“Changing Tides in Employment Law” by Christiaan D. Horton

It is no surprise that employment law is strongly influenced by the Federal and state agencies charged with enforcing administrative agendas, and we have experienced a heightened attention to this area of the law in recent years. 2015 will be no different and promises to bring continued strategic enforcement of the myriad of employment laws that we all must follow. This is illustrated by the Strategic Enforcement Plan (SEP) adopted by the Equal Employment Opportunity Commission (EEOC) in 2012. The SEP has several key components that employers must keep in mind as they navigate workforce issues.
According to the SEP, the EEOC has continued significant enforcement of equal pay laws and efforts targeted at eliminating barriers in the recruitment and hiring process. New guidance has been issued regarding background checks, arrest and conviction records and the role that information can play in hiring decisions. In March 2014, the EEOC and the Federal Trade Commission issued a “joint tips” guidance document on employment background checks. This guidance emphasizes that employers must obtain written permission from job applicants before getting background reports and explains that when people are turned down for a job or denied a promotion based on information in the background reports, they have a right to review the reports for accuracy. This “joint tip” position follows the EEOC enforcement guidance on the consideration of arrest and conviction records in employment decisions under Title VII issued on April 25, 2012. Although it is not mandatory, it does provide significant insight on the intentions of the EEOC on enforcing issues of this nature. The state of Texas is challenging the EEOC’s guidance positions which are articulated in a case filed May 9, 2014 in the 5th Circuit Court of Appeals (Docket No. 14–10949). As of print, we await decision on the validity of the EEOC’s issued guidance on criminal background checks.
Several high-profile cases have also exhibited the EEOC’s designed protection of immigrant, migrant and vulnerable workers in accord with its SEP. In addition, a targeted approach is underway to address emerging employment discrimination claims based on accommodations for pregnancy, LGBT, and the Americans with Disability Act Amendments (ADAA). In July 2014, the EEOC enforcement guidance on pregnancy discrimination and related laws was passed by the Commission by 3-2 vote which fell along party lines. Under this guidance, employers need to provide accommodations to pregnant workers in the same manner as disabled employees and state that pregnancy related complications may be ADAA disabilities.
Presently under review by our US Supreme Court is a 4th Circuit decision that held the Pregnancy Discrimination Act does NOT require employers to provide light duty to pregnant employees even if light duty is provided to disabled workers and those with worker’s compensation injuries. Young v. UPS, No. 12 –1226. Although not impacted by the record on appeal, UPS informed the Supreme Court through memorandum that its policy has been changed to provide pregnant employees with these accommodations also enjoyed by its disabled workers and those returning to work after injury.
An additional area of concern often encountered in employment claim resolution revolves around the EEOC’s desire to preserve employee access to the legal system by challenging overly broad waivers often contained in settlement and release agreements. Yes, this makes employment law attorneys very cautious in drafting enforceable waivers that will pass court scrutiny if challenged on this basis. Moreover, the EEOC also continues to target industries and business with systemic enforcement of anti-harassment laws and regulations which have been on a slight decline since 2009.
In contrast, Fair Labor Standards Act lawsuits remain at an all-time high. This could be the result of a more aggressive Division of Labor Wage and Hour Division enforcement, more state wage and hour laws now in place, or an increased awareness of employees and their attorneys of potential claims under this Act. Another contributing factor could also be the increase of technology and information sharing between agencies.
There is a more cooperative approach by regulators to share information across their agencies in the enforcement process, allowing them to cast a wider net over employers in the investigative process that often leads to case prosecutions.
Our current presidential administration also is focused on the expansion of overtime rights, and our President has made it clear that he intends to increase scrutiny for existing salaried executive positions that have previously enjoyed exempt status in overtime compensation. With the duties test tightening, an increase in minimum weekly salary necessary for exempt status is likely if this initiative is launched. There’s also a movement to hold employers jointly liable for employment claims in the franchisor-franchisee context which has caused considerable concern throughout the employer community. At the crux of this movement is the command and control that a franchisor exerts over its franchisee in employment matters.
This all reveals the changing dynamics and the ebb and flow of focused initiatives within the federal and state agencies charged with enforcing employment laws. No doubt, with the swing of control in our US Congress resulting from the mid-term elections, these issues will remain hotly debated as regulators continue to implement their strategic plans for future employment law enforcement. For additional information on these trends and what they could mean for your particular business, please contact us so we can help you navigate these turbulent waters.