A new requirement for Federal Contractors promotes pay transparency and gender and race equity takes effect in 2016 and will require the replacement of the Federal EEO poster.[wc_divider style=”dotted” line=”single” margin_top=”” margin_bottom=””]
President Obama issued Executive Order 13665 in 2014 to protect workers on federal contracts from workplace discrimination against workers and job applicants who share information about their pay and compensation.
What Will Change for Federal Contractors with Pay Transparency?
The OFCCP released the Final Rule, which will take effect January 11, 2016, and covers Federal Contractors with federal contracts valued at $10,000 or more.
The Final Rule amends the Equal Employment Opportunity order (EO 11246) to prohibit contractors from discharging or discriminating against any employee or applicant for employment because the employee or applicant inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant – except if the employee’s ‘essential job function’ gives the worker access to compensation information or if the worker’s function is to protect the privacy of personnel records.
Federal Contractors covered by the Final Rule will need to provide the EEO is the Law Poster Supplement to employees and applicants using employee manuals or handbooks, and either electronically or by posting the prescribed provision in conspicuous places beginning January 11, 2016.
The content from the supplement will be integrated with the “EEO is the Law” poster at some point in the future, yet to be determined by the Department of Labor.
GovDocs Compliance Counsel Anne Jakala, Esq. reminded employers that if the display the current EEO is the Law poster, they are in compliance until the Jan. 11 deadline.
“Remember that it is only effective for new or modified federal contracts on or after January 11, 2016 and not for current contracts. Currently, Federal Contractors are required to post the OFCCP EEO is the Law Poster. At this time, this poster is shared with the EEOC’s EEO is the Law Poster (which is required to be posted by private employers). Therefore, at this time, they are the same poster.”
What Can Federal Contractor Employees Discuss About Pay?
Unless the worker is excepted based on essential job function, employees on federal contracts have the right to discuss compensation as defined in the Final Rule:
“…any payments made to, or on behalf of, an employee or offered to an applicant as remuneration for employment, including but not limited to salary, wages, overtime pay, shift differentials, bonuses, commissions, vacation and holiday pay, allowances, insurance and other benefits, stock options and awards, profit sharing, and retirement.”
Intranet Labor Law Postings for Remote Workers
According to the Final Rule, the OFCCP estimates that 99 percent of 500,000 Federal Contractor companies will post the required information electronically while only 1 percent will post the provision on employee bulletin boards.The OFCCP allowance for electronic postings is part of a larger trend among agencies who are recognizing the increase of remote workers (in other words, employees who work at home or offsite but who are still linked to company networks).
GovDocs has developed our Intranet Posting Program to help large employers provide the latest required postings for all employees – directly from the company intranet.
The GovDocs Intranet Poster Program automatically updates electronic labor law postings on your company’s intranet site securely. While other electronic posting update services force customers to manually download files every time a posting change affects their subscribed locales and then distribute them or post them to an intranet, delivers the most current GovDocs’ electronic files to your intranet in real time via a secure access link with no manual steps for your department.
An employee with a depressive disorder was legally fired for making threats of violence against his supervisors.[wc_divider style=”dotted” line=”single” margin_top=”” margin_bottom=””]
Timothy Mayo was a welder at PCC Structurals, Inc. in Oregon (Mayo v. PCC Structurals, Inc. 3:12-CV-00145-KI) from 1987 until 2011. Mayo began treatment for Major Depressive Disorder in 1999, and with the help of medication and treatment, he was able to work without incident.
Until 2010, that is.
That’s when Mayo and other employees started complaining to company management about a supervisor who they claimed bullied them and made work life miserable. The company set a meeting with Mayo and his co-workers to discuss the supervisor’s behavior.
Shortly after the meeting, Mayo made threatening comments to at least three of his co-workers, saying that he “felt like coming down to PCC with a shotgun and blowing off the heads” of the supervisor and another manager, even stating that he’d come in while the supervisors do their walk-throughs. Mayo’s co-workers reported the threats to his supervisor.
PCC suspended Mayo and contacted the police. A sheriff went to visit Mayo at his home and Mayo admitted to the threats that he made, said he owned several guns and had suicidal thoughts. Mayo was taken to the hospital and placed on a Police Officer Mental Hold, where he remained for six days.
