is time for your organization to rethink outdated company policies about when a worker should retire, and rethink traditional “succession planning” measures that often disadvantage experienced workers. As more millennials enter the workforce, now is the time to think about how you onboard and train employees regarding stereotypes of the older generation.

Sexual Harassment Complaint Form

The latest headlines confirm the 2016 findings published by the Equal Employment Opportunity Commission (EEOC) that workplace harassment too often goes unreported. The EEOC reports that “approximately 70% of the individuals who experienced harassment never even talked with a supervisor or manager,” meaning that they didn’t report it to their employer. The EEOC found the most common response of any employee who experienced sexual harassment was not to report it but to avoid the harasser, or ignore or attempt to forget the behavior. The reason for not reporting it was that the victim feared they would not be believed, they would be blamed or ostracized, or that they would be retaliated against.

As an “employer’s lawyer” I am often faced with advising clients when these claims are made under an anti-harassment and non-discrimination policy. The victim’s concerns about reporting are legitimate – historically those feared reactions to a sexual harassment report have often borne fruit. Over the years, I believe employers have become much more sensitive to this issue. However, even the most diligent employers on this issue often find themselves noncompliant with Title VII, the law that applies to any employee’s claim of harassment or discrimination. I continue to be surprised that there are many employers who don’t know if they are subject to this law, don’t have a policy prohibiting harassment or discrimination, and don’t follow the EEOC’s guidance as to the specific investigation that has to be performed. So in the wake of all of the press on sexual harassment, it is a good time to take stock of your compliance practices.

Here are some helpful things to keep in mind:

  • Title VII is applicable to employers with 15 or more employees.
  • Title VII requires employers to have a written anti-harassment, anti-discrimination policy with two or more avenues for reporting.
  • The policy must not only reference sexual harassment, but all forms of harassment.
  • The policy must define what is illegal harassment and discrimination.
  • An employer must respond to any complaints under the policy, whether verbal or written.
  • An employer must perform a very specific investigation outlined by the EEOC and the investigation must be timely.
  • An employer must then take any discipline that the investigation’s outcome requires.
  • An employer must then communicate the outcome of the investigation to the employee, although the employer need not tell of the specific discipline if discipline is imposed.
  • An employer must then follow up with the victim to make sure retaliation is not occurring whether or not the underlying investigation resulted in a finding that harassment or discrimination occurred.
  • Retaliation can take many forms.
  • During an investigation, an employer should not change any terms or conditions of the alleged victim’s employment or relocate the victim to make the victim more comfortable – only the alleged offender can be moved or sent out on administrative leave.

These thoughts spring from my observations over the years to the current day regarding employers’ policies and practices. The Fourth Circuit Court of Appeals, our jurisdiction, will not enforce a policy if it is not effective and the steps above are required for an employer to argue its policy is effective.  It is not sufficient to merely have the policy.

Additionally, it is crucial that the leaders in an employer’s organization set the example. Off-color jokes should be prohibited and certainly should not be made by those in charge. Offenders should be dealt with swiftly. Supervisors and leaders truly are held to a higher standard of behavior in the workplace because they set the example. So often employers don’t wish to take any action towards the offender because the offender is so integral to the organization’s success. However, that is exactly the type of situation that creates the possibility for vulnerability on this front as we are seeing in the news today. If employers wish to avoid liability in cases of this nature, they must follow the process diligently and timely, and not be afraid to take discipline when it is required, no matter whom the alleged offender is.

The ruling in the AARP v. EEOC case may be detrimental to employers and their healthcare plans because the EEOC may either reduce the percentage of its allowable inducement (or penalty) below 30% of the employee cost for participation in any employer-sponsored “wellness” program to be considered voluntary or possibly return to its former position that any reward or penalty renders participation involuntary.

