Jana BatesOffice of Human Resources

Manager of HR Regulatory ComplianceTexas Woman’s University

Are You Ready for Tomorrow?

Higher Education HR Related Issues

• Human Resource’s role in higher education:– Acting as strategic partner,– Focusing on tactical planning,– Providing support and training for program

implementation, and– Addressing issues:

• Diversity, privacy, security, compensation, rewards, employee relations, benefits, retirement and retention programs, and mandated and elective training programs.

Lessons We Have Learned

• What’s Prohibited?– Discrimination or harassment based on race, sex, national

origin, color or religion,– Retaliation against an individual who engages in protected

activity, and– Disparate treatment or impact against a protected class.

• What is mandated?– Employment decisions made on non-discriminatory basis,– Equal access to training,– Equal pay for equal work,– Equal opportunity for hiring, promotions and advancement, – Entitlement to FMLA,– Reasonable accommodation under ADA, and – Veterans get their jobs and all benefits back under USERRA.

Change! Change! Change Again?

• We have studied the laws, attended seminars or webinars, written or revised policies, performed necessary training and suffered through HR audits to assure compliance.

• But, now we find that the focus, interpretations, guide- lines, explanations, or new case law have changed what we are expected to do to be in compliance.

What Employers Can Expect in the Next Four Years

• The President will not be able to push through much in the way of legislation with the GOP in control of the House – not a new problem for him.

• During his last term, his agenda was advanced in two ways:(1) by issuing Executive Orders, and (2) by having government agencies take expansive, aggressive positions on existing laws (rulemaking) .

• This is expected to continue in his second term.

What Employers can Expect in the Next Four Years

• Affordable Care Act. The Supreme Court has said it's constitutional, and Congress can’t repeal it.

– Transitional Reinsurance Program

• President's (labor and employment) legislative wish list:– Paycheck Fairness Act, which would make it much easier to bring

lawsuits for pay discrimination. – Employment Non-Discrimination Act (ENDA), which would

prohibit discrimination based on sexual orientation and gender identity.

– Employee Free Choice Act, which would have required recognition of unions through card-check without elections.

FIRST CONSIDER THEIR STATISTICS AND THEN EXAMINE THE NEW AGENDA OF THE EEOC

Equal Employment Opportunity Commission

EEO Statistics FY 1997 FY 2010 FY 2011 FY 2012 # of

Increase% of

Increase

Total Charges 80,680 99,922 99,947 99,412 18732 23%

Religion 1,709 3,790 4,151 3,811 2102 123%

Retaliation - All Statutes 18,198 36,258 37,334 37,836 19638 108%

Retaliation - Title VII only 16,394 30,948 31,429 31,208 14814 90%

National Origin 6,712 11,304 11,833 10,883 4171 62%

Disability 18,108 25,165 25,742 26,379 8271 46%

Age 15,785 23,264 23,465 22,857 7072 45%

Race 29,199 35,890 35,395 33,512 4313 15%

GINA 201 245 280 79 39%

Sex 24,728 29,029 28,534 30,356 5578 23%

Equal Pay Act 1,134 1,044 919 1,082 -52 -4%

Texas EEO StatisticsFY 2009 FY 2010 FY 2011 FY 2012

Total Texas Charges 8748 9310 9952 8929

% of Total US Charges 9.4% 9.3% 10.0% 9.0%

Retaliation – All 3415 3638 4080 3730

Race 2934 3142 3610 3037

Sex 2883 2835 2925 2738

Disability 1382 2085 2335 2246

Age 2110 2182 2121 2001

National Origin 1395 1354 1745 1303

Others 664 650 969 689

Federal Agency Agendas

• Equal Employment Opportunity Commission• The EEOC’s statement of Regulatory Priorities includes only one

substantive item: “Disparate Impact and Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act.” – Clarifies the meaning of the “reasonable factors other than age”

(RFOA) defense used against an Age Discrimination in Employment Act (ADEA) claims and the disparate impact burden of proof under the ADEA.

