HR & the Law in the News
February 2016, Volume 15, Issue 2
Please enjoy this latest edition of FiveL Company's monthly e-newsletter, bringing you current news related to employment policies, practices and programs. 

The discounted, annual subscription to FiveL Company's 2016 webcast series is still available.  Get access to the 10 remaining webcasts for the price of 8, a savings of $98!! Pre-approved by HRCI and SHRM for 1.25 credits! Click here for more info or to register. 
Ignorance is Bliss?     
Workplace Retaliation: EEOC's Guidance
On June 17, 2015 the U.S. EEOC held a public hearing on "Retaliation in the Workplace: Cause, Remedies and Strategies for Prevention." Six months later, on January 21, 2016 the Commission published a draft guidance for public input to update and clarify its position on retaliation and related issued under EEOC-enforced laws. When finalized, the new guidance will supersede the related section (Volume II, Section 8) of the EEOC's current Compliance  Manual dated May 20, 1998. The EEOC invites comments and the public notice and comment period for the draft will end February 24, 2016.  

So what's it all about?  The following is a quick recap of some of the highlights of this 73-page draft guidance.  As the EEOC describes it, "It may be useful to...employers ...seeking to learn more about this area of the law."  
  • What is retaliation? It occurs when an employer takes an action against an individual in punishment for exercising rights protected by any of the EEO laws.
  • What individuals are covered? Applicants, employees or former employee.
  • What are the EEO laws? Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA); Title VI of the Americans with Disabilities Act (ADA); Section 503 of the Rehabilitation Act; the Equal Pay Act; and Title II of the Genetic Information Non-Discrimination Act (GINA). 
  • How does an individual exercise his or her protected rights? An individual may lodge an internal complaint to company management or human resources; lodge a complaint externally such as with the EEOC; simply state an intent to do one of the preceding; engage in passive resistance, such as by not following an instruction the employee believes to violate an EEO law; or support a coworker or another individual in exercising his or her protected rights. 
  • What type of employer action constitutes retaliation? The definition of an adverse action is broader here than under non-discrimination provisions and includes any action that is "materially adverse" that might well deter a reasonable person from engaging in protected activity.  The action does not have to be work-related or direct.  It can occur off company time and/or could be directed against a third party that is close to the individual who engaged in the protected activity; such as rescinding a contract with a company owned by the individual's spouse. 
EEOC's "Best Practices" - The Commission shared the following as examples of best practices for employers to utilize in an effort to minimize the likelihood of retaliation violations.
  • Written Employer Policies - Maintain a written, plain-language anti-retaliation policy with user-friendly examples of what (not) to do with examples, proactive steps, your company's reporting mechanism, and a clear explanation that retaliation can be subject to corrective action.
  • Training - Provide training for all managers, supervisors and employees on the employer's policy, including periodic refreshers in different formats and tailored to address any issues that have arisen in the workplace.
  • Provide anti-retaliation advise and individualized support for employees, managers and supervisors.  Begin any workplace investigation with information to all parties regarding the company's anti-retaliation policy. 
  • Proactively follow up. During an investigation check in with the parties to inquire if there are any concerns regarding potential or perceived retaliation.
  • Review consequently employment actions to ensure EEO compliance. Consider ensuring that an HR or EEO specialist or other resource individual review proposed employment actions of consequence (adverse employment actions like corrective action or discharge) to ensure they are based on "legitimate on-discriminatory, non-retaliatory reasons." 
Note 1The EEOC cites a study that found that "60% of private sector workers surveyed nationally reported that they were either contractually forbidden or strongly discouraged by management from discussing their pay with their colleagues."  The Commission warns that such policy or practice, "may deter protected activity...[r]reprisal for discussing compensation may implicate a number of different federal laws."  This issue, including equal pay is a "hot topic" at the national, state and local levels.  Ensure your policy and practice regarding compensation complies with the EEOC guidance as well as the National Labor Relations Act, which gives certain employees the legally protected right to discuss their wages, hours and other conditions of employment.

Note 2: There is more to come.  On January 29, 2016 the Commission announced proposed addition of pay data to the filing of annual EEO-1 reports. The proposal was published in the federal register The period for public notice and comment closes April 1st.  If you are an employer that is required to file this annual report (generally those with at least 100 employees plus covered government contractors with at least 50 employees) you may want to review this proposal and submit your comments to help shape this public policy regarding a mandatory disclosure of wages. 
Are You My Employer?
On January 20, 2016 the U.S. Department of Labor (DOL) published an Administrator's Interpretation (AI) letter clarifying how the Department will assess joint employment relationships under the Fair Labor Standards Act (FLSA).  

So What #1? How could this impact your business? If you use any third party vendor or supplier that might share control over your employees, such as a temp agency or contractor that oversees some aspect of your business operations, you might be a joint employer   If your company is contracted by another, such as to be a prime or sub-contractor and your company oversees, in part the work of your customer's or client's employees, then you might be a joint employer. If you are an entity that has multiple entities or affiliate organizations that might share common ownership or management you might be joint employers. Some examples might include:
  • A waitress who works for two restaurant that are owned by the same entity;
  • A nursing technician works at two separate nursing home and the nursing homes have an agreement to share workers 

So What #2? If you are a joint employer that means you carry with that relationship the potential liability for wage and hour compliance as well as violations engaged in by the other company with regard to their employees.  Take the example above where the nursing technician works for two separate nursing homes, 25 hours in one week at each facility.  If they are, in fact joint employers then the nursing homes must ensure that the technician is paid the proper overtime rate for the ten hours of overtime worked in that work week. If the technician is not properly paid, both employers may be liable. 

For more information visit the DOL's new web page on this topic including a Fact Sheet, FAQ's, graphic illustration and more.  

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5 Years in a Row!

I don't mind telling you; I was surprised...and then honored and grateful.  Thank you yet again to all readers for helping to make my book, "From Hello to Goodbye: Proactive Tips for Maintaining Positive Employee Relations" one of the SHRMStore's Great-8 best-sellers for the 5th year in a row!! 

Click here for a description or to get your copy, including information for certified HR professionals to earn 2.5 HRCI credits.

Thank YOU!!
Here it is...the infamous and oh-so-important disclaimer...This publication does not constitute the rendering of legal advice.  You should consult your company's employment or legal counsel for guidance on any particular issue.