Manage Retaliation Risks In Response To Updated EEOC Enforcement Guidance, Rising Retaliation Claims

August 31, 2016

U.S. employers, employment agencies, unions, their benefit plans and fiduciaries, and their management and service providers should move quickly to review and strengthen their employment and other practices to guard against a foreseeable surge in employee retaliation claims and judgements likely to follow the August 30, 2016 issuance by the Equal Employment Opportunity Commission (EEOC) of its new final  EEOC Enforcement Guidance on Retaliation and Related Issues and concurrently published Question and Answer Guidance(Guidance).

Updating and superceding 2008 guidance previously set forth in the Retaliation Chapter of the EEOC Enforcement Manual, the Guidance details the EEOC’s current policy for investigating and enforcing the retaliation prohibitions under each of the equal employment opportunity (EEO) laws enforced by EEOC, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA) and Title II of the Genetic Information Nondiscrimination Act (GINA) as well as the ADA’s separate “interference” prohibitions, which prohibit coercion, threats, or other acts that interfere with the exercise of ADA rights.  Among other things, the Guidance discusses :

  • What “retaliation means” and the scope of employee activity protected by the prohibitions against retaliation included in all laws enforced by the EEOC as well as the interference prohibitions of the ADA;
  • Legal analysis the EEOC will use to determine if evidence supports a claim of retaliation against an employer or other party;
  • Detailed examples of employer actions that the EEOC says may constitute prohibited retaliation; and
    Remedies available for retaliation.

Understanding and properly responding to the Guidance is critically important for employers and other subject to the EEO laws because in light of the substantial and growing liability exposures retaliation claims present and the likely that the issuance of the Guidance will further fuel these risks.

Even before the EEOC published the Guidance, retaliation and interference exposures were a substantial source of concern for most employers.  Employers, employment agencies and unions caught engaging in prohibited retaliation or intimidation in violation of EEO laws can incur compensatory and (except for governmental employers) punitive damage awards, back pay, front pay, reinstatement into a job or other equitable remedies, injunctive or administrative orders requiring changes in employer policies and procedures, managerial training, reporting to the EEOC and other corrective measures, as well as substantial investigation and defense costs.

These substantial liability exposures have become particularly concerning as retaliation and interference claims also have become increasingly common over the past decade. According to the EEOC, for example, EEO law retaliation charges have remained the most frequently alleged basis of charges filed with the EEOC since 2009 and in Fiscal Year 2015 accounted for 44.5 percent of all employment discrimination charges received by EEOC.
Since the EEOC’s issuance of the Retaliation Regs are likely to encourage additional retaliation or interference claims, employers, employment agencies, unions and their management, service providers and agents should quickly to evaluate the updated guidance provided in the Retaliation Reg and act to mitigate their exposure to retaliation retaliation and interference claims under these EEO laws.

Retaliation Risks Under EEO Laws

Federal EEO laws generally prohibit employers, employment agencies, or unions from punishing or taking other adverse actions against job applicants or employees for “asserting their rights” (often referred to as “protected activity”) to be free from harassment or other prohibited employment discrimination as well as certain other conduct. Such claims generally are referred to as “retaliation claims.”
Prohibited retaliation in violation of EEO laws occurs when an employer, employment agency or union takes a materially adverse action because an applicant or employee asserts rights or engages in certain other activities protected by the EEO laws.

To prevail in a retaliation claim, an applicant, employee or other individual generally must show that:

  • The individual engaged in prior protected activity;
  • The employer, employment agency or union took a materially adverse action; and
  • More likely than not, retaliation caused the adverse action by the employer, employment agency or union.

Persons Protected By EEO Retaliation Rules

EEO retaliation prohibitions protect both applicants and current and former employees (full-time, part-time, probationary, seasonal, and temporary) against retaliation under the EEO laws.  The retaliation prohibitions bar an employer from refusing to hire or otherwise taking adverse action against any current or former applicant or employee because of his EEO complaint or other protected activity under applicable EEO laws.  The EEOC interprets the retaliation rules as prohibiting an employer from giving a false negative job reference to punish a former employee for making an EEO complaint or engaging in other protected activity as well as as prohibiting an employer from refusing to hire or otherwise retaliating or discriminating against an applicant or employee based on a complaint made or other protected activity engaged against any a prior employer.  The Guidance also makes clear that the retaliation prohibitions apply regardless of an applicant or employee’s citizenship or work authorization status.

Protected Activity

“Protected activity” generally means either participating in an EEO process or reasonably opposing conduct made unlawful by an EEO law.

The prohibition against an employer retaliating against an individual for “participating” in an EEO process means that an employer cannot punish an applicant or employee for filing an EEO complaint, serving as a witness, or participating in any other way in an EEO matter, even if the underlying discrimination allegation is unsuccessful or untimely. As a part of these prohibitions, the EEOC says that an employer, employment agency or union is not allowed to do anything in response to EEO activity that would discourage someone from resisting or complaining about future discrimination. For example, depending on the facts of the particular case, it could be retaliation because of the employee’s EEO activity for an employer to:

  • Reprimand an employee or give a performance evaluation that is lower than it should be;
  • Transfer the employee to a less desirable position;
  • Engage in verbal or physical abuse;
  • Threaten to make, or actually make reports to authorities (such as reporting immigration status or contacting the police);
  • Increase scrutiny;
  • Spread false rumors, treat a family member negatively (for example, cancel a contract with the person’s spouse); or
  • Take action that makes the person’s work more difficult (for example, punishing an employee for an EEO complaint by purposefully changing his work schedule to conflict with family responsibilities).

The Guidance clearly states that the EEOC views participating in any capacity in a complaint process or other protected equal employment opportunity as protected activity which is protected from retaliation under all circumstances.  The EEOC views other acts to oppose discrimination also as protected as long as the employee was acting on a reasonable belief that something in the workplace may violate EEO laws, even if he or she did not use legal terminology to describe the issue. EEOC’s view is that protections against retaliation extend to participation in an employer’s internal EEO complaint process, even if a charge of discrimination has not yet been filed with the EEOC. The EEOC also takes the position that participation in the EEO process is protected whether or not the EEO allegation is based on a reasonable, good faith belief that a violation occurred. While an employer is free to bring these to light in the EEO matter where it may rightly affect the outcome, the Retaliation Regs state it is unlawful retaliation for an employer to take matters into its own hands and impose consequences for participating in an EEO matter.

In addition to prohibition for participation in protected activities, EEO law also prohibits retaliation against an individual for “opposing” a perceived unlawful EEO practice.  The EEOC construes prohibition against retaliation for opposition as prohibiting an employer or other covered entity from punishing an applicant or employee for communicating or taking other action in opposition of a perceived EEO violation if the individual acted reasonably and based on a reasonable good faith belief that the conduct opposed is or could become unlawful if repeated.

