In keeping with President Obama’s administration long agenda of expanding equal employment and discrimination protections and enforcement, the Obama Administration now is proposing new regulations that if adopted as proposed, would expand the equal employment and nondiscrimination protections applicable for individuals receiving services through federal apprenticeships and other programs or activities provided by partners at American Job Centers and other key workforce programs that aid jobseekers administered by the U.S. Department of Labor’s Civil Rights Center (CRC).
In a Notice of Proposed Rulemaking released by CRC on January 25, 2016, CRC proposed to revise its current regulations, which were originally adopted in 1999 both:
- To implement the expanded nondiscrimination and equal opportunity obligations made under Section 188 of the Workforce Innovation and Opportunity Act (WIOA) signed into law in July 2014; and
- To reflect the Obama Administration’s expansive interpretation, enforcement and other practices of protections for transgender, gender identity, pregnancy, limited English proficiency (LEP) and other individuals against discrimination implemented by the Obama Administration in its enforcement of other federal equal employment and other nondiscrimination laws.
WIOA Implementation Identified As Reason For Proposed Regulations
In the cases of the CRC’s proposed regulations, the CRC identifies its need to adopt regulations to implement the WIOA as the reason for its restatement of its equal opportunity regulations at this time.
The Obama Administration is using its adoption of implementing regulations for WIOA Section 188 to revise and update the CRC’s equal opportunity rules generally to reflect changes in the interpretation of federal employment and other nondiscrimination rules already adopted during Mr. Obama’s presidency in other federal equal rights and nondiscrimination laws and regulations.
WIOA Section 188 prohibits discrimination against individuals participating in any job training for adults and youth, apprenticeships, and programs or activities provided by partners at American Job Centers or other covered program or activity that receives financial assistance under Title I of WIOA because of the race, color, religion, sex, national origin, age, disability, or political affiliation or belief of the individual participating in the program and, for beneficiaries only, because of their citizenship status. The WIOA discrimination and equal opportunity rules apply to recipients of financial assistance under Title I of WIOA and to program partners at American Job Centers that offer programs or activities through the workforce development system including partners that conduct related programs or activities through the One-Stop delivery system such as Unemployment Insurance, Temporary Assistance for Needy Families, adult education, Trade Adjustment Assistance, and others. The CRC’s proposed regulations are the latest of the growing responsibilities and risks that private businesses and state and local government agencies increasingly face to lawsuits, agency audits and sanctions, program disqualification, and other enforcement actions under federal equal employment opportunity and nondiscrimination requirements, particularly in light of the expanded scope and applicability of disability and various other federal nondiscrimination laws implemented during the Obama Administration by statutory, regulatory, executive order or other federal action. The extension of these changes into the CRC regulations reflects the continuing commitment of the Obama Administration to implement and enforce these expansions as fully as possible before Mr. Obama leaves office.
Highlights of Proposed CRC Regulations
If adopted as proposed by the CRC, the proposed rule would update the equal opportunity and nondiscrimination requirements applicable to American Job Centers and other WIOA partners working within the workforce development system to:
- Align the equal opportunity and nondiscrimination protections for individuals in WIOA programs with current regulations and guidance issued by the Departments of Justice and Education, the Equal Employment Opportunity Commission and other federal agencies regarding the following equal opportunity and discrimination laws:
- Title VI and Title VII of the Civil Rights Act of 1964;
- Title IX of the Education Amendments of 1972;
- The Americans with Disabilities Act of 1990 and the ADA Amendments Act of 2008; and
- Section 504 of the Rehabilitation Act of 1973.
- Clarify that sex discrimination under the WIOA, as under the Pregnancy Discrimination Act of 1978, which amended Title VII of the Civil Rights Act of 1964, and Title IX of the Education Amendments of 1972, includes discrimination based on transgender status, gender identity, or sex-stereotyping as well as pregnancy, childbirth, and related medical conditions.
- Clarify that discrimination based on national origin may include discrimination because someone has limited English proficiency (LEP) and strengthen the ability of the Labor Department and private plaintiffs to enforce this expectation by requiring recipients and partners to:
- Record the primary language of applicants, participants and beneficiaries in their programs;
- Take “reasonable steps” to ensure that LEP individuals have meaningful access to aid, benefits, services, and training;
- Notify participants about these rights, including offering oral interpretation and written translation of both hard-copy and electronic materials in non-English languages.
- The Proposed Rule also would clarify which CRC views as “vital” documents required to be translated and include an appendix describing promising practices to help recipients comply with their legal obligations and includes the components of a plan to facilitate meaningful access for individuals with limited English proficiency.