• Proposed rule to update race and ethnicity data collection method to match reporting instructions for the EEO-1 Report.

• Proposed rule amending its current Title VII and ADA recordkeeping regulations to add the Genetic Information Nondiscrimination Act (GINA).

EEOC -Association Discrimination

• U.S. Supreme Court expanded those protected under the retaliation provisions of Title VII and included employees who have a close family relationship to a person who has made a complaint of discrimination:

• Parents,• Sick spouses, or• Aging parents.

• US Supreme Court Ruled in Thompson v North American Stainless LP.

• Employers potentially may be held liable for taking adverse action against someone “associated with” the complainant.

EEOC – Caregiving Responsibilities

• Family Responsibilities Discrimination (FRD)Discrimination against employees based on obligations to care for family members

• The primary directives issued include:

– Development and dissemination of a “strong EEO policy” that addresses the types of conduct that may constitute discrimination;

– Training managers to recognize legal obligations;– Effective response to complaints of caregiver discrimination;– Providing clear assurance to caregiver/employees of protection

from retaliation for such complaints.

EEO – Beauty Bias

• Investigation of Marylou's Coffee for practice of hiring young attractive women to serve coffee.

• The EEOC's investigation was not triggered from a complaint; by a rejected applicant or by a fired employee.

• It is a "Commission-initiated investigation" conducted, according to the director of the EEOC's Boston office, because "it's possible that applicants or employees might not know that they have been discriminated against."

• Raises a troubling question:– Assuming no obvious forms of discrimination are

occurring, may an employer hire only good-looking employees?

EEO – Beauty Bias

• Mere unattractiveness does not qualify as a disability under the Americans with Disabilities Act.

• The definition of "impairment" includes cosmetic disfigurements but it excludes ordinary physical characteristics such as height, weight, eye color,

and hair color.

• According to the EEOC, only morbid obesity (defined as weight that is 100% in excess of the body norm) as does obesity that results from some physiological disorder (such as a thyroid condition), qualifies as an impairment.

EEOC - Criminal Background Checks

• Under Title VII of our civil rights laws, employers may not deny employment based on a conviction except when the offense is job-related.

• Prior convictions may be considered if job-related, according to the “Green” factors:1. The nature and gravity of the offense or conduct, 2. The time that has passed since the offense, conduct

and/or completion of the sentence, and3. How the job relates to the type of crime committed.

• Employers must also evaluate whether the applicant actually engaged in the alleged misconduct.

EEOC -Retaliation

• Retaliation occurs when an employer punishes an employee for engaging in legally protected activity.

• Retaliation can include any negative job action, o demotion, o discipline, o firing, o salary reduction, or o job or shift reassignment.

• Retaliation can also be more subtle. • As long as the employer's adverse action would deter a

reasonable person in the situation from making a complaint, it constitutes illegal retaliation.

EEOC -Retaliation

• Retaliation claims make up more than one-third of all EEOC charges.

– Retaliation claims are some of the easiest and most successful types of claims for plaintiffs to make.

– Other reasons:• New federal and state legislation regarding retaliation and

whistleblowing,

• Favorable court rulings for plaintiffs, and

• An increased interest by the EEOC, courts and the media.

• Causes of action for retaliation do not require a finding of discrimination pursuant to the statute.

EEOC -Retaliation• FEDERAL STATUTES WITH RETALIATION PROVISIONS:

– Title VII of the Civil Rights Act of 1964 (“Title VII”), – Age Discrimination in Employment Act (“ADEA”), – Americans with Disabilities Act (“ADA”), – Fair Labor Standards Act (“FLSA”), – National Labor Relations Act (the “NLRA”), – False Claims Act (the “FCA”), – Occupational Safety and Health Act (“OSHA”), – Sarbanes-Oxley Act (“Sarbanes-Oxley”) and, – Family and Medical Leave Act (“FMLA”)

EEOC – Application of Law to Domestic Violence

• EEOC released a Fact Sheet illustrating how Title VII and the ADA may apply applicants and employees who experience domestic or dating violence, sexual assault, or stalking.– An employer’s actions based on an employee’s experience with

domestic violence may constitute sex-based stereotyping.