According to the EEOC, opposition also can be protected even if it is informal or does not include the words “harassment,” “discrimination,” or other legal terminology. A communication or act may be protected opposition as long as the circumstances show that the individual is conveying resistance to a perceived potential EEO violation such as, for example:

  • Complaining or threatening to complain about alleged discrimination against oneself or others;
  • Taking part in an internal or external investigation of employment discrimination, including harassment;
  • Filing or being a witness in a charge, complaint, or lawsuit alleging discrimination;
  • Communicating with a supervisor or manager about employment discrimination, including harassment;
  • Answering questions during an employer investigation of alleged harassment;
  • Refusing to follow orders that would result in discrimination;
  • Resisting sexual advances, or intervening to protect others;
  • Reporting an instance of harassment to a supervisor;
  • Requesting accommodation of a disability or for a religious practice;
  • Asking managers or co-workers about salary information to uncover potentially discriminatory wages;
  • Providing information in an employer’s internal investigation of an EEO matter;
  • Refusing to obey an order reasonably believed to be discriminatory;
  • Advising an employer on EEO compliance;
  • Resisting sexual advances or intervening to protect others;
  • Passive resistance (allowing others to express opposition);
  • Requesting reasonable accommodation for disability or religion;
  • Complaining to management about EEO-related compensation disparities;
  • Talking to coworkers to gather information or evidence in support of a potential EEO claim; or
  • Other acts of opposition.

In order for the protection against opposition to apply, however, the individual must act with a reasonable good faith belief that the conduct opposed is unlawful or could become unlawful if repeated.  Opposition not based on such a good faith belief is not protected. Employers should note that the EEOC takes the position that opposition by an employee could qualify as reasonable opposition protected against retaliation when an employee or applicant complains about behavior that is not yet legally harassment (i.e., even if the mistreatment has not yet become severe or pervasive) or to complain about conduct the employee believes violates the EEO laws if the EEOC has adopted that interpretation, even if some courts disagree with the EEOC on the issue.

Furthermore, an individual opposing a perceived violation of an EEO law is disqualified for protection against retaliation for his opposition unless the individual behaves in a reasonable manner when expressing his opposition. For example, threats of violence, or badgering a subordinate employee to give a witness statement, are not protected opposition.

Subject to these conditions, however, the Guidance states that retaliation for opposing perceived unlawful EEOC practices need not be applied directly to the employee to qualify for protection. If an employer, employment agency or union takes an action against someone else, such as a family member or close friend, in order to retaliate against an employee, the EEOC says both individuals would have a legal claim against the employer.

Moreover, according to the EEOC, the prohibitions against retaliation for participation and opposition apply regardless of whether the person is suffers the retaliation for acting as a witness or otherwise participating in the investigation of a prohibited practice regarding an EEO complaint brought by others, or for complaining of conduct that directly affects himself.

Materially Adverse Action

To fall within EEO law prohibitions against retaliation, the retaliatory actions must be “materially adverse,” which the Guidance defines to include any action that under the facts and circumstances might deter a reasonable person from engaging in protected activity.  This definition of “materially adverse” sweeps broadly to include more than employment actions such as denial of promotion, non-hire, denial of job benefits, demotion, suspension, discharge, or other actions that can be challenged directly as employment discrimination. It also encompasses within the scope of retaliation employer action that is work-related, as well as other actions with no tangible effect on employment, or even an action that takes place exclusively outside of work, as long as it may well dissuade a reasonable person from engaging in protected activity.

Whether an action is materially adverse depends on the facts and circumstances of the particular case. The U.S. Supreme Court has held that transferring a worker to a harder, dirtier job within the same pay grade, and suspending her without pay for more than a month (even though the pay was later reimbursed) were both “materially adverse actions” that could be challenged as retaliation. The Supreme Court has also said that actionable retaliation includes: the FBI’s refusing to investigate death threats against an agent; the filing of false criminal charges against a former employee; changing the work schedule of a parent who has caretaking responsibilities for school-age children; and excluding an employee from a weekly training lunch that contributes to professional advancement.

In contrast, a petty slight, minor annoyance, trivial punishment, or any other action that is not likely to dissuade an employee from engaging in protected activity in the circumstances is not “materially adverse.” For example, courts have concluded on the facts of given cases that temporarily transferring an employee from an office to a cubicle was not a materially adverse action and that occasional brief delays by an employer in issuing refund checks to an employee that involved small amounts of money were not materially adverse.

The facts and circumstances of each case determine whether a particular action is retaliatory in that context. For this reason, the same action may be retaliatory in one case but not in another. Depending on the facts, other examples of “materially adverse” actions may include:

  • Work-related threats, warnings, or reprimands;
  • Negative or lowered evaluations;
  • Transfers to less prestigious or desirable work or work locations;
  • Making false reports to government authorities or in the media;
  • Filing a civil action;
  • Threatening reassignment;
  • Scrutinizing work or attendance more closely than that of other employees, without justification;
  • Removing supervisory responsibilities;
  • Engaging in abusive verbal or physical behavior that is reasonably likely to deter protected activity, even if it is not yet “severe or pervasive” as required for a hostile work environment;
  • Requiring re-verification of work status, making threats of deportation, or initiating other action with immigration authorities because of protected activity;
  • Terminating a union grievance process or other action to block access to otherwise available remedial mechanisms; or
  • Taking (or threatening to take) a materially adverse action against a close family member (who would then also have a retaliation claim, even if not an employee).

ADA Interference Claims

In addition to the need to manage potential exposures for prohibited retaliation, employers, employment agencies and unions also should be careful to manage their exposure to potential liability arising from claims for wrongful interference and individual’s exercise of the disability rights or protections granted under the ADA.

The ADA generally prohibits disability discrimination, limits an employer’s ability to ask for medical information, requires confidentiality of medical information, and gives employees who have disabilities the right to reasonable accommodations at work absent undue hardship and like other EEO laws, prohibits retaliation. In addition to its prohibitions against retaliation, however, the ADA also more broadly prohibits “interference” with statutory rights under the ADA.

Interference is broader than retaliation. The ADA’s interference provision makes it unlawful to coerce, intimidate, threaten, or otherwise interfere with an individual’s exercise of ADA rights, or with an individual who is assisting another to exercise ADA rights.

In addition, the ADA also prohibits employers from interfering with ADA rights by doing anything that makes it more difficult for an applicant or employee to assert any of these rights such as using threats or other actions to discourage someone from asking for, or keeping, a reasonable accommodation; intimidating an applicant or employee into undergoing an unlawful medical examination; or pressuring an applicant or employee not to file a disability discrimination complaint.

Prohibited interference may be actionable under the ADA even if ineffective and even if the person subjected to intimidation goes on to exercise his ADA rights.