- Change the equal opportunity notice or poster that the Labor Department requires recipients and partners to post to inform individuals participating in their programs and activities about their equal employment opportunity protections and rights to reflect these expanded rights and responsibilities by among other things, clearly state that “sex,” as a prohibited basis for discrimination, includes pregnancy, childbirth, and related medical conditions, transgender status, gender identity, and sex stereotyping and that discrimination against LEP persons may be a form of national origin discrimination.
- Promote the ability of the Labor Department and private plaintiffs to enforce compliance by among other things:
- Implementing clearer and broader descriptions of recipient and partner responsibilities, more effective Equal Opportunity Officers, and enhanced data collection;
- Expanding recipient and partner recordkeeping and requiring other actions that will make proof of violations easier;
- Requiring annual monitoring, instead of the current “periodic” monitoring and other increased enforcement in accord with the Pregnancy Discrimination Act of 1978, which amended Title VII of the Civil Rights Act of 1964, and in accord with Title IX of the Education Amendments of 1972.
CRC Proposal Reflects Broader Agency Regulatory & Enforcement Agenda For All U.S. Businesses & State & Local Agencies
While the CRC’s proposed regulations most directly impact those providing services or programs to jobseekers and other assistance under CRC administered programs, the proposed regulations also are yet another strong sign for private businesses and state and local government agencies alike of the need to step up their compliance and risk management in light of expanded responsibilities and enforcement of federal equal employment opportunity laws under the Obama Administration. As a result, all U.S. businesses as well as state and local government agencies should exercise special care to prepare to defend their actions against potential disability or other Civil Rights discrimination challenges. All organizations, whether public or private need to make sure both that their organizations, their policies, and people in form and in action understand and comply with current disability and other nondiscrimination laws. When reviewing these responsibilities, many state and local governments and private businesses may need to update their understanding of current requirements as well as strengthen oversight and investigation practices, tighten vendor contracts, explore insurance or other options for planning for funding costs of defending investigations, litigation or other enforcement actions, and other heightened compliance and risk management strategies and practices.
For Legal or Consulting Advice, Legal Representation, Training Or More Information
If you need help reviewing your group health plan or responding to these new or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, help updating or defending your workforce or employee benefit policies or practices, or other related assistance, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.
Recognized as a “Top” attorney in employee benefits, labor and employment and health care law extensively involved in health and other employee benefit and human resources policy and program design and administration representation and advocacy throughout her career, Cynthia Marcotte Stamer is a practicing attorney and Managing Shareholder of Cynthia Marcotte Stamer, P.C., a member of Stamer│Chadwick│Soefje PLLC, author, pubic speaker, management policy advocate and industry thought leader with more than 27 years’ experience practicing at the forefront of employee benefits and human resources law.
A Fellow in the American College of Employee Benefit Counsel, past Chair and current Welfare Benefit Committee Co-Chair of the American Bar Association (ABA) RPTE Section Employee Benefits Group, Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee, former Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, an ABA Joint Committee on Employee Benefits Council Representative and Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer is recognized nationally and internationally for her practical and creative insights and leadership on health and other employee benefit, human resources and insurance matters and policy.
Ms. Stamer helps management manage. Ms. Stamer’s legal and management consulting work throughout her nearly 30- year career has focused on helping organizations and their management use the law and process to manage people, process, compliance, operations and risk. Highly valued for her rare ability to find pragmatic client-centric solutions by combining her detailed legal and operational knowledge and experience with her talent for creative problem-solving, Ms. Stamer helps public and private, domestic and international businesses, governments, and other organizations and their leaders manage their employees, vendors and suppliers, and other workforce members, customers and other’ performance, compliance, compensation and benefits, operations, risks and liabilities, as well as to prevent, stabilize and cleanup workforce and other legal and operational crises large and small that arise in the course of operations.
Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce management operations and compliance. She supports her clients both on a real time, “on demand” basis and with longer term basis to deal with daily performance management and operations, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy. Well known for her extensive work with health care, insurance and other highly regulated entities on corporate compliance, internal controls and risk management, her clients range from highly regulated entities like employers, contractors and their employee benefit plans, their sponsors, management, administrators, insurers, fiduciaries and advisors, technology and data service providers, health care, managed care and insurance, financial services, government contractors and government entities, as well as retail, manufacturing, construction, consulting and a host of other domestic and international businesses of all types and sizes. Common engagements include internal and external workforce hiring, management, training, performance management, compliance and administration, discipline and termination, and other aspects of workforce management including employment and outsourced services contracting and enforcement, sentencing guidelines and other compliance plan, policy and program development, administration, and defense, performance management, wage and hour and other compensation and benefits, reengineering and other change management, internal controls, compliance and risk management, communications and training, worker classification, tax and payroll, investigations, crisis preparedness and response, government relations, safety, government contracting and audits, litigation and other enforcement, and other concerns.
