[Webinar Recap] Year One & Beyond: The Trump Administration and Its Effects on Labor and Employment Law

EEOC Increases Posting Violation Penalty Amounts

Employers: Required Federal Postings for Job Applicants

All employers are required to display three federal postings visible to job applicants.

Are you missing a key component of posting compliance in your business?

Depending on how your company manages job applicants, you may be missing three required Federal labor law postings that must be accessible to job applicants:

  • Equal Employment Opportunity is the Law
  • Family and Medical Leave Act (FMLA)
  • Employee Polygraph Protection Act (EPPA)

The ubiquitous requirement for “conspicuous location” comes into play here. If your labor law postings are in an area not accessible to job applicants, that location would not satisfy the conspicuous location requirement.

For example, many companies display workplace postings in break rooms or on bulletin boards next to time clocks, or in manager’s offices. But if an applicant never makes it past the reception area into area where posters are displayed, then the postings are not in a conspicuous location for applicants.

How to Meet Federal Requirements for Applicant Postings

  • Determine where applicants typically fill in and/or submit job applications at a physical location.
  • Determine if labor law posters are visible and accessible (in other words, “readable”) for job applicants.
  • If not, display the three required postings.

GovDocs offers a convenient 3-on-1 laminated posters containing the required postings for applicants. Subscribers to this blog can save 20% on all compliance poster purchases, including the GovDocs Federal Applicant poster, using coupon code BLOG20.

Focus on EEO is the Law Posting for Job Applicants

For the EEO is the Law posting, employers are encouraged to post the electronic notice on their web sites in a conspicuous location. However, electronic posting does not fulfill the obligation to physically post the required information.

Additionally, physical versions must be visible and accessible to applicants and employees with disabilities that limit mobility.

E-Verify and Right-to-Work Applicant Posting Requirements

If not, display the three required postings. If your locations participate in the E-Verify program, your participating locations will have to display the E-Verify postings “in a location that is clearly visible to any employees and applicants who will have their employment eligibility verified with E-Verify.” The posting must be displayed in English and Spanish.

Where poster display is not feasible, the employer must provide all applicants with copies of the E-Verify notices in English and Spanish with application materials.

Want Even More Information About Federal Posting Requirements?

Download the free GovDocs Federal Posting Guide to learn more about Federal postings. The Guide describes each Federal posting’s content, for whom it’s required, and the posting requirements. The Federal Posting Guide includes guidance for:

  • Postings Required for All Employers
  • Postings for Applicants
  • Federal Contractor Postings
  • Federal Construction / Transportation Projects
  • Postings by Industry / Worker Classification

Inappropriate Touching and Retaliation: Not a Good Mix

A female employee was repeatedly groped and grabbed by male supervisors and employees. When she complained, they retaliated against her.

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EEOC vs. Hufcor, Inc.

Katy Degenhardt was an employee of Total Quality Plastics (TQP), a division of Hufcor, Inc., as a machine operator from May 2007 to February 2013. According to the Equal Employment Opportunity Commission (EEOC), TQP violated federal law when they retaliated against and fired Degenhardt for reporting sexually harassing behavior.

The charge states that since at least April 2009, Hufcor engaged in unlawful employment practices by violating Section 703(a) of Title VII at its TQP facility in North Prairie, Wisconsin. Degenhardt was regularly subjected to sexual harassment and inappropriate touching by male supervisors and employees, creating a sexually hostile and offensive work environment. Degenhardt repeatedly reported the harassment to Hufcor, but the plant manager retaliated against her for her complaints by denying her breaks, assigning her difficult work, trying to reduce her wages, denying her advancement opportunities and taking other adverse actions.

Hufcor’s conduct violates the Title VII, which protects employees from individuals against employment discrimination on the bases of race and color, as well as national origin, sex, and religion. The EEOC filed suit after an attempt to reach a pre-litigation settlement through its conciliation process did not work.

Hufcor admits no wrongdoing, but has agreed to a consent decree in order to resolve the issue. The consent decree provides $120,000 in monetary relief to Degenhardt. It also requires Hufcor to train managers and supervisors with hiring and firing authority regarding the Title VII rights of applicants, employees, and former employees, with an emphasis on how to keep operations free from sexual harassment and on what constitutes unlawful retaliation. Every six months during the term of the consent decree, Hufcor must report any complaints of sexual harassment or retaliation involving alleged violations of Title VII to the EEOC.

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What is a Consent Decree?

A consent decree is defined as ‘an agreement or settlement to resolve a dispute between two parties without admission of guilt.’

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What Constitutes a Hostile Work Environment?

The U.S. Equal Employment Opportunity Commission (EEOC) defines a legal requirements for a hostile work environment as:

  • Actions or behavior that discriminates against a protected classification such as age, race, religion, sex, or disability.
  • Behaviors that last over time and suggest a pattern of abuse – not an off-color remark or two.
  • Hostile behavior, actions, or communication severe enough to create an environment that a reasonable person would find intimidating, hostile, abusive, and that disrupts work or interferes with an employee’s career advancement.
  • Hostile situations known to the employer but that the employer does not take measures to remedy.