  • While acknowledging that some employer actions may be both retaliation and interference, or may overlap with unlawful denial of accommodation, the Guidance identifies the following actions as examples of interference prohibited under the ADA:
  • Coercing an individual to relinquish or forgo an accommodation to which he or she is otherwise entitled;
  • Intimidating an applicant from requesting accommodation for the application process by indicating that such a request will result in the applicant not being hired;
  • Threatening an employee with loss of employment or other adverse treatment if he does not “voluntarily” submit to a medical examination or inquiry that is otherwise prohibited under the statute;
  • Issuing a policy or requirement that purports to limit an employee’s rights to invoke ADA protections (e.g., a fixed leave policy that states “no exceptions will be made for any reason”);
  • Interfering with a former employee’s right to file an ADA lawsuit against the former employer by stating that a negative job reference will be given to prospective employers if the suit is filed; and
  • Subjecting an employee to unwarranted discipline, demotion, or other adverse treatment because he assisted a coworker in requesting reasonable accommodation.

According to the EEOC, a threat does not have to be carried out in order to violate the interference provision, and an individual does not actually have to be deterred from exercising or enjoying ADA rights in order for the interference to be actionable.

Strategies To Help Deter Or Rebut Retaliation Charges

Even though individuals claiming retaliation technically bear the burden of proving more likely than not that he suffered an adverse employment action more probably than not as a result of retaliation, an employer, employment agency or union charged with illegal retaliation frequently need to rebut or undermine a claimant’s evidence of retaliation by having and introducing admissible evidence that it a non-retaliatory reason for taking the challenged action such as evidence that:

  • The employer was not, in fact, aware of the protected activity;
  • There was a legitimate non-retaliatory motive for the challenged action, that the employer can demonstrate, such as poor performance; inadequate qualifications for position sought; qualifications, application, or interview performance inferior to the selectee; negative job references (provided they set forth legitimate reasons for not hiring or promoting an individual); misconduct (e.g., threats, insubordination, unexcused absences, employee dishonesty, abusive or threatening conduct, or theft); or reduction in force or other downsizing;
  • Similarly-situated applicants or employees who did not engage in protected activity were similarly treated;
  • Where the “but-for” causation standard applies, there is evidence that the challenged adverse action would have occurred anyway, despite the existence of a retaliatory motive; or
  • Other credible evidence showing a legitimate, non-discriminatory and non-retalitory motive behind the action.

It is important that employer other other potential defendants in retaliation actions recognize and take appropriate steps to create and retain evidence documenting these or other legitimate business reasons justifying the action prior to taking adverse action.  Many employer or other defendants charged with discrimination or retaliation discover too late that a rule of evidence commonly referred to as the “After Acquired Evidence Doctrine” often prevents an employer or other defendant from using documentation or other evidence of motive created after the adverse action occurs.  Consequently, employer and other potential targets of retaliation claims before taking the adverse action would be wise to carefully collect, document and retain the evidence and analysis showing their adverse action was taken for a legitimate, nonretalitory, nondiscriminatory reason rather than for any retaliatory purpose.

Other Defensive Actions & Strategies

Beyond taking care to document and retain evidence of its legitimate motivations for taking an adverse employment action, employers, employment agencies and unions interested in avoiding or enhancing their defenses against retaliation or interference claims also may find it helpful to:

  • Maintain a written, plain-language anti-retaliation and anti-interference policy that provides practical guidance on the employer’s expectations with user-friendly examples of what to do and not to do;
  • Send a message from top management that retaliation and interference are prohibited and will not be tolerated;
  • Ensure that top management understands and complies with policies against prohibited discrimination, retaliation and interference;
  • Consistently and fairly administer all equal employment opportunity and other policies and procedures in accordance with applicable laws in a documented, defensible manner;
  • Post and provide all required posters or other equal employment opportunity notices;
  • Timely and accurately complete and file all required EEO reports;
  • Clearly communicate orally and in writing the policy against prohibited retaliation and interference, as well as procedures for reporting, investigating and addressing concerns about potential violations of these policies in corporate policies as well as to employees complaining or participating in investigations or other protected activities;
  • Conduct documented training for all managers, supervisors and other employees and agents of the employer about policies against prohibited discrimination, retaliation, and interference including, as necessary, specific education about specific behaviors or situations that could raise retaliation or interference concerns, when and how to report or respond to such concerns and other actions to take to prevent or stop potential retaliation and interference;
  • Establish and administer clear policies and procedures for reporting and investigating claims or other indicators of potential prohibited employment discrimination, retaliation, interference including appropriate procedures for monitoring and protecting applicants and workers who have made claims of discrimination or have a record of involvement in activities that might qualify for corrective action;
  • Review performance, compensation and other criteria for potential evidence of overt or hidden bias or other evidence of potential prohibited retaliation or interference and take documented corrective action as needed to prevent improper bias from adversely corrupting decision-making process;
  • Conduct timely, well-documented investigations of all reports or other evidence of suspected discrimination, retaliation, and interference including any disciplinary, remedial or corrective action taken or foregone and the justification underlying these actions;
  • Obtain and enforce contractual reassurances from recruiting, staffing and other contractors to adhere to, and cooperate with the employer in its investigation and redress of the nondiscrimination, data collection and reporting, anti-retaliation and anti-interference requirements of equal employment opportunity and other laws;
  • Incorporate appropriate inquiries and other procedures for documented evaluating and monitoring that hiring, staffing, performance review, promotion, demotion, discipline, termination and other employment decisions and actions for evidence or other indicators of potential prohibited discrimination, retaliation, interference or other prohibited conduct and take corrective action as necessary based on the evidence developed; and
  • Designate appropriately empowered and trained members of the management of the employer to receive and investigate complaints and other potential concerns;
    Arrange for an unbiased third party review of the adverse action or the performance or other decision criteria, processes and analysis that the employer or other defendant contemplates relying on to decide and implement employment decisions for indicators of potential discriminatory, retaliatory or other illegal or undesirable biasand take corrective action as needed to address those concerns before undertaking employment actions;
  • Evaluate and allocate appropriate funds within the employer’s budget to support the employer’s compliance efforts as well as to provide for the availability of sufficient funds to investigate and defend potential charges or public or private charges of illegal discrimination, retaliation or interference through the purchase of employment practices liablity or other insurance coverages or otherwise;
  • If a manager or other party recommends an adverse action in the wake of an employee’s filing of an EEOC charge or participation in other protected activity, conducting or arranging for an another party to ndependently evaluate whether the adverse action is appropriate;
  • Proactively seek assistance from qualified legal counsel with the design and review of policies, practices and operations, investigation and analysis of internal or external complaints or other concerns about potential prohibited discrimination, retaliation or interference, review and execution of termination, discipline or other workforce events to mitigate discrimination, retaliation or interference risks as well as the defense of EEOC or private enforcement actions; and
  • Be ever diligent in your efforts to prevent, detect and redress actions or situations that could be a basis for retaliation or interference claims.