The Americans with Disabilities Act (ADA) permits an employer to conduct voluntary medical examinations including voluntary medical histories, including health risk assessments, as part of an employee health program. The Genetic Information Nondiscrimination Act (GINA) also permits the voluntary collection of genetic information. Prior to May 2016 when the EEOC issued its “wellness regulations,” the EEOC’s position was that the ADA also prohibited penalizing or rewarding any employee for completing a health risk assessment that sought medical or disability-related inquiries or participating in any health insurance program, such as a “wellness” program, on the grounds that the reward for doing so rendered participation involuntary. On May 16, 2016 when the EEOC passed its “wellness” regulations, the EEOC concluded that the ADA would not be violated if any incentive or penalty for participation in a “wellness” program was valued at 30% of the employee-cost of plan participation or less. We addressed the EEOC’s 2016 regulations in this blog post.

The AARP’s lawsuit against the EEOC alleged that employees who cannot afford to pay a 30% increase in premiums will be forced to disclose their protected information on health risk assessments or participate in the “wellness” programs when they would otherwise choose not to do so, thereby rendering the award for participation or penalty for refusal to participate involuntary and, thus, prohibited by the ADA. The AARP also alleged that the incentives allowed by the “wellness” regulations were inconsistent with its previous position on incentives.

The 36 page opinion is lengthy but, in short, the D.C. Circuit Court concluded neither the ADA nor GINA defined the term “voluntary” and that the statutes were ambiguous on this point. The federal court went on to conclude that the EEOC’s definition of voluntary in its “wellness” regulations as a 30% employee cost or less for providing medical information as part of a “wellness” program was unreasonable and not adequately explained. The EEOC’s reliance on the Health Insurance Portability and Accountability Act (HIPAA) was unjustified because: 1) HIPAA was promulgated to prevent health insurance discrimination and does not contain an explicit voluntary requirement as ADA and GINA do; and 2) HIPAA expressly permits use of any amount of incentives for participation in “wellness” programs, only applying the rule that the reward may not exceed 30% of the employee and dependents’ total cost of healthcare coverage if the “wellness” program requires satisfaction of a health-related factor to receive the award. Nor was the Court persuaded by the EEOC’s reliance on what it termed current insurance rates to justify the 30% incentive level when the regulation did not elaborate on what those rates are, how the EEOC evaluated them or what bearing they have on the voluntary aspect crucial to the analysis.

For several years prior to the EEOC’s May 15, 2016 regulations, employers, plan administrators, health insurers and brokers hoped that the EEOC would reconcile its position with the Affordable Care Act and HIPAA, which expressly permitted employers to monetarily incentivize employees to participate in wellness programs. While the EEOC’s “wellness” regulations were replete with a number of caveats and conditions, they did at least determine that providing a reward for participation was no longer proof that participation was involuntary. The D.C. District Court’s August 24, 2017 ruling has the potential to result in a setback on the EEOC’s step forward towards that goal.

The opinion can be accessed in its entirety here.

Last week, in the case of EEOC v. Consul Energy, Inc., the Fourth Circuit affirmed a $586,860 judgment for a coal miner who claimed that his employer (Consul Energy) failed to accommodate his religious beliefs and constructively discharged him when it forced him to use a biometric hand scanner to monitor work hours. The employee alleged that the use of the hand-scanning system would cause him to be marked with the Mark of the Beast, which, according to his understanding of the Bible’s Book of Revelation, would associate him with the Antichrist and allow the Antichrist to manipulate him. The biometric hand scanner required employees to scan their hand, and the shape of the hand was linked to the employee’s unique employee number. It did not detect or place a mark on the hand. The employer was unwilling to allow the employee to check in and out by other means, even though two other employees were allowed to check in by entering their employee numbers on a keypad because they had hand injuries. The employee retired under protest. At trial, the jury returned a verdict of $150,000 in compensatory damages, and the court subsequently awarded $436,860 in front and back pay and lost benefits.

On appeal, the employer primarily argued that it did not violate Title VII’s reasonable accommodation requirement because there was no conflict between the employee’s bona fide religious beliefs and the requirement that the employee use the hand scanner system. In essence, the employer’s argument was that the employee misunderstood the Book of Revelation. It argued that the Mark of the Beast is a physical mark that would be placed upon the right hand. According to the employer, there could be no conflict because the scanner system did not give a physical mark on his hand, and, moreover, it was allowing the employee to scan his left hand rather than his right hand. The employer even presented evidence that the employee’s pastor disagreed the employee’s view of a connection between the scanner and the Mark of the Beast.