PCC granted Mayo a two-month leave under the Oregon Family Leave Act (OFLA) and the Family and Medical Leave Act (FMLA). Mayo was cleared to return to work by his psychologist and nurse practitioner who believed Mayo’s threats were a symptom of his Major Depressive Disorder. They recommended that he be released back to his same position but under a different supervisor. Since it was not possible for Mayo to continue in his position without being supervised by one of the men he threatened, he was terminated.
When Lack of Disclosure Can Work Against You
Mayo claims that PCC violated Oregon’s disability discrimination statute when they refused to return him to his former position, failed to engage in the interactive process in order to provide him with a reasonable accommodation, and alleged that he was fired due to his disability. PCC maintains that Mayo never disclosed any disability. The judge ruled that Mayo wasn’t entitled to protection under Oregon’s statutes because he was unable to prove he could perform the ‘essential functions’ of his job with or without a reasonable accommodation:
“An essential function of almost every job is the ability to appropriately handle stress and interact with others. An employee is not qualified when that stress leads him to threaten to kill his co-workers in detail on more than one occasion.”
The judge also noted that “employers are not required to retain an employee whose unacceptable behavior threatens the safety of others, even if the behavior stems from a mental disability,” declining the notion that a reasonable accommodation in the form of a different supervisor would have worked. A different supervisor “would not have changed his inappropriate response to stress—it would have just removed one potential stressor and possibly added another name to the hit list.”
The judge therefore ruled that Mayo’s termination was justified.
When Does an Employee Need to Disclose a Disability?
There is no right time to disclose a disability. Every situation is different. Employees only need to disclose a disability if they need reasonable, work-related accommodation. The U.S. Department of Labor (DOL) suggests that employees make the decision to discuss their disability when it works for them – whether that is during the interview process, after a job has been offered, or not at all. Disclosure of a disability is protected by the Equal Employment Opportunity Commission (EEOC).[wc_divider style=”solid” line=”single” margin_top=”” margin_bottom=””]
Is the use of medical marijuana a justified reason for termination? Or is that a violation of the Americans with Disabilities Act? With the legalization of medical marijuana use in several states, drug screenings during the hiring process just got trickier.[wc_divider style=”dashed” line=”single” margin_top=”” margin_bottom=””]
EEOC vs The Pines of Clarkston
Jamie Holden, a licensed practical nurse, applied for a position as nursing administrator with The Pines of Clarkston, an assisted living facility, in Michigan. Holden was offered the position contingent on the results of a routine drug screen. The results of the drug screen revealed high levels of marijuana. Holden met with her supervisors to explain that she uses medical marijuana for her epilepsy. After being questioned about her epilepsy, Holden was told that they did not believe she could perform the job. A few days later Holden was terminated for violating the company’s drug-free workplace policy.
Holden filed suit with the Equal Employment Opportunity Commission (EEOC) and maintains that her termination was not related to her use of medical marijuana, but rather that she suffers from epilepsy – a violation of the Americans with Disabilities Act (ADA) and Michigan’s Persons with Disabilities Civil Rights Act (PWDCRA). The Pines maintains that Holden was fired because she violated their zero tolerance drug policy by using medical marijuana.
The Pines of Clarkston agreed to a four-year consent decree that resolves the dispute without admitting guilt. The company also agreed to pay $42,500 and institute policies regarding discrimination and training on the ADA.
Tips for Employers
This case got sticky because the candidate revealed a medical condition covered by ADA protections. With medical marijuana use expected to skyrocket, drug tests on their own may no longer be a reliable screening process and, in fact, may open a can of worms in terms of medical conditions. More court cases at the state and federal level eventually will shape employment drug-screening policies. In the meantime, when failing to hire a candidate or terminating an employee with a medical condition – whether the employee uses medical marijuana or not – employers must never make decisions based on the protected medical condition.[wc_box color=”info” text_align=”left”]
What Is the Americans with Disabilities Act?
The ADA became law in 1990 and bans discrimination against individuals with disabilities in all areas of life – employment, transportation, public accommodation, communications, and governmental activities.[/wc_box] [wc_divider style=”solid” line=”single” margin_top=”” margin_bottom=””]
Pregnant workers in Rhode Island are now protected from workplace discrimination in hiring, termination, job promotion, and benefits.[wc_divider style=”dotted” line=”single” margin_top=”” margin_bottom=””]
The State of Rhode Island expanded the protections granted by its Fair Employment Practices Act to include employees and job applicants with “conditions related to pregnancy, childbirth, or related medical conditions”.