About The Author

Cynthia Marcotte Stamer is a noted Texas-based management lawyer and consultant, author, lecture and policy advocate, recognized for her nearly 30-years of cutting edge management work as among the “Top Rated Labor & Employment Lawyers in Texas” by LexisNexis® Martindale-Hubbell® and as among the “Best Lawyers In Dallas” for her work in the field of  “Labor & Employment,”“Tax: Erisa & Employee Benefits” “Health Care” and “Business and Commercial Law” by D Magazine.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, a Fellow in the American College of Employee Benefit Counsel, past Chair and current 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, a former ABA Joint Committee on Employee Benefits Council Representative and , 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, internal controls and regulatory compliance, change management and other performance and operations management 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.

For additional information about Ms. Stamer, see CynthiaStamer.com or contact Ms. Stamer via email here or via telephone to (469) 767-8872.

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal control and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press, Inc.™ resources at www.Solutionslawpress.com.

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information including your preferred e-mail by creating or updating your profile here. ©2016 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press, Inc.™. All other rights reserved.


Justice Department Sues Texas Bus Company For Illegal Discrimination Against Citizens When Hiring H-2B Program Workers

August 6, 2013

A federal lawsuit against Houston-based bus company Autobuses Ejecutivos LLC, d/b/a Omnibus Express, reminds U.S employers hiring foreign workers under the H-2B or other special worker visa programs to use care to ensure that they can prove that their need for foreign workers is not the result of recruitment and hiring practices that illegally discriminate against work-eligible members of the U.S. workforce already in the United States.

The Justice Department announced on August 6, 2013 that it and the Executive Office of Immigration Review’s Office of the Chief Administrative Hearing Officer (OCAHO) are suing Omnibus Express for allegedly violating the Immigration and Nationality Act’s (INA) anti-discrimination provisions by preferring to hire for bus driver positions temporary nonimmigrant visa holders on H-2B visas over work-eligible U.S. citizens, certain lawful permanent residents and other protected individuals.

H-2B Program Hiring Prohibited If Need Based On Illegal Discrimination

The H-2B program allows U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs only when there are not enough U.S. workers who are able, willing or qualified to do the temporary work.  While H-2B program hiring can be invaluable when a legitimate need exists, businesses contemplating or using the program need to be prepared to show their need to hire workers on H-2B visas is not the result of discriminatory hiring practices prohibited by the INA or other federal employment discrimination laws.

The INA generally protects work-eligible individuals in the United States, such as U.S. citizens, certain lawful permanent residents, refugees and asylees, from unlawful discrimination in hiring based on their citizenship status prohibiting employers from discriminating in hiring against these protected work-eligible workers based on their citizenship status.

Accordingly, while the H-2B program provides a valid opportunity to hire foreign workers consistent with the H-2B visa program requirements when in fact there are insufficient work-eligible, qualified applicants already in the U.S. to fill the position, employers hiring workers under the H-2B or other visa programs need to ensure that they are not inappropriately discriminating against U.S. citizens, permanent residents or other work-eligible individuals already in the U.S. in their recruitment and hiring practices when taking advantage of the H-2B program to hire workers.

In addition to the anti-discrimination provisions of the INA, hiring practices that discriminate in favor of hiring workers over other qualified applicants based on the respective citizenship, national origin, race or other protected status of the respective applicants or workers also can expose a business to liability under various other laws. In addition to suits brought by the Justice Department, prohibited discrimination by an employer under these other employment discrimination laws may expose a business to liability to actions brought by private litigants, the Equal Employment Opportunity Commission (EEOC), Office of Federal Contract Compliance (OFCCP) or other agencies, or both.

Omnibus Express Suit Highlights Risks Of H-2B Visa Hiring Need Based On Illegal Discrimination

The Justice Department complaint charges that Omnibus Express failed to fulfill this obligation.  It claims that Omnibus Express violated the INA by actively discouraging or failing to consider the applications of many qualified U.S. citizens and other protected individuals between September 2012 to February 2013 while at the same time petitioning the U.S. Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) for permission to hire up to 50 foreign workers on H-2B visas.    The Justice Department alleges that Omnibus Express violated the INA by hiring 42 H-2B workers during this period based on its representation to the DOL and USCIS that there were not enough qualified workers in the United States to fill the 50 bus driver positions when in fact, its practices illegally discriminated against work-eligible U.S. citizens, lawful permanent residents and other INA-protected individuals who could have filled the positions.

The Justice Department asks the court to redress these alleged violations of the INA by ordering Omnibus Express to pay back pay for injured parties and civil penalties prohibiting future discrimination by Omnibus Express, and ordering other injunctive relief.

INA Discrimination Prosecution Part Of Obama Administration’s Emphasis on Enforcing Discrimination Laws

Businesses also should keep in mind that the Justice Department’s prosecution of Omnibus Express for alleged illegal citizenship discrimination also is part of the Obama Administration’s larger agenda prioritizing the expansion of non-discrimination safeguards for protected classes and the enforcement of these non-discrimination laws.

Since Mr. Obama took office, the Administration has sought regulatory and statutory changes that expand the federal employment and other anti-discrimination for a broad range of groups. The Administration also continues to proactively seek to expand the individuals protected by these and other Federal anti-discrimination laws even as the Departments of Justice, Labor, Health & Human Services, Education, Housing & Urban Development and other federal agencies have expanded their investigation, prosecution and public outreach of these laws.

In light of these developments, businesses should recognize that this proactive anti-discrimination agenda makes it wise for private businesses and state and local government agencies to take greater care to prevent and position their organizations to defend against potential discrimination and retaliation claims under the INA and a broad range of other employment and other anti-discrimination laws.

While this activist agenda in the anti-discrimination law area merits tighter compliance and risk management for all organizations, government contractors or subcontractors particularly face heightened risk as a result of recent expansions to the reach and requirements of nondiscrimination requirements.

Act To Mitigate Citizenship, National Origin & Other Employment Discrimination Exposures

Accordingly, while the Omnibus Express particularly highlights the importance for businesses subject to U.S. law to use care before hiring foreign workers on H-2B or other special visas to ensure that they can demonstration the need for foreign workers does not stem from recruitment and hiring practices that illegally discriminate against applicants already in and eligible to work in the U.S. who would be qualified to fill those positions.

Furthermore, businesses should use care not to underestimate their exposure to liability from charges of illegal discrimination in violation of the INA or other federal employment discrimination laws.  Prohibited discrimination against workers based on citizenship, national origin or other prohibited grounds exposes employers to private lawsuits by workers seeking damages, attorneys’ fees and costs, and other remedies.  In addition to these private exposures, the suit against Omnibus Express shows that the readiness of the Justice Department to enforce the INA so that work-authorized individuals have equal access to employment in the United States free from prohibited discrimination based on citizenship.