Lessons Learned

Employers should provide harassment training for both supervisors and their employees, as well as make sure that rules are equally enforced across all pay grades without exception. Additionally employers should establish a clear process for workers to report harassment or discrimination.

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EEOC Case: Gender and Disability Discrimination

A female worker with a disability was demoted for questioning why her male counterpart earned a higher hourly pay rate. Then the employer refused to provide reasonable accommodation.

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Eloisa Schlaff worked at Taprite for 15 years, moving from an assembly position to a Quality Control Inspector. Then one day she learned that at least one male counterpart made more than three dollars per hour more than she did for the same work.

She was not amused.

Schlaff asked her supervisor about the difference between her pay and the male coworkers’ pay.

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READ MORE: Can Employees Discuss Pay?

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After stating her concerns about gender-based pay discrimination to management, the company demoted her and lowered her pay!

Schlaff, who suffers from rheumatoid arthritis and carpal tunnel syndrome, suddenly found herself in an assembly position that required repetitive tasks and strenuous physical movement that exacerbated her medical condition.

Did Eloisa Schlaff give up and go home?

Nope.

She went to work in the assembly role where she experienced severe pain and swelling in her hands caused by the repetitive motion.

She informed her supervisor of her medical condition and requested to be reassigned to work she could perform as a reasonable accommodation, but the company refused her request.

After receiving Schlaff’s complaint, the U.S. Equal Employment Opportunity Commission (EEOC), filed a gender, disability and retaliation-based discrimination lawsuit against Taprite.

The EEOC claimed that Taprite’s actions were unlawful and deprived Eloisa Schlaff of equal employment opportunities based on her disabilities (arthritis and carpal tunnel syndrome), but it got messy in court.

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Lessons Learned from EEOC v. Taprite

  • Audit pay rates by job function and classification to identify and correct disparities between workers performing comparable work.
  • Avoid taking punitive action against workers after they have expressed concerns about workplace discrimination.
  • Make a good-faith effort to understand workers’ requests for reasonable accommodation, and think creatively about solutions. Collaboration and cooperation go a long way with both employees and the EEOC.
  • Train managers on EEOC requirements annually.
  • Develop internal protocols for consistently addressing complaints of discrimination and requests for reasonable accommodation.

Case Outcomes

Monetary fine: $72,500

Employer must:

  • Ensure that its employment policies conform with the law.
  • Implement training to addresses sex and disability discrimination.
  • Post EEO notices at the workplace.
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Taprite denied wrongdoing, claiming they lacked “sufficient information to form a belief as to the truth of the factual allegations”. In other words, they were calling bull on Schlaff’s claims and didn’t believe Schlaff’s disability was legitimate.

The company slung some mud around, too, claiming Schlaff’s job performance was not satisfactory. They also denied refusing Schlaff’s request for reasonable accommodation. However, even one of Eloisa’s male coworkers could recommend the quality of her work:

“Eloisa has a great eye for inspection and a vast knowledge of Quality Control Procedures. She has a strong background in Lean Manufacturing and is a pleasure to work alongside of.”

In the end, the EEOC arm-wrestled Taprite into a settlement that avoided a judge’s ruling on the company’s culpability.

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Why Do Employers Retaliate? READ MORE

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Eloisa Schlaff is a nominee for the GovDocs 2015 Workplace Hero Award for asserting her rights and resolving workplace challenges in a constructive manner. Do you know of someone who you consider to be a Workplace Hero? Nominate them here!

 

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SCOTUS Rules in Favor of the Hijab and Religious Freedom

The U.S. Supreme Court ruled in favor of a Muslim woman who sued after being denied employment because she wore a hijab.

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In an 8-1 decision (EEOC v. Abercrombie & Fitch) the U.S. Supreme Court ruled that an employer may not refuse to hire an applicant based on religious beliefs and practices.

At issue was a black headscarf, or hijab, that Samantha Elauf wore during a job interview. Elauf did not specifically say that she is Muslim and was denied employment because the hijab violated the company’s “Look Policy” for sales staff, which prohibited employees from wearing head coverings. Elauf filed a complaint with the Equal Employment Opportunity Commission (EEOC) and Abercrombie & Fitch was charged with violating Title VII of the Civil Rights Acts of 1964.

Under Title VII, employers are prohibited from discriminating against employees on the basis of sex, race, color, national origin, and religion. Employers must provide a reasonable accommodation so long as that accommodation does not place “an undue hardship” on the company. The question was whether or not the employer was required to provide an accommodation even when the employee (or prospective employee) did not ask for one.

Ultimately the Supreme Court decided that “an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

Since this case, Abercrombie has made improvements to their store associate policies by replacing the “Look Policy” with a new dress code that allows associates to be more individualistic. Abercrombie has “a longstanding commitment to diversity and inclusion, and consistent with the law, has granted numerous religious accommodations when requested, including hijabs.”

What Employers Should Know

In 2014, employers paid more than $500 million in fines to settle all EEOC discrimination cases.

The EEOC has created a fact sheet on Religious Garb and Grooming in the Workplace to assist employees and employers in understanding their rights and obligations about accommodations for religious observances.

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