The new posting informs employees and applicants of their right to request a reasonable accommodation for conditions related to pregnancy, childbirth and expressing breast milk.
Covered employers must “fill in the blanks” with the names of staff members who would process requests for reasonable accommodation and complaints of discrimination.
The new law is effective immediately.
WHAT IS THE RHODE ISLAND FAIR EMPLOYMENT PRACTICES ACT?
The Rhode Island Fair Employment Practices Act protects workers and job applicants at companies of four or more employees from discrimination in hiring, promotion, salary, terms and conditions, and termination based on:
- Sex (including pregnancy status and sexual harassment)
- Ancestral origin
- Age (40+)
- Sexual orientation or gender identity/ expression
RHODE ISLAND PREGNANCY DISCRIMINATION POSTING REQUIREMENTS
The Rhode Island Pregnancy Discrimination notice is required for all employers with four or more employees covered by the Rhode Island Fair Employment Practices Act. The posting must be:
- Displayed in a conspicuous location in each place of business and accessible to employees.
- Provided to new employees at onboarding.
- All employees by October 2015.
- Pregnant employees must be provided the notice no later than 10 days after notifying employers of pregnancy.
The new Rhode Island Pregnancy Discrimination notice is available as part of the GovDocs Rhode Island Labor Law Posting Compliance Package. Subscribers to GovDocs Labor Law News receive an additional 20% off their purchases when using coupon code BLOG20. The posting package includes all postings required by the State of Rhode Island for employers:
- Workers’ Compensation Act
- Notice To All Employees (Unemployment & Disability Insurance)
- State Minimum Wage Poster
- Parental & Family Medical Leave Act
- Ignoring This Poster Can Be Hazardous To Your Health (Right To Know)
- Sexual Harassment In Employment
- Whistleblowers’ Protection Act
- Pregnancy, Childbirth, and Related Conditions Discrimination
The NLRB found that an employer violated Section 7 of the NLRA when it fired an employee for discussing job security with a co-worker.[wc_divider style=”dotted” line=”single” margin_top=”” margin_bottom=””]
A vending-machine route driver left work early one Friday without notifying management, which is a violation of company policy. That weekend, she noticed a local ‘help wanted’ ad for a vending-machine route driver. She assumed it was her company that had placed the ad and that she was going to be fired.
When she returned to work the following Monday, she and another route driver discussed the ad. She asked her co-worker if he thought the ad meant their company was going to fire someone, but the co-worker thought she was implying he was going to be fired. The second driver went to the owners of the company and expressed his concern about losing his job.
The owner assured him that he would not be fired and asked why he was worried. The other route driver mentioned his conversation about the ‘help wanted’ ad. The company eventually fired the first driver – the one who ducked out of work on Friday – for gossiping and telling other employees they were going to be fired.
The NLRB Steps In
In a 2-1 majority ruling, the NLRB found that the driver’s termination violated the National Labor Relations Act (NLRA) because discussion of job security concerns with her co-worker were “inherently concerted,” and therefore considered protected concerted activity, even though there wasn’t any evidence that they were “engaged in with the express object of inducing group action.”
Conversations among employees are generally protected when they consider group action. However, the contemplation of group action is not required when the conversation is “inherently concerted.” Since job security discussions, like wages, are a vital conditions of employment, the NLRB held that they are inherently concerted.
The company was ordered to reinstate the driver with full back pay.[wc_box color=”danger” text_align=”center”]
Protected Concerted Activity and Section 7 of the NLRA
Section 7 of the NLRA protects employees who engage in concerted activity for the purpose of mutual aid or protection. Section 8 of that Act makes it unlawful for an employer to “interfere with, restrain, or coerce” an employee for engaging in such activity.
What Does This Mean For Employers?
Determining whether employee activity is protected under the NLRA ultimately depends on the specific facts of each case. However, it is clear from recent NLRB rulings that taking corrective action based on work-related conversations among employees can lead to trouble with the NLRB.[wc_divider style=”solid” line=”single” margin_top=”” margin_bottom=””]
Things blow up after company punished female employee for complaining about unlawful discrimination and hostile work environment.[wc_divider style=”dotted” line=”single” margin_top=”” margin_bottom=””]
A male site superintendent at the Brunswick Nuclear Power Plant in South Carolina harassed a female planner who was hired to address a power outage. She notified company management, and according to her complaint, the site superintendent created a hostile work environment by being “aggressive, intimidating, sarcastic, and condescending” with her because she was a woman.