The Fourth Circuit held that the employee’s argument “is beside the point” because it is not the employer’s place “to question the correctness or even the plausibility of [the employee’s] religious understandings.” All that matters is that the employee sincerely holds the beliefs, and that such beliefs conflict with an employment requirement.

The employer also argued there was no adverse employment action because the employee voluntarily quit. The Fourth Circuit, following recent Supreme Court cases, made it clear that an employee asserting a constructive discharge claim does not need to show “deliberateness” or “intent”- i.e., that the employer denied the accommodation to provoke the employee’s retirement. Rather, the question is whether the employer’s discriminatory conduct subjected the employee to circumstances that were so intolerable that a reasonable person would quit. The Fourth Circuit found substantial evidence that the employee was in an intolerable position by the employer’s refusal to accommodate the employee by requiring him to use a scanner system that he believed would render him a follower of the Antichrist.

This case is an excellent reminder that sincere religious beliefs do not have to identify with the beliefs of a particular sect, even where the employee appears to be a member of the sect. This case is also a reminder that the failure to appreciate the distinction between sincere religious beliefs and what are often viewed as legitimate religious beliefs can be a costly misunderstanding.

Last week, Senators Lamar Alexander (R-Tennessee) and Pat Roberts (R-Kansas) urged President Trump to rescind the new requirements of the revised EEO-1 form. I originally wrote about the proposed EEO-1 form last fall – you can find my blog post here. The revised form requires, for the first time, that covered employers submit pay data to the government. The purpose is to assist the EEOC in identifying and eradicating pay discrimination based on gender, race, and other protected categories.

According to the Senators, “[t]hese revisions will place significant paperwork, reporting burdens, and new costs on American businesses, and will result in few jobs created and higher prices for American consumers.” The EEOC projected it would take the approximately 61,000 covered employers a total of about 1.9 million hours and cost $53.5 million to complete the new forms.[1] However, the United States Chamber of Commerce claims the figures are closer to 8 million hours and $400 million to comply.[2]

The EEOC had initially set a September 2017 deadline for companies to file the new report. After much pushback from the business community, the first reports under the new rules are due by March 31, 2018. This gives elected officials plenty of time to try and convince the Trump Administration to reverse course. The reversal must come from the Office of Management and Budget, which is led by former South Carolina Representative Mick Mulvaney.

This update serves as a reminder to employers to be proactive regarding pay discrepancies. Employers should consider conducting an internal audit to determine whether there is a legitimate business reason for differences in pay among similar categories of employees.

[1] https://www.bna.com/scrap-eeoc-pay-n57982086684/

[2] Id.

The Equal Employment Opportunity Commission (“EEOC”) just released an updated EEO-1 reporting form that requires employers to provide employee pay data beginning in March 2018. A sample of the proposed form can be found here.

Importantly, many companies are not required to complete an EEO-1 form. With limited exceptions, only private employers with one hundred (100) or more employees and federal contractors with fifty (50) or more employees must make the filing each year.

This is the first time that pay information will be reported on the EEO-1 filing. According to the EEOC, collecting pay data from the EEO-1 Form will help improve investigations into pay discrimination based on gender, race, and ethnicity. Critics argue that the data will not serve the agency’s intended purpose and will increase administrative costs on employers.

These changes highlight the EEOC’s current focus on equal pay issues. Employers should be proactive and consider conducting an internal audit to determine whether you have pay disparities that need to be addressed. Identifying pay disparities in advance can help companies decide whether a pay adjustment should be made or whether the disparities can be explained through legitimate justifications.

The EEOC issued its Final Rules on how the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) apply to wellness programs employers offer that request health information from employees and their spouses.[1] The main issue at stake was whether such wellness programs, that require disability-related inquiries and/or genetic information as part of a wellness program, are still voluntary and not mandatory if they offer employees incentives for participating.  (If the information is mandated, then it will be in violation of the ADA and GINA.)