• Employers might be required to provide a reasonable accommodation under the ADA for victims of sexual assault, domestic violence, or stalking. – Accommodations might include providing leave to allow the

employee to obtain treatment for depression or anxiety resulting from an assault.

What’s Next for EEOC? Strategic Enforcement Plan

• The agency proposes six national enforcement priorities for 2013 - 2016:– Eliminating barriers in recruitment and hiring,– Immigrant/migrant worker rights, – Enforcing equal pay laws,– Addressing “Emerging issues,"– Preserving access to the legal system, and – Preventing harassment through systemic enforcement

and targeted outreach.

What’s Next for EEOC? Strategic Enforcement Plan • New employment legislation• Global HR issues• Employee engagement• Work/life balance• HR Technology & Social Media• Increasing benefit costs• Available talent• Workplace flexibility – SHRM

survey• Flexible Work arrangements

Speculation on enforcement priorities:

The ADA Amendments Act. -- this law is a potential $$$ bonanza for the federal government since the amended ADA classifies virtually every person with a medical condition as "disabled."

LGBT (lesbian-gay-bisexual-transgender) coverage under Title VII. • May pursue on the basis of sex stereotyping.

Reasonable accommodations for pregnant women. • The EEOC's strategy appears to be to impose a reasonable

accommodation requirement, treating pregnant women the same as other employees with temporary medical conditions, which could mean providing light duty.

Federal Agency Agendas

• Department of Labor• DOL’s statement of regulatory priorities: the agency will

continue to implement rules pursuant to its “P3 Initiative - Plan/Prevent/Protect” regulatory and enforcement strategy that will require businesses to establish and enforce plans for identifying and remedying labor law violations.

• According to the agency, employers “who fail to take these steps to comprehensively address the risks, hazards, and inequities in theirworkplaces will be considered out of compliance with the law and, may be subject to remedial action.

P3 INITIATIVE – PLAN/PREVENT/PROTECT

All DOL agencies are expected to issue regulations requiring employers to take affirmative steps to ensure compliance. Includes a requirement that violations found by one agency will be immediately reported to the agency best equipped to take action and impose remedial sanctions.

DOL

Develop written plans (“Plan”);Create processes (“Prevent”); andtest the processes with designated compliance employees (“Protect”).

Department of Labor

"BRIDGE TO JUSTICE"

An employer will have to file a Freedom of Information Request (FOIA) request to obtain information from DOL.

DOL

The DOL will provide complainants with referrals to plaintiffs' attorneys and share the information obtained during their investigation with such attorneys.

Department of Labor

“RECRUITMENT DATABASE"

2013 Workforce Recruitment Program (WRP) database contains more than 3,000 profiles of postsecondary students and recent graduates with disabilities, including veterans.

DOL The DOL has launched a “Workplace Recruitment Database” comprised of potential hires with disabilities.

Department of Labor

Federal Agency Agendas

• The Office of Federal Contract Compliance Programs (OFCCP) intends to issue a number of proposed and final rules governing contractor affirmative action and nondiscrimination requirements.

• The OFCCP plans to propose new sex discrimination guidelines. According to the agency, current guidelines are “more than 30 years old and warrant a regulatory look back.”

• The agency is still considering plans for a new compensation data collection tool “to identify contractors likely to violate” sex- and race-based compensation discrimination laws.

Federal Agency Agendas

• President Obama has created a special task force consisting of the DOJ, the OFCCP, and the EEOC as well as other federal agencies, to “do whatever is within their power” to “investigate and eliminate unequal pay practices in the U.S.”