Jocelyn Samuels, Acting Assistant Attorney General for the Justice Department’s Civil Rights Division affirmed this commitment in the announcement of the Justice Department suit against Omnibus Express, stating “We are committed to enforcing the INA so that work-authorized individuals have equal access to employment in the United States.”

Accordingly, all businesses should make the tightened risk management of their INA anti-discrimination risks part of a broader emphasis on the prevention and management of their organization’s discrimination exposures generally.

As part of these risk management efforts, organizations should:

  • Review and update their understanding of current anti-discrimination rules under the INA and other laws;
  • Evaluate the adequacy of and tighten existing practices and documentation to mitigate exposures with discrimination and other laws;
  • Update and tighten management controls, investigation and other procedures to promote compliance with anti-discrimination policies and identify and mitigate exposures arising in the course of operations;
  • Conduct well-documented periodic training on these and other anti-discrimination compliance and risk management practices; and take other actions to monitor and enforce compliance by staff, contractors and others with whom they do business.

For Help With Compliance & Risk Management and Defense

If you need help in auditing or assessing, updating or defending your organization’s compliance, risk manage or other  internal controls practices or actions, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 25 years of work helping private and governmental organizations and their management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; schools and other governmental agencies and others design, administer and defend innovative compliance, risk management, workforce, compensation, employee benefit, privacy, procurement and other management policies and practices. Her experience includes extensive work helping employers implement, audit, manage and defend against employment and other anti-discrimination and anti-retaliation, union-management relations, wage and hour, and other labor and employment laws, other regulatory requirements, procurement, conflict of interest, discrimination management, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions.  The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee, a member of the HR.com editorial advisory board, a past National Consultants Board Member and Region IV Chair for SHRM, past Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on workforce and risk management, reengineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions, and related matters.  She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications.

You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer here.  For information about engaging Ms. Stamer for representation, training or other assistance, contact Ms. Stamer directly at (469) 767-8872.

Other Resources

If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer including:

For important information about this communication click here. THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS.  ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.

©2013 Cynthia Marcotte Stamer, P.C.  Nonexclusive license to republish granted to Solutions Law Press, Inc.  All other rights reserved


Leprino Foods To Pay $550K To Settle OFCCP Charge Pre-Hire Screening Test Illegally Discriminated

July 19, 2012

The consent decree between the U.S. Department of Labor’s Office of Federal Contract Compliance Program and Leprino Foods Inc. resolving charges of systemic hiring discrimination at the company’s Lemoore West facility signed today by an Labor Department administrative law highlights the growing aggressiveness of the Labor Department in challenging employment screening practices. The Leprino Foods case highlights the advisability of businesses judiciously determining and documenting in advance the valid business justification for employment screening procedures such as pre-employment tests and background screening.

Leprino Foods is one of the largest producers of mozzarella cheese in the world and is based in Denver, Colo. Since 2005, the company has received contracts totaling nearly $50 million from U.S. Department of Agriculture’s Farm Services Agency to provide mozzarella and other dairy products to the federal government. The Leprino Foods consent decree settles OFCCP’s allegations that Leprino Foods’ use of a pre-employment test called WorkKeys to select hires for on-call laborer positions illegally discriminated against discrimination against African-American job applicants and applicants of Asian and Hispanic descent.

OFCCP charged Leprino Foods violated Executive Order 11246, which prohibits federal contractors and subcontractors from discriminating on the bases of race, color, religion, sex and national origin in their employment practices. The agency made its findings after a scheduled compliance review in which OFCCP investigators conducted interviews, analyzed company data and reviewed documents provided by the company. Through this review, OFCCP discovered that the administration of the WorkKeys exam had an adverse impact on minority job applicants for these specific positions. The agency also found that the exam was not job-related, as it tested applicants’ skills in mathematics, locating information and observation – skills that the OFCCP felt were not critical to the entry-level tasks performed by on-call laborers, such as inspecting products, monitoring equipment and maintaining sanitation at the facility.

Under the terms of the consent decree, Leprino will pay $550,000 in back wages, interest and benefits to 253 minority workers who were rejected for on-call laborer positions between January 2005 and October 2006 because they failed the WorkKeys exam. Additionally, the company has agreed to discontinue use of the test for this purpose, hire at least 13 of the original class members, undertake extensive self-monitoring measures and immediately correct any discriminatory practices. 

One of a growing number of challenges by the Obama Administration to pre-hire screening and credentialing procedures by employers as illegally discriminatory, the settlement reminds business leaders of the growing aggressiveness by the Obama Administration in challenging a broad range of pre-hire screening procedures such as pre-employment skills and other testing, background checks or the like.  In addition to challeging tests like that use by Leprino Foods, the OFCCP and EEOC under the Obama Administration also are challenging criminal background and other screening procedures.

In the face of these enforcement activities, businesses desiring to use these or other screening procedures should take steps to position themselves to defend against likely challenges and scrutiny. 

As part of these efforts, businesses should exercise care to conduct and retain carefully conducted and well documented analysis of the legitimate business justification for their use of tests, background checks or other credentialing procedures.  This analysis and documentation should be conducted prior to the implementation and use of these procedures to minimize the likely that the “after acquired evidence rule” or other similar arguments might be used to undermine the admissibility and effectiveness of these business justification arguments.  Businesses also should implement procedures to monitor for potential evidence of adverse impact or other improper bias against candidates in protected employment classes by the tests themselves or in their administration and implement well-documented processes to control for such bias.


HR Key Player In Managing Countrywide & Other US Discrimination Exposures

December 23, 2011

This week’s announcement by the U.S. Justice Department of the  largest residential fair lending settlement in history on December 21, 2011 highlights the widening scope of exposures that U.S. businesses face under a broad range of federal Civil Rights and other discrimination laws.   The settlement shows that discrimination risks are rising and that employment discrimination is only part of the problem. In addition to managing employment discrimination exposures in their employment practices, many businesses and business leaders also need to take steps to adequately recognize and provide policies, management controls and training to maintain compliance with federal disability and other discrimination laws prohibiting discrimination against disabled or other customers or others with whom they do business. 

Human resources and other management leaders should move quickly to help their organizations manage these risks and responsibilities.

Countrywide Settlement

This week’s Justice Department settlement with Countrywide Financial Corporation and its subsidiaries (Countrywide) provides for payment of $335 million in compensation to the more than 200,000 qualified African-American and Hispanic borrowers that Federal officials allege were victims of the widespread pattern or practice of illegal discrimination against qualified African-American and Hispanic borrowers by Countrywide while Countrywide served as one of the nation’s largest single-family mortgage lenders and originated more than 4 million residential mortgage loans.  Bank of America now owns Countrywide.