Although the EEOC’s Final Rules are very similar to the proposed rules issued in 2015, the most notable changes are the following:

  • All wellness programs must comply with GINA and the ADA whether part of a group health plan or not (addressing the interpretation that the Proposed Rules applied only to group health plans).
  • The insurance safe harbor is not available to wellness programs. (The ADA contains a safe harbor provision for bonafide benefit plans based on underwriting, classifying or administering risks as long as the safe harbor provision is not used as a subterfuge to evade the purposes of the ADA. The purpose of the safe harbor provision is to permit development and administration of benefit plans using accepted principles of risk assessment.)
  • Notice requirements apply to wellness programs separated from a group health care plan if the program solicits disability-related information or requires medical exams. The Notices must inform employees that the program is voluntary, and advise them what medical information will be obtained, how it will be used, who will receive it, and the restrictions on disclosure. (effective for plan years beginning on or after January 1, 2017). The EEOC published a sample Notice form – https://www.eeoc.gov/laws/regulations/ada-wellness-notice.cfm.

The EEOC specifically stated that the courts wrongfully applied the ADA’s safe harbor provision to two wellness programs in two cases, Seff v. Broward Count[2]y and EEOC v. Flambeau, Inc[3]., because neither employer used the wellness program data to determine insurability or calculate insurance rates, nor was there any evidence that the surcharge employed in both cases was based on actual risks that non-participating employees imposed. The Florida District Court in Seff held that the wellness program requiring completion of health risk assessments and biometric testing offered by the employer at issue did not violate the ADA and, in fact, fell under the ADA’s safe harbor provision.  The Wisconsin District Court granted summary judgment against the EEOC in Flambeau, holding that the employers’ requirement that employees complete health risk assessments and biometric testing if they desired to participate in the group healthcare plan fell within the ADA’s safe harbor and did not violate the ADA.

The EEOC did not change its position that wellness programs requesting disability-related information or medical exams must be voluntary. Programs are voluntary if the employer does not require employees to participate; does not deny or limit coverage under any of its plans to non-participating employees; does not take adverse action, interfere with or retaliate against the non-participating employee; and provides notice to employees about what information is collected, how it will be used and with whom it will be shared, how it will be kept confidential, explains the restrictions on uses and disclosures, and explains the methods employed to prevent improper disclosure.  A participant cannot be required to share medical information in order to participate in the wellness program.

The programs also must be reasonably designed to promote health and must not be a subterfuge for disability discrimination, meet certain notice requirements to employees, and limit the amount of incentives that may be offered for participation. In order to be reasonably designed, the collected information must address conditions identified through follow-ups with the participating employees, whether by providing information or advice, or creating programs to address the conditions identified and improve health.

Incentives up to 30% of the total cost of self-only coverage under the health care plan may be offered for participation in a wellness program. The Final Rules include guidance on how to calculate the cost of health care coverage for purposes of complying with the limitations on incentives effective for plan years beginning on or after January 1, 2017. If the employee does not participate in the group health plan, the employer may use the cost of single coverage if there is only one plan or the cost of the least expensive plan if there is more than one plan.  If an employer has no health care plan, then the employer must calculate wellness program’s incentives to be 30% or less of the cost of self-only coverage for a 40 year old non-smoker under the second lowest cost Silver plan available through the Marketplace in the same location as the employer’s principal place of business.

GINA will be violated if an employer imposes a penalty on the participating employee or spouse for failing to achieve a certain health outcome. The maximum incentive for spousal participation is $1800, effective January 1, 2017.

Other useful information on these new rules can be found here:

Small Business Fact Sheets:
https://www.eeoc.gov/laws/regulations/facts-ada-wellness-final-rule.cfm https://www.eeoc.gov/laws/regulations/facts-gina-wellness-final-rule.cfm

EEOC Q&A: https://www.eeoc.gov/laws/regulations/qanda-ada-wellness-final-rule.cfm

 

 

[1] Unless otherwise indicated, the rules apply effective immediately.

[2] Seff v. Broward County, 2011 U.S. Dist. LEXIS 44807 (S.D.Fla., April 11, 2011).

