New Regulations on the Executive Agenda: How Will They Affect Your Workplace? (2/11)

Congress may slow to a standstill thanks to a shift in power, but the executive agencies show no sign of letting up.  Find out what regulations are on the agenda and how they will affect your business.

The Republican landslide this fall may have ensured a reduction in new legislation, but the executive agencies controlled by the President show no sign of slowing down.  Even as President Obama issued an Executive Order on January 18, 2011, “Improving Regulation and Regulatory Review,” dedicated to ensuring that “regulations are accessible, consistent, written in plain language, and easy to understand,” several executive agencies have indicated their intent to pursue new regulations that will have a lasting impact on employers.  In particular, the Equal Employment Opportunity Commission (EEOC), the Occupational Safety and Health Administration (OSHA), and the National Labor Relations Board (NLRB) have issued new regulatory proposals.  Here are five highlights from the agencies’ regulatory agendas and proposed rulemakings that could affect your workplace: 1.     ADAAA final regulations sent for OMB approval.  The EEOC finally approved the proposed final regulations to implement the Americans with Disabilities Act Amendments Act (ADAAA).  The ADAAA went into effect two years ago, on January 1, 2009, and changed the Americans with Disabilities Act (ADA) to make it easier for people to qualify for protection under the ADA by expanding the definition of “disability” to cover more impairments.  Prior to the ADAAA, courts (including the Supreme Court) had interpreted the definition of disability very narrowly so that only individuals who were severely restricted in their ability to perform major life activities were entitled to ADA protections.  The ADAAA, however, expressly rejected the Supreme Court’s interpretations and directed the EEOC to revise its ADA regulations so that more illnesses and conditions would be covered as protected disabilities.       The EEOC originally issued a notice of proposed rulemaking in September 2009, and the rule finally was approved by the EEOC in late December 2010.  However, the rule now must be reviewed by the Office of Management and Budget before it is published in the Federal Register, which could take another several months.  Best estimates are that this final rule will be issued by May or June 2011 and that employers will then have at least 60 days before it takes effect to implement the new requirements.  Many of the requirements seen in the proposed rule are expected to be in the final rule, including an expansion of the definitions of “major life activity” and “substantially limits” so that more conditions will be considered disabilities and protected by the ADA.  In addition, the rule is expected to contain a nonexhaustive list of conditions that generally will be considered disabilities, an approach that is a significant change from current interpretations of the ADA which have been reluctant to label any particular condition as a disability without taking into account the affect of the condition on the individual. 2.     GINA recordkeeping regulations.  The EEOC also is expected to issue a proposed rule addressing recordkeeping requirements under the Genetic Information Nondiscrimination Act (GINA) within the next few months.  The proposed rule likely will amend existing regulations governing records under Title VII of the Civil Rights Act and the ADA to include records collected under the GINA. 3.     Reporting MSDs on OSHA Form 300.  OSHA wants to revise its recordkeeping and reporting regulation to once again require employers to report musculoskeletal disorders (MSDs) (such as carpel tunnel syndrome and other repetitive stress injuries) on the OSHA Form 300, the Log of Work-Related Injuries and Illnesses.  (As a reminder, OSHA requires employers with 11 or more employees, except employers in certain low-hazard industries, to maintain a log and summary of all “recordable” occupational injuries and illnesses throughout the year.  Employers in 56 low-hazard retail, service, finance, insurance, and real estate industries are exempt from this recordkeeping.  These logs must be posted in the workplace from February 1 through April 30 each year.)   When OSHA initially revised its Form 300 in 2001, it included a column for the separate reporting of workplace-related MSDs.  However, this requirement was delayed for two years and then removed entirely in 2003.        Since the revision was initially reported in OSHA’s 2010 regulatory agenda, HR and safety experts have speculated online that this change is an indication that regulating ergonomics issues is once again a priority at OSHA, after several years on the back burner under the Bush Administration, and could foreshadow a full-blown ergonomics regulation.  However, OSHA is officially saying only that it “has reconsidered” the need for a separate injury reporting column for MSDs and that it “believes that having aggregate data on” on MSDs “may help employers and workers track these injuries at individual workplaces.”  The agency issued a proposed rule adding the MSD column in January 2010.  However, because of an outcry from the business community, the agency recently temporarily withdrew the final rulemaking until it can hold meetings with small businesses to assess the impact of the change.  4.     OSHA Injury and Illness Prevention Program.  The Occupational Safety and Health Administration (OSHA) also is moving forward with a rule requiring all employers to implement an “Injury and Illness Prevention Program.”  According to the DOL/OSHA abstract describing the rule, OSHA would require employers to plan, implement, evaluate, and improve processes and activities that protect employee safety and health.  The agency indicates that the program is necessary to combat the 5,000 workplace deaths and 3.5 million recorded workplace injuries.  According to Dr. David Michaels, the Assistant Secretary of Labor for OSHA, in his comments in January 2011 for the 40th anniversary of OSHA, “this plan would make it mandatory for employers to develop a plan to find and fix their workplace hazards — and not just the hazards covered by OSHA standards, but all recognized hazards (his emphasis).” 5.     NLRA posting requirement.  All employers may soon have to include a new poster in their workplace explaining to employees their rights under the National Labor Relations Act (NLRA).  While most employers understand the NLRA to be the federal law that protects unionized employees, the law actually protects nonunion employees as well.  The Act gives nonsupervisory employees the right to self-organize; to form, join, or assist labor organizations; to bargain collectively through their own representatives; and to engage in concerted activities for collective bargaining or other mutual aid or protection.  Nonunion employers can get caught in NLRA claims when they take action against employees who act together to complain about policies and procedures involving the terms and conditions of employment, such as pay issues and work conditions.  This new rule would require you to post a notice explaining the NLRA to your employees both in the workplace where notices are customarily posted and to post it electronically (for example on your Intranet or by email).      Stay tuned.  HR Matters will keep you posted on developments regarding these new regulations and will incorporate their requirements into the Personnel Policy Manual. 