Ms. Stamer uses her deep and highly specialized health, insurance, labor and employment and other knowledge and experience to help employers and other employee benefit plan sponsors; health, pension and other employee benefit plans, their fiduciaries, administrators and service providers, insurers, and others design legally compliant, effective compensation, health and other welfare benefit and insurance, severance, pension and deferred compensation, private exchanges, cafeteria plan and other employee benefit, fringe benefit, salary and hourly compensation, bonus and other incentive compensation and related programs, products and arrangements. She is particularly recognized for her leading edge work, thought leadership and knowledgeable advice and representation on the design, documentation, administration, regulation and defense of a diverse range of self-insured and insured health and welfare benefit plans including private exchange and other health benefit choices, health care reimbursement and other “defined contribution” limited benefit, 24-hour and other occupational and non-occupational injury and accident, expat and medical tourism, onsite medical, wellness and other medical plans and insurance benefit programs as well as a diverse range of other qualified and nonqualified retirement and deferred compensation, severance and other employee benefits and compensation, insurance and savings plans, programs, products, services and activities. As a key element of this work, Ms. Stamer works closely with employer and other plan sponsors, insurance and financial services companies, plan fiduciaries, administrators, and vendors and others to design, administer and defend effective legally defensible employee benefits and compensation practices, programs, products and technology. She also continuously helps employers, insurers, administrative and other service providers, their officers, directors and others to manage fiduciary and other risks of sponsorship or involvement with these and other benefit and compensation arrangements and to defend and mitigate liability and other risks from benefit and liability claims including fiduciary, benefit and other claims, audits, and litigation brought by the Labor Department, IRS, HHS, participants and beneficiaries, service providers, and others. She also assists debtors, creditors, bankruptcy trustees and others assess, manage and resolve labor and employment, employee benefits and insurance, payroll and other compensation related concerns arising from reductions in force or other terminations, mergers, acquisitions, bankruptcies and other business transactions including extensive experience with multiple, high-profile large scale bankruptcies resulting in ERISA, tax, corporate and securities and other litigation or enforcement actions.
Ms. Stamer also is deeply involved in helping to influence the Affordable Care Act and other health care, pension, social security, workforce, insurance and other policies critical to the workforce, benefits, and compensation practices and other key aspects of a broad range of businesses and their operations. She both helps her clients respond to and resolve emerging regulations and laws, government investigations and enforcement actions and helps them shape the rules through dealings with Congress and other legislatures, regulators and government officials domestically and internationally. A former lead consultant to the Government of Bolivia on its Social Security reform law and most recognized for her leadership on U.S. health and pension, wage and hour, tax, education and immigration policy reform, Ms. Stamer works with U.S. and foreign businesses, governments, trade associations, and others on workforce, social security and severance, health care, immigration, privacy and data security, tax, ethics and other laws and regulations. Founder and Executive Director of the Coalition for Responsible Healthcare Policy and its PROJECT COPE: the Coalition on Patient Empowerment and a Fellow in the American Bar Foundation and State Bar of Texas, Ms. Stamer annually leads the Joint Committee on Employee Benefits (JCEB) HHS Office of Civil Rights agency meeting and other JCEB agency meetings. She also works as a policy advisor and advocate to many business, professional and civic organizations.
Author of the thousands of publications and workshops these and other employment, employee benefits, health care, insurance, workforce and other management matters, Ms. Stamer also is a highly sought out speaker and industry thought leader known for empowering audiences and readers. Ms. Stamer’s insights on employee benefits, insurance, health care and workforce matters in Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, Modern Healthcare, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications. Ms. Stamer also regularly serves on the faculty and planning committees for symposia of LexisNexis, the American Bar Association, ALIABA, the Society of Employee Benefits Administrators, the American Law Institute, ISSA, HIMMs, and many other prominent educational and training organizations and conducts training and speaks on these and other management, compliance and public policy concerns.
Ms. Stamer also is active in the leadership of a broad range of other professional and civic organizations. For instance, Ms. Stamer presently serves on an American Bar Association (ABA) Joint Committee on Employee Benefits Council representative; Vice President of the North Texas Healthcare Compliance Professionals Association; Immediate Past Chair of the ABA RPTE Employee Benefits & Other Compensation Committee, its current Welfare Benefit Plans Committee Co-Chair, on its Substantive Groups & Committee and its incoming Defined Contribution Plan Committee Chair and Practice Management Vice Chair; Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and a current member of its Healthcare Coordinating Council; current Vice Chair of the ABA TIPS Employee Benefit Committee; the former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division; on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications. She also previously served as a founding Board Member and President of the Alliance for Healthcare Excellence, as a Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; the Board President of the early childhood development intervention agency, The Richardson Development Center for Children; Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a member of the Board of Directors of the Southwest Benefits Association. For additional information about Ms. Stamer, see CynthiaStamer.com or StamerChadwickSoefje.com or contact Ms. Stamer via email here or via telephone to (469) 767-8872.
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