[3] E.E.O.C. v. Flambeau, Inc., 2015 WL 9593632, *1 (W.D. WI., December 31, 2015).  See our blog titled “A Win For Wellness” posted on February 9, 2016.

top10A couple of weeks ago, employment law practitioners from South Carolina and North Carolina gathered for the 31st Annual NC/SC Labor & Employment Conference. The program was filled with many highlights, including a presentation from David Lopez, General Counsel of the United States Equal Employment Opportunity Commission (“EEOC”).

Mr. Lopez discussed the EEOC’s “Top Ten Litigation Developments” and gave some valuable insight into the current trends and thinking at the federal agency charged with regulating and enforcing workplace discrimination. According to Mr. Lopez, the EEOC’s priorities are the following, in order of importance:

  • Number 10: Racial Harassment
  • Number 9: Disparate Impact in Background Screening (i.e., whether questions about applicant convictions has disproportionate effect on certain racial minorities)
  • Number 8: Sex Discrimination
  • Number 7: Preservation of Access to the Legal System (arbitration agreements, retaliatory conduct, etc.)
  • Number 6: The Importance of Juries (statistics show EEOC is often successful in jury trials)
  • Number 5: Discrimination Against Immigrant, Migrant, & Other Vulnerable Workers
  • Number 4: Reasonable Accommodations for Disabled Workers
  • Number 3: LGBT Coverage under Title VII
  • Number 2: Pregnancy Discrimination
  • Number 1 (tie): EEOC’s Pre-suit Obligations (what exactly are the conciliation requirements?)
  • Number 1 (tie) : Religious Discrimination/Accommodation

Obviously, there is a lot to discuss with this list, and future posts will dive into some of these issues individually – so be on the lookout! In the meantime, employers should review this list carefully and think about how you are being proactive to prevent these discriminatory practices – particularly ones that are gaining increasing media attention such as LGBT discrimination, pregnancy discrimination, and banning the box legislation.

blog2015HRLawUpdateBannerHaynsworth Sinkler Boyd’s Employment Team is pleased to offer the 2015 HR Law Update in six cities this Fall.

Hot Topics. Through these six sessions, you’ll learn about hot topics HR managers are facing today: Immigration, Criminal Background Checks, Independent Contractors, FLSA Violations, Pregnancy Non-Discrimination, and more.

Don’t miss out. In one morning, we’ll cover the basics of HR law in a fast-paced, plain-English way that will provide a whole new level of understanding to anyone who has to deal with the thousands of facets of employment law.

September 22nd – Anderson, SC

September 23rd – Spartanburg, SC

November 11th – Sumter, SC

November 12th – Lexington, SC

December 1st – North Charleston, SC

December 2nd – Florence, SC

Each seminar will start with Registration & Continental Breakfast at 8:00 am. Sessions will begin at 8:30 and conclude by Noon.

To Register, click on the desired city above or visit www.hsblawfirm.com and look for Upcoming Events.

SESSION #1 – Wage and Hour Compliance: The most common FLSA violations. A discussion about most common unintentional FLSA violations, as well as situations to avoid. Presented by Chris Gantt-Sorenson

SESSION #2 – Immigration: What you need to know about President Obama’s executive action on Immigration. Presented by Garrett D. Steck

SESSION #3 – Independent Contractors: Are workers truly independent contractors or are they really your employees under the law?  An overview of current federal and state guidance on the classification, including practical application and tips for drafting your contracts to avoid the consequences of incorrectly classifying workers.  Presented by Emily H. Farr

SESSION #4 – Can the Box be Banned? Employers with a Legal Duty to Conduct Criminal Background Checks. Presented by Andrea H. Brisbin

SESSION #5 – Pregnancy Non-Discrimination Act:Directives from the Supreme Court’s ruling in Young v. UPS and its impact on the EEOC’s guidance and the Pregnancy Non-Discrimination Act Amendments. Presented by Pierce T. (Perry) MacLennan

SESSION #6 – Open Forum: A free exchange of information and ideas covering today’s topics and beyond. Attendees are encouraged to come ready with questions to ask the lawyers.

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