Federal officials charged Countrywide engaged in discriminatory mortgage lending practices against more than 200,000 qualified African-American and Hispanic borrowers from 2004 through 2008.  The Justice Department claimed it uncovered a pattern or practice of discrimination involving victims in more than 180 geographic markets across 41 states and the District of Columbia. These discriminatory acts allegedly included widespread violations of the Fair Housing Act and the Equal Credit Opportunity Act, and resulted in African-American and Hispanic borrowers being charged higher rates for mortgage loans – solely because of their race or national origin.

According to Attorney General Eric Holder, today’s settlement will compensate the more than 200,000 African-American and Hispanic borrowers who were victims of discriminatory conduct, including more than 10,000 African-American or Hispanic borrowers who – despite the fact that they qualified for prime loans – were steered into subprime loans. Subprime borrowers pay higher penalties and higher interest rates, have a greater likelihood of default and foreclosure than with prime loans, and other damages.

When announcing the settlement, Attorney General Holder reaffirmed the Obama Administration’s commitment to finding and prosecuting businesses that engage in illegal discriminatory practices.  To read Attorney General Eric Holder’s remarks, click here.

Discrimination Obama Administration Priority

Enforcing disability discrimination laws is a high priority of the Obama Administration Business leaders increasingly recognize the need to tighten procedures to manage disability discrimination risks.  

Human resources and other business leaders often recognize human resource related discrimination risks as requiring management.  The heightened emphasis of the Obama Administration on disability regulation and enforcement clearly is raising business responsibilities and exposures under these employment laws.  In order to manage these exposures effectively, however, it is important that businesses and their human resources leaders do not take for granted the adequacy of their current compliance and risk management efforts in light of the Obama Administration’s aggressive regulatory and enforcement agenda in this area.  See e.g.,  Affordable Care Act To Require Health Plans Cover Contraception & Other Women’s Health Procedures In 2012; EEOC Finalizes Updates To Disability Regulations In Response to ADA Amendments Act; Update Employment Practices To Manage Genetic Info Discrimination Risks Under New EEOC Final GINA Regulations; EEOC Attacks Medical Leave Denials As Prohibited Disability Discrimination; Labor Secretary Comments Highlight Federal Protections & Resources To Support Veteran’s Employment Rights

Employment discrimination risks are not the only discrimination exposures that U.S. organizations need to be concerned about, however.  The Countrywide settlement joins a lengthy list of settlements and other actions by the Obama Administration against businesses and government entities for alleged violations of U.S. civil rights and other nondiscrimination laws.  See, e.g. Businesses Face Rising Disability Discrimination Enforcement RisksNew Obama Administration Affirmative Action Guidance Highlights Organization’s Need To Tighten Nondiscrimination Practices; OFCCP Proposed Increased Disability Hiring Targets, Other Tougher Government Contractor Rules another Sign Of Rising Employment Discrimination RisksIncentives To Get Employee Into Wellness Education Requires Legal Risk Management; New School Racial Accommodation Guidance Gives Important Insights For Schools & Other Organizations On Obama Administration Affirmative Action Enforcement; Justice Department Landlord Suit Shows Businesses Face Rising Disability Discrimination Enforcement Risks; Big Penalty for Lender Shows Risks of Violating Military Service or Vets Rights; OCR Requires Rhode Island DHS To Provide Translation, Other Services For Limited English, Other Language Impaired Accommodations.

These regulatory, audit, enforcement and other actions show that private businesses and state and local government agencies alike should exercise special care to prepare to defend their employment and other business practices  against potential disability or other Civil Rights discrimination challenges on a broad range of fronts. 

HR Key Player

Human resources professionals are key players to efforts to effectively manage their organization’s overall discrimination risks and responsibilities by managing compliance throughout the organization.

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.  

Federal nondiscrimination and other laws have been expanded or modified in recent years by statutory, regulatory or enforcement changes, risk management efforts should begin with an assessment of the adequacy of existing policies and practices in light of the latest rules and enforcement actions.  Based on this assessment, business and governmental organizations should update policies and procedures as required, tighten documentation, and conduct ongoing, well-documented audits and training to mitigate exposures.

Human resources and other management leaders should position their organizations to guard against rising enforcement of these laws by updating policies, oversight and training to ensure that their workers and business partners recognize and know how to conduct themselves properly to fulfill responsibilities to persons with disabilities or others with whom the business deals who may be protected under Federal or state disability discrimination laws.  In addition to adopting and training workers on policies requiring compliance with these laws, businesses should include contractual provisions requiring compliance with these laws in leases and other relevant business contracts.  Most businesses also may want to provide and post information about processes that customers or others who may have a concern about the needs of persons with these special needs to position the business to address concerns that otherwise might go unnoticed until they arise to the level of an agency or other legal  complaint.

If you need assistance in conducting a risk assessment of or responding to a challenge to your organization’s existing policies or practices for dealing with the issues addressed in these publications or other compliance, labor and employment, employee benefit, compensation, internal controls or other management practices, contact attorney Cynthia Marcotte Stamer.

For Help With Compliance, Risk Management & Defense

If you need help in auditing or assessing, updating or defending your organization’s compliance, risk manage or other  internal controls practices or actions, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.  If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available at www.cynthiastamer.com.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 24 years of work helping employers and other management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; and others design, administer and defend innovative workforce, compensation, employee benefit  and management policies and practices. Her experience includes extensive work helping employers carry out, audit, manage and defend union-management relations, wage and hour, discrimination and other labor and employment laws, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions.  The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on management, re-engineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions, and related matters.  She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For more information about Ms. Stamer and her experience or to get access to other publications by Ms. Stamer see here or contact Ms. Stamer directly.

©2011 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press, Inc..  All other rights reserved.


Spectrum Healthcare NLRB Charge Settlement Highlights Need To Defend Against Possible Unfair Labor Practices & Other Union Exposures

May 20, 2011

The National Labor Regulations Board (NLRB)’s announcement of a settlement against a Connecticut nursing home operator this week in conjunction with a series of other enforcement actions highlight the need for businesses to tighten defenses and exercise other caution to minimize their organization’s exposure to potential NLRB charges or investigation.    As reflected by many of these enforcement acts, the exposures arise both from active efforts by businesses to suppress union organizing or contracting activities, as well as the failure to identify and manage hidden labor law exposures in the design and administration of more ordinary human resources, compliance, business operations and other policies and practices.

On May 17, 2011, the NLRB announced here  that Connecticut nursing home operator Spectrum Healthcare has agreed to settle a NLRB case involving multiple allegations of unlawful suspensions, discharges and unilateral changes in violation of the National Labor Relations Act and other federal labor laws by offering reinstatement and back pay to all discharged and striking workers and signing a new three-year collective bargaining agreement with its employees’ union, New England Health Care Employees Union District 1199, SEIU.

Along with the contract and reinstatement of all employees, the company agreed to pay $545,000 in back pay and pension benefits to employees who were harmed by the unfair labor practices, and to expunge any disciplinary records related to the case. As a result, all NLRB charges against the company have been withdrawn. Spectrum admits to no wrongdoing in the settlement.