Retaliation Claims Are Number One With EEOC (2/11)

The EEOC received almost 100,000 claims in FY 2010.  Find out which claims were filed most, and the eight things you can do to avoid being the target of the agency.

A record number of discrimination claims were filed with the Equal Employment Opportunity Commission (EEOC) in fiscal year (FY) 2010, and among those, retaliation claims were the most popular.  The EEOC is the federal agency responsible for enforcing employment discrimination laws including Title VII of the Civil Rights Act (Title VII), the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act (GINA).  While the EEOC attributes the high number of claims to increased diversity in the workplace coupled with added EEOC enforcement staff and more outreach to employees, employment law attorneys and other HR experts blame the weak economy and a soft job market.  According to the agency’s latest statistics released last month, 99,922 claims were filed with the EEOC in FY 2010, and the agency collected over $404 million in monetary benefits for aggrieved employees.  Below is a breakdown of the charges and eight tips to prevent claims in your workplace. Retaliation Claims First, Race a Close Second Traditionally, race discrimination claims have been filed the most with the EEOC, but retaliation claims have been in second place for the last few years.  Retaliation claims typically assert that an employer took some adverse action against an employee because the employee exercised a legal right, such as filing a discrimination claim.  Courts often rule in favor of employees in the retaliation part of their lawsuits, even when the underlying discrimination claim is dismissed.  Although the EEOC’s press release reporting the FY 2010 numbers indicates that this is the first year retaliation claims exceeded race claims, the agency’s own statistics show that retaliation claims exceeded race claims for the first year in FY 2009, though only by 34 claims (33,613 retaliation claims versus 33,579 race claims).  For FY 2010, retaliation claims accounted for 36,258 of the claims filed, followed by 35,890 race discrimination claims. Disability Claims Increased Thanks to Change in Disability Definition Allegations of disability discrimination increased the most, up 17.3% from FY 2009, and these claims accounted for 25.2% of the total number of discrimination claims filed.  This increase was expected as a result of the expanded definition of disability under the Americans with Disabilities Act Amendments Act of 2008, which took effect January 1, 2009.        The first claims under the GINA, prohibiting discrimination based on genetic information, also are reflected in FY 2010’s numbers.  The law did not take effect until November 21, 2009, so only 201 claims were filed under it.   It is difficult to predict how many claims will be filed next year, but it likely will take a few years for employees to understand their rights under the law.  EEOC Claims By Category Claims increased in every category as compared to FY 2009 when race, sex, and age discrimination and Equal Pay Act claims declined.  Here is a summary of the complaints filed (breakdowns total more than 100% because complaints often include multiple claims):                                               %         % of                FY ‘09          FY ‘10          change     2010 Total Total charges     93,277     99,922            7.1 Retaliation          33,613     36,258            7.9        36.3 Race                 33,579     35,890            6.9        35.9      Sex                      28,028     29,029            3.6        29.1 Disability            21,451     25,165           17.3        25.2 Age                      22,778     23,264            2.1        23.3 National Origin   11,134     11,304            1.5          11.3 Religion                3,386       3,790               11.9            3.8 Equal Pay Act          942       1,044               10.8            1.0 GINA               not in effect           201                 0.2