• Because the Equal Pay Act is enforced pursuant to the FLSA, the EEOC does not have to wait until a charge is filed in order to conduct a directed investigation of employers.

“REVISIONS TO REGULATIONS FOR AAPS"

• Voluntary self-identification of disability status,• Annual survey of workforce to determine disability status,• Priority consideration for disabled applicants, and• Specific requirements for reasonable accommodation including

mandated timelines and required steps.

OFCCP Quantitative affirmative action goal of 7% for individuals with disabilities

Office of Federal Contract Compliance Program

The Department of Justice (DOJ) has announced the creation of a new position dedicated exclusively to whistleblower protections.

Whistleblower Ombudsperson will be tasked with:• Training and educating DOJ employees, • Assuring whistleblower charges are thoroughly reviewed and

addressed, and• Monitoring all retaliation claim investigations.

DOJ

DEPARTMENT OF JUSTICE

Whistleblower Protections

• Dodd-Frank Wall Street Reform and Consumer Protection Act

– Includes an incentive program to encourage reporting of SEC violations, and

– Awards employee whistleblowers between 10-30% of a sanction that exceeds $1 million.

• Whistleblower Protection Enhancement Act - rewards and provide retaliation protection.

$104 Million - Just for Blowing the Whistle on a Tax Evader

• IRS Whistleblower Program, will reward people for solid information about a non-compliant taxpayer

• It just awarded $104 million to a former UBS employee who alerted the IRS to his company's tax evasion scheme with respect to its clients. • The $104 million was awarded, even though the former UBS

employee served time in prison for the role he played in the tax evasion!

ISSUED VETERANS AND ADA GUIDE FOR EMPLOYERS

USERRA requires employers to go further than the ADA by making reasonable efforts to assist a veteran in becoming qualified for a job, regardless of whether or not he has a service-connected disability.

USERRA Preferential treatment may be given to veterans with disabilities by public and private employers.

Uniform Services Employment & Reemployment Act

EXPECT FURTHER INCREASES TO MINIMUM WAGE

Living wage : wage necessary for an individual to meet basic needs for an extended period of time or a lifetime.Prevailing wage: the hourly wage, and benefits within a particular area.

FLSA (W&H) President Obama has indicated

he would like to see minimum wage increased to $9.50.

DOL – Fair Labor Standards Act - Wage and Hour

DOL – Fair Labor Standards Act - Wage and Hour

• The DOL’s Wage and Hour Division will issue a proposed rule to update the recordkeeping regulations.

• Will require all employers to advise workers in writing of their status as employee or independent contractor, state how their pay is computed.

• Will have to create a record for each worker addressing the required information and reissue it if status or pay changes.

W & H Crushes Other Categories in Litigation Trends

.

Fulbright & Jaworski LLP

Which types of cases has greatest increase in multi-plaintiff cases?

Retaliation

Religion

Sex

ERISA

Non-compete

Labor union

Age

Race

Wage and Hour

W & H Crushes Other Categories in Litigation Trends

.

Fulbright & Jaworski LLP

Which types of cases create the most monetary exposure?

Disability Discrimination

Race

Retaliation

Wage and Hour

Age

D.C. CIRCUIT COURT ruled that the 2012 recess appointments of three board members to the NLRB was unconstitutional

Lacking a quorum, all decisions in the last twelve months are in danger of being overturned.

The NLRB “will continue to perform [its] statutory duties and issue decisions” despite the Appeals Court's decision.

NLRB

National Labor Relations Board

National Labor Relations Board

• The Micro-Unit Issue• The NLRB ruled in favor of the International Association of

Machinists allowing a “micro-unit,” or historically-small unit, to proceed to election.

• The Ambush Election Rules• The NLRB issued rules in 2011 changing key provisions of their

election procedures: to shorten the time between an election petition and voting day.

National Labor Relations Board

• Confidentiality of Investigation

• The NLRB has taken the position that a blanket requirement of confidentiality during an

investigation of employee misconduct violates Section 7 of the National Labor Relations Act.