To the company’s credit, a vice president completed a relatively prompt investigation into the female worker’s complaint. To the company’s discredit, the Vice President fired her two days later.
The EEOC announced a settlement with the company on April 27, 2015. The company must pay $65,000 to the victim who was fired in retaliation for filing a complaint of workplace discrimination.
Retaliation against workers who lodge claims of workplace discrimination is illegal under Title VII of the Civil Rights Act of 1964.[wc_box color=”secondary” text_align=”left”]
Why do Workplaces Attack? Learn more about the Psychology of Workplace Retaliation. LEARN MORE[/wc_box]
Monetary fine: $65,000
- Provide annual training to all supervisors, managers, and employees, to prevent future retaliation.
- Provide names of employees who complained about discrimination and who were thereafter subjected to adverse employment actions.
- Post a notice regarding workers’ rights protected by the EEOC.
Lessons Learned from EEOC v. Newport News Industrial Corporation
- When a worker has lodged a discrimination claim, an employer must be very cautious about any action that might be perceived as an adverse workplace action (such as termination or demotion) – even after concluding an investigation.
- Document, investigate, and resolve every claim of discrimination.
- Consider hiring third-party investigators to probe discrimination claims.
If your job is highly interactive, telecommuting may not qualify as a reasonable accommodation.[wc_divider style=”dotted” line=”single” margin_top=”” margin_bottom=””]
EEOC vs. Ford Motor Company
Jane Harris worked as a resale steel buyer for Ford Motor Company from 2003 to 2009. Harris suffered from Irritable Bowel Syndrome (IBS), which was often debilitating and caused numerous absences. In 2008, Harris missed an average of 1.5 days per week and in 2009, was absent more than she was present. Harris’s frequent absenteeism started to affect her job performance. Her supervisors tried working with her through the interactive process to find a suitable solution.
Harris was offered several accommodations, including the opportunity to work a flex-time schedule and telecommute as needed on a trial basis. Yet, her performance continued to deteriorate. She began to make mistakes and miss deadlines. Even though she was unable to meet her performance goals, Harris requested that she be allowed to telecommute up to four days per week. Harris’s supervisors did not grant her requested accommodation, but they did offer a few alternative accommodations such as; moving her desk closer to the restroom or looking for a job within the company that was better suited to telecommuting. Harris turned down the alternative accommodations. Her supervisors told her they would be willing to talk to her again if she could identify another accommodation. Harris claimed the denial of her request violated the Americans with Disabilities Act (ADA) and filed a discrimination charge with the EEOC. She was eventually terminated from her position.
When Telecommuting is Unreasonable
On initial review, a panel of three Sixth Circuit judges agreed with the EEOC and ruled that allowing Harris to work from home was a reasonable accommodation for her disability. This decision caused several state Chambers of Commerce to ask the full Sixth Circuit to re-evaluate the panel’s ruling—arguing the decision gave employees the power to decide when and where they work. The full Sixth Circuit agreed to rehear the case and eventually sided with Ford. The Court’s decision focused on the fact that Harris’s highly-interactive position was not conducive to extensive telecommuting. Harris herself admitted that at least eight of her ten job responsibilities could not be performed effectively from home. Although Ford allowed employees with certain positions to telecommute on a more regular basis, it had limits around telecommuting for resale buyers.
Under the ADA companies are required to provide reasonable accommodations to qualified employees with disabilities, if the employee is able to perform the essential functions of the job. The Court held that consistent, predictable, on-site attendance is ‘essential’ to be qualified for jobs requiring team work and interactive behaviors. Harris’s position had such requirements. The Court decided that Harris was not a ‘qualified’ individual for reasonable accommodation because “regular and consistent on-site attendance was essential for Harris’s position, and Harris’s repeated absences made her unable to perform the essential functions of a resale buyer.”
Suggestions for Employers
Employers should actively participate in the interactive process with the employee. Evaluate the specific circumstances of the request as well as the essential functions of the employee’s job to determine whether it can be completed remotely. If the position cannot be completed remotely, consider other reasonable accommodations that would allow the employee to successfully perform their job. The ADA requires employers to evaluate each accommodation request on its specific circumstances as well as on a case-by-case basis.