In addition, the EEOC’s total complaint numbers increased by 7.1%, allowing the agency to recover a record high of $319.4 million on behalf of employees in FY 2010 through administrative enforcement and mediation, up from $294 million in FY 2009.  In addition, the agency collected another $85.1 million through litigation, for a total of over $404 million for employees.  You can find the charge statistics on the EEOC’s Web site at http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm. Eight Steps to Prevent Discrimination Complaints  How can your organization avoid becoming an EEOC claim statistic when virtually every employment decision has the potential to result in a discrimination claim?  In particular, you should be concerned about those decisions that involve the subjective judgments of managers or supervisors, like promotion and transfer, training, and discipline decisions.  So, to prevent EEOC claims, you have to do more than simply adopt an equal employment opportunity (EEO) policy.  You also must reinforce your organization’s commitment by applying EEO principles to all decisions, terms, conditions, and privileges of employment, and all policies, communications, and actions.        Here are eight suggestions to help limit your exposure: 1.     Implement strong EEO policies and procedures.  While simply having an EEO policy is not enough (see the next seven tips below), you still have to make sure that you specifically state your organization’s commitment to equal employment opportunity for applicants and employees.  Your policy should cover all federal employment laws that cover your organization as well as any state and local EEO obligations.  Currently, federal law prohibits discrimination based on race, religion, color, sex, age, national origin, disability, military status, and genetic information.  State laws often cover other categories as well, such as marital status and sexual orientaton. 2.     Train supervisors and managers to make decisions based on performance, skills, and experience, and not on group stereotypes.  Pay special attention to your hiring, discipline, and termination processes.  For example, review application forms and train interviewers about inappropriate questions; discipline consistently; and follow specific termination procedures to ensure good decisions. 3.     Make sure that managers follow your policies and procedures consistently.  You do not necessarily have to treat every employee exactly the same, but you should treat “similarly situated” employees (those with similar jobs, performance histories, and length of employment) as consistently as possible, or have business-related reasons for inconsistencies. 4.     Review disciplinary and termination actions before implementing them.  In particular, involuntary terminations should be reviewed before implementation by the HR department or someone at least one level of management above the immediate supervisor to ensure that discharge is the appropriate course of action. 5.     Document all employment decisions to show the nondiscriminatory reasons for the actions and explain the decisions to affected employees.  You should provide an accurate accounting of the facts behind the decision and any steps taken prior to the disciplinary action (such as counseling sessions and warnings to improve).  These records can be a critical last line of defense if you have to justify your actions or defend a lawsuit.  6.     Give employees an opportunity to complain to you.  Encourage use of any internal complaint resolution procedures offered by your organization.  Some employers set up a site on their Intranets so that employees can lodge complaints internally.  If you can get your employees to complain to you, you have a better chance of solving problems and avoiding government agency or court action. 7.     Make sure you respond to complaints.  It is not sufficient just to have a complaint process, since discrimination laws also require you to respond to these complaints promptly.  Many courts have held employers liable because they did not respond to incidents of discrimination that they knew or should have known about.  (Harassment complaints often are lost on this point.)  So, you should investigate every complaint and come to some resolution that you communicate to the complaining employee.   8.     Implement and enforce clear “no retaliation” policies so that managers and coworkers understand the seriousness of the issue.  For example, harassment, equal employment opportunity, and complaint policies should state plainly that you prohibit retaliation against employees who make complaints or provide information about discrimination or other protected activity.  Managers should be trained to know what actions can be interpreted as retaliatory.