The settlement, reached midway through a hearing before an NLRB administrative law judge in Connecticut and approved by the judge yesterday, ends a long-running dispute which grew into a strike by almost 400 employees at four nursing homes in Connecticut operated by Spectrum Healthcare, LLC.  Complaints issued by the NLRB Regional Office in Hartford alleged that, beginning in the fall of 2009, several months after the prior collective bargaining agreement expired, Spectrum discharged seven employees and suspended three others to retaliate against their union activities and to discourage other employees from supporting the union. In addition, one employee was discharged and seven others were suspended after the employer unilaterally changed its tardiness discipline policy without first bargaining with the union.

The complaints further alleged that in April 2010, employees at the four nursing homes — in Derby, Ansonia, Winsted, and Hartford — went on strike to protest the unfair labor practices. When the strikers offered unconditionally to return to work in late August, the employer refused to take them back. Under federal labor law, if a strike is called because of an unfair labor practice, employees are entitled to reinstatement after an unconditional offer to return to work.

The reinstated employees are due to return to the facilities this week.

The Spectrum Healthcare settlement is reflective of the growing number of NLRB enforcement orders against employers generally and health care providers specifically under the Obama Administration. The Obama Administration has close ties and has expressed its strong and open support for union and union organizing activities.  The adoption of a series of union friendly labor law reforms was one of the key campaign promises of President Obama during his election campaign.  While other legislative priorities and the change in the leadership of the House of Representatives appears to have slowed efforts to push through this agenda, it has not slowed the Administration’s efforts to support unions with strong enforcement activities.  Empowered by a difficult economic and job situation and an awareness of the Obama Administration’s strong support for union organizing and other activities, unions are stepping up organizing efforts and more aggressively challenging employers actions.

Over the past few months, public awareness of the Obama Administration’s aggressive enforcement agenda on behalf of unions has drawn new attention as a result of the widespread media coverage of NLRB actions challenging Boeings planned relocation of certain manufacturing jobs intervention in a planned relocation of certain manufacturing operations.  See, e.g., Acting General Counsel Lafe Solomon releases statement on Boeing complaint; National Labor Relations Board issues complaint against Boeing Company for unlawfully transferring work to a non-union facilityHowever, the Boeing and Spectrum Healthcare actions represent only the tip of the iceberg of the rising number of NLRB enforcement activities, most of which take place with little media or public attention.

Along side the Spectrum Healthcare and Boeing actions, in recent weeks, the NLRB also has been busy with several other enforcement activities.  For instance:

  • On May 9 2011, the NLRB issued a complaint against Hispanics United of Buffalo (HUB), a nonprofit that provides social services to low-income clients, that alleges that HUB unlawfully discharged five employees after they took to Facebook to criticize working conditions, including work load and staffing issues. The case involves an employee who, in advance of a meeting with management about working conditions, posted to her Facebook ; and
  • On May 17, the NLRB secured a temporary injunction from a U.S. District Court in San Jose California against San Jose area waste hauling company OS Transport LLC,   charged with engaging in unfair labor practices including the termination of a lead organizer and another Union supporter, retaliation against Union efforts in the form of unfavorable assignments, threats to Union supporters, and promises of improved treatment of employees who disavow the Union for the alleged purpose of defeating a union. o offer reinstatement to two drivers and restore full assignments to other drivers who had expressed support for a union during an organizing campaign. More Details here.,

In addition, in recent weeks, the NLRB also has:

 Amid this difficult enforcement environment, business leaders should exercise special care to prepare to defend their actions against both potential organizing efforts, to understand the types of actions and activities that may help fuel charges, and take steps to manage these and other union organization and other labor risks.  

For Help With Labor & Employment, Employee Benefits Or Other Risk Management and Defense

If you need assistance in auditing or assessing, updating or defending your labor and employment, employee benefits, compliance, risk manage or other  internal controls practices or actions, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 23 years of work helping employers; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; and others design, administer and defend innovative workforce, compensation, employee benefit  and management policies and practices. Her experience includes extensive work helping employers implement, audit, manage and defend wage and hour and other workforce and internal controls policies, procedures and actions.  The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on wage and hour, worker classification and other human resources and workforce, employee benefits, compensation, internal controls and related matters.  She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources including:

 

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here .

 ©2011 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.


EEOC Finalizes Updates To Disability Regulations In Response to ADA Amendments Act

March 24, 2011

Employers Urged To Tighten Disability Related Discrimination Risk Management

Employers should review and update their existing employment and employee benefit practices in response to updated regulations (Final Regulations) governing the disability discrimination rules of the Americans With Disabilities Act as amended by the ADA Amendments Act (ADAAA) that the Equal Employment Opportunity Commission (EEOC) will publish in the Friday, March 25, 2011 Federal Register.

On Thursday, March 24, 2011, the EEOC released an advance copy of the Final Regulations along with two Question-and-Answer documents about the Final Regulations to aid the public and employers – including small business – in understanding the law and new regulations. The Final Regulations, accompanying Question and Answer documents and a fact sheet are available on the EEOC website here .

The changes contained in the updated Final Regulations update the EEOC’s disability regulations in response to amendments made to the ADA by Congress as part of the ADAAA.  Like the ADAAA they implement, the Final regulations are designed to simplify the determination of who has a “disability” and make it easier for people to establish that they are protected by the Americans with Disabilities Act (ADA).

The Final Regulations and the ADAAA amendments they implement make it likely that businesses generally will face more disability claims from a broader range of employees and will possess fewer legal shields to defend themselves against these claims. Since these changes make it easier for certain employees to qualify as disabled under the ADA, businesses should act strategically to mitigate their ADA exposures in response to the Final Regulations.  Learn more about the Final Regulations and get suggestions for risk management of expanding disabilities discrimination exposures here.

For Help With Disability Discrimination Risk Management or Other Needs

If you need assistance in auditing or assessing, updating or defending your disability management or with other labor and employment, employee benefit, compensation or internal controls practices, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 23 years of work helping employers; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; and others design, administer and defend innovative workforce, compensation, employee benefit  and management policies and practices. Her experience includes extensive work helping employers implement, audit, manage and defend wage and hour and other workforce and internal controls policies, procedures and actions.  The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on wage and hour, worker classification and other human resources and workforce, employee benefits, compensation, internal controls and related matters.  She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources including:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here .

 ©2011 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.


DOL Plans To Tighten Employment Protections For Disabled Veterans & Other Disabled Employees Signals Need For Businesses To Tighten Defenses

December 18, 2009

By Cynthia Marcotte Stamer

U.S. businesses need to tighten their disability discrimination defenses in light of announced U.S. Department of Labor (DOL) plans to plans to tighten regulatory protections for and step up enforcement of laws protecting disabled veterans and other disabled employees.