• Employment at Will Disclaimers

• An administrative law judge of the NLRB has ruled that an employment-at-will disclaimer violates employees' Section 7 rights to engage in protected concerted activity relating to changing their at-will status.

National Labor Relations Board• Social Media Policies• The board found that the

policy—which prohibited Costco employees from making statements on social media that could damage the company or other employees’ reputations— could chill employees’ free speech rights under the NLRA.

• Section 7• “Employees shall have the

right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…”

Several federal and state employment laws do allow for personal liability for violations. Federal laws that have been interpreted to hold HR decision-makers personally responsible include the:

The Fair Labor Standards Act, The Equal Pay Act,The Family and Medical Leave Act,The Consolidated Omnibus Budget Reconciliation Act, The Employee Retirement Income Security Act, and The Immigration Reform and Control Act.

PERSONAL LIABILITY

Federal Laws with Personal Liability

How much will you pay?

Prospective Legislation

• Employee Free Choice Act (EFCA) • Labor vs. Business• Make it easier for workers to unionize in the US• Allow workers to skip the process of a NLRB election and

unionize if a simple majority sign authorization cards. “card check”

• Eliminate secret-ballot elections if union gets 50% + 1 cards signed

• Still a concern in Congress. Four states have passed laws against EFCA and NLRB is suing them.

• Has not passed

Prospective Legislation

• Employment Non-Discrimination Act –ENDA • Major Title VII amendment adds gender identity and sexual orientation

as protected classes. – Has not passed • April 11 President Obama decided not to pursue an executive order

banning federal contractors from discriminating on the basis of sexual orientation or gender identity “at this time”.

• Paycheck Fairness Act • Equal Pay for Equal Work Forces employers to demonstrate that

differences in pay are based on factors other than sex. – Has not passed

• Healthy Families Act • This legislation would require most employers to provide all employees

with seven days of paid sick leave per year. – Has not been Passed

Management Responsibility

• Protect your employees, your company, and yourselves from liability, exposure, public relations nightmares, and possible punitive actions as a result of violations employment law.

• Best defense is:1. Knowledge of employment law and staying current on

new laws or interpretations,2. Understanding the application of the law, 3. Establishing a compliance program, and4. Assuring every employee is treated with dignity and

respect.

Elements of a Compliance Program

• Designation of a Compliance Officer or Contact Person.

• Written Policies, Procedures and Standards.• Implementation:

– Effective Communication, – Education, and – Training.

• Effective Complaint Process:– Open lines of communication,– Timely response to any complaints,– Thorough investigation, and– Discipline, if/when warranted.

Elements of a Compliance Program

• Risk Assessment:– Monitoring, – Auditing, and – Reviewing to identify problem areas.

• Respond appropriately and in a timely manner to detected offenses, and

• Develop and implement corrective actions. • Document, document, document!

•.

Tomorrow is Here!!!

WHAT’S NEXT?New employment legislation,Global HR issues,Employee engagement,Work/life balance,HR technology & social media,Increasing benefit costs,Available talent,Workplace flexibility, and Flexible work arrangements.

•.

Tomorrow is Here!!!

•.

Tomorrow is Here!!!

Advise executive managementParticipate in strategic planningRespond to employee complaintsConduct fair/thorough investigationsAvoid legal entanglementsCombat intermittent leave abuseManage personnel filesStamp out discrimination & harassmentAssure equal pay for equal workComply with all federal and state lawsImprove employee moraleReduce turnoverRecruit qualified/competent employeesAnd much more……..

Participate in strategic planning,Provide advice to campus management,Respond to employee complaints,Conduct fair/thorough investigations,Avoid legal entanglements,Combat intermittent leave abuse,Manage recordkeeping and records retention,Stamp out discrimination & harassment,Assure equal pay for equal work,Comply with all federal and state laws,

Improve employee morale,Reduce turnover,Recruit qualified/competent employees,And much more……..