Secretary of Labor Hilda Solis on December 7, 2009 announced plans to revise and tighten regulations implementing the disability discrimination provisions of Section 503 of the Rehabilitation Act of 1973, as amended, and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended (VEVRAA) as part of the DOL Regulatory Agenda for the upcoming year.  These laws require Federal contractors to take affirmative action to employ individuals with disabilities and disabled veterans. Both laws are enforced by the Department’s Office of Federal Contract Compliance Programs (OFCCP) and generally apply to federal government contractors and subcontractors. 

In furtherance of these goals, OFCCP recently published:

  • An Advance Notices of Proposed Rulemaking (ANPRM) concerning “The Evaluation of Recruitment and Placement Results under Section 503 of the Rehabilitation Act of 1973, as amended, (Section 503).” (ANPRM); and
  • The Evaluation of Recruitment and Placement Results under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended (VEVRAA) Notice of Proposed Rulemaking (NPRM).

In preparation for these regulatory changes, the OFCCP will be inviting public comment proposals to tighten these affirmative action requirements, holding town hall meetings, and inviting other input.

SECTION 503 ANPRM

As part of the ANPRM concerning disability discrimination in violation of Section 503, OFCCPE is compiling research and information barriers to employment that individuals with disabilities face.  Toward that end, it plans to review data that may be used for establishing numerical goals. The agency plans to conduct several Town Hall meetings through Spring 2010.  The ANPRM will invite the public to comment on ways to improve employment opportunities for individuals with disabilities. The ANPRM will seek comments on issues such as:

  • How affirmative action requirements can be strengthened so that employment opportunities for people with disabilities are measurably increased;
  • How federal contractors and subcontractors can improve monitoring of their employment practices to identify barriers to the employment of individuals with disabilities and improve employment opportunities; and
  • What specific employment practices have been verifiably effective in the recruitment.

VERRA NPRM

Concurrently, the VEVRRA NPRM is targeted at supporting the successful transition of servicemen and women into the civilian workforce, especially disabled veterans and those returning from Iraq and Afghanistan. OFCCP plans to design the proposed VEVRRA regulation to:

  • Increase employment opportunities for protected veterans with federal contractors and subcontractors; and
  • Strengthen affirmative action requirements so that federal contractors and subcontractors will be required to increase monitoring of employment practices in order to improve recruitment, hiring, training and other employment opportunities for veterans.

EMPLOYER STRATEGIES FOR MITIGATING DISABILITY DISCRIMINATION EXPOSURES

The OFCCP’s announcement of plans to seek to tighten affirmative action protections for veterans and other employees with disabilities reflects the heightened emphasis that the OFCCP and other federal agencies are placing the enactment and enforcement of protections for persons with disabilities under the Obama Administration. 

Following on the heels of Congress’ recent expansion of the availability of the employment disability discrimination protections of the Americans With Disabilities Act and new genetic information nondiscrimination requirements under the Genetic Information Nondiscrimination Act, the OFCCP’s plans to tighten existing OFCCP affirmative action requirements for persons with disabilities reflect the heightened disability discrimination risks for employers. 

U.S. businesses concerned about these developments may wish to pursue a variety of steps to help mitigate their risks.  For instance, government contractors and other employers may wish to consider:

  • Broadening efforts to recruit persons with disabilities where appropriate and document these efforts
  • Auditing existing employment, recruitment and other policies and practices for compliance with these evolving federal requirements concerning the employment rights of persons with disabilities;
  • Conducting well-documented training and other activities that demonstrate your company’s commitment/openness to the employment of veterans and others with disabilities;
  • Promptly conducting well-documented investigations into claims and other events that might suggest possible prohibited employment discrimination against persons with disabilities;
  • Monitoring OFCCP, EEOC and other regulatory and enforcement activities for the proposal or enactment of new requirements or enforcement positions;
  • Submitting comments or providing other input to federal regulators and legislators regarding regulations or legislation that might be of concern before it is enacted, where appropriate; and
  • Reviewing and tightening disability discrimination reporting and investigation procedures; and
  • Evaluating the adequacy of your company’s existing employment practices and other liability insurance in light of expanding liability exposures.

If you have questions about or need assistance evaluating, commenting on or responding to these or other employment, health or other employee benefit, workplace health and safety, corporate ethics and compliance or other concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer.  Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation and employee benefit, workplace safety, and other labor and employment, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.   For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here.  Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

GINA Discussion Topic At February HHS Advisory Committee on Genetics, Health & Society Meeting

Employee Benefit Plan Sponsors & Fiduciaries Urged To Review Bonding, Credentials of Staff & Service Providers Under ERISA

Added IRS Guidance For Correcting Employment Tax Overpayments Released

Labor Department To Expand Employee Benefits, Wage & Hour, OSHA & Other Reporting & Disclosure Requirements & To Implement Other New Employee Benefit Regulations

Preventive HR Strategies to Minimize Post Holiday Celebration Legal Hangovers

IRS Publishes Table For Determining Qualified Plan Covered Compensation for Purposes of Code § 401(l)(5)(E)

PBGC Expands Pension Benefit Protection For Military Service Members As Justice Department Files 22nd USERRA Military Leave Lawsuit Against An Employer Since January

Rising Defined Benefit Plan Underfunding & Changing Rules Create New Obligations & Risks For Business

Justice Department Suit against MasTec Advanced Technologies For Violating Army Reserve Member’s Rights Highlights Expanding Employer Military Leave Risks & Liabilities

Employer H1N1 Virus Risk Management Requires Employer Care To Manage Virus Risks Without Violating Employment Discrimination or Other Laws

New GINA Genetic Information Based Employment Discrimination & Confidentiality Mandates Take Effect

SHRM Urges American’s To Oppose HR 3962, The Affordable Health Care For America Act

Businesses Cautioned To Strengthen Investigation & Employment Practices To Minimize Potential Exposure To Retaliation Claims In Light Of Recent Supreme Court Retaliation Decision

OFCCP To Apply Special Procedures, Heightened Scrutiny To Equal Employment Practices of Government Contractors, Subcontractors On ARRA Funded Projects

US and UK Agree to Share Information & Cooperate On Pension Security As US Defined Benefit Plan Sponsors Face Tough New Defined Benefit Plan Funding Requirements

Congress Considering Extending & Expanding Group Health Plan COBRA Subsidy Mandates On Heels of Enactment of Expanded Military Leave-Related Family Leave Mandates

EEOC Prepares To Broaden “Disability” Definition Under ADA Regulations

Tighten Employment, Ethics & Internal Controls Policies & Practices To Minimize DOJ & Other Antitrust Exposures

OSHA Final Rule Updates OSHA Personal Protective Equipment Standards

“Disability” Definition Not Retroactive, Employer Action Needed To Manage Post 1/1/2009 Risks

For important information concerning this communication click here.   If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

©2009 Cynthia Marcotte Stamer. All rights reserved.