What is the Interactive Process for Reasonable Accommodation Requests?
The interactive process is the collaborative effort between the employer and employee to determine if the employee is able to perform required job functions and if the employer can make a reasonable accommodation for the employee’s disability.
If your company uses the interactive process to find reasonable accommodation for employees, document the process to demonstrate your good-faith effort to accommodate an employee’s disability.
What is Reasonable Accommodation?
Reasonable accommodation as defined by the U.S. Department of Justice is “any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions.”
What is the ADA?
The ADA became law in 1990. The ADA is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including employment, transportation, public accommodation, communications, and governmental activities. The ADA is enforced by the Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), the Department of Transportation (DOT), the Federal Communications Commission (FCC), and the Department of Justice (DOJ).
Of the roughly 97,000 discrimination charges that the EEOC receives every year, nearly 26 percent are related to claims of disability discrimination.
The City of San Francisco’s Human Rights Commission released a new posting required for all employers with a business tax registration certificate from the City or that hold contracts with the City.[wc_divider style=”dotted” line=”single” margin_top=”” margin_bottom=””]
The new San Francisco workplace discrimination notice informs employees and independent contractors that employers and persons engaging the services of an independent contractor are prohibited from discriminating against protected persons during recruitment, hiring, training, promotion and termination.
The posting points out that retaliation for filing complaints of discrimination is illegal and the employers must provide reasonable accommodation for persons with disabilities. Additionally, the posting reiterates that City contractors must offer equal benefits to employees with domestic partners.
Which San Francisco Workers are Protected from Employment Discrimination?
Article 33 of the San Francisco Police Code prohibits employers from taking adverse employment action against protected classes of individuals based on:
- Race / Color / National origin / Place of birth
- Marital status
- Religion / Creed
- Sexual orientation / Gender identity
- Weight / Height
An employer commits unlawful discrimination by refusing to hire, firing, under-compensating, or making less favorable terms of employment for workers protected by the Article.[wc_divider style=”dashed” line=”single” margin_top=”” margin_bottom=””]
San Francisco City Posters
The GovDocs San Francisco City Poster Package includes postings by required for employers and businesses providing contracted services to the City of San Francisco:
- San Francisco Minimum Wage (6-Language version)
- San Francisco Paid Sick Leave (6-Language version)
- San Francisco No Smoking
- San Francisco Health Care Security Ordinance (6-Language version)
- San Francisco Family Friendly Workplace (6-Language version)
- San Francisco Fair Chance Ordinance posting
- San Francisco Employment Discrimination is Against the Law
City Postings in the U.S.
Currently more than 40 cities require postings for some or all employers, and GovDocs monitors more those and a dozen more cities in the U.S. for new postings and posting updates. City posting coverage is just another reason why North America’s largest employers trust GovDocs for ongoing posting compliance.[wc_divider style=”solid” line=”single” margin_top=”” margin_bottom=””] [gravityform id=”2″ title=”true” description=”false”]
The EEOC alleges that a company discriminated against its employees by firing them when they reached the age of 62 and retaliated against another worker for resisting.[wc_divider style=”dotted” line=”single” margin_top=”” margin_bottom=””]
EEOC vs. Stack Brothers Mechanical Contractors, Inc.
Randy Virta and Karen Kolodzeske, employees of Stack Brothers Mechanical Contractors, Inc. worked at the company for 16 and 25 years, respectively. According to the Equal Employment Opportunity Commission (EEOC), Stack Brothers violated federal law by firing Virta and Kolodzeske when they reached the age of 62. The charge maintains Virta and Kolodzeske warned the company several times that their actions were illegal, but the owner ignored them. After Virta was fired, the company denied Kolodzeske a promised pay increase, demoted her, reduced her hours, and ultimately fired her once she reached 62, which is a violation of the Age Discrimination in Employment Act (ADEA).
The EEOC charged Stack Brothers with unlawful employment practices on the basis of age and retaliation. They are requesting that Stack Brothers pay Virta and Kolodzeske back wages (including benefits); punitive damages for pain, suffering, inconvenience, and humiliation; reinstatement; and front pay (including benefits). They also request an order barring the company from practicing future discrimination and retaliation against employees.
The Age Discrimination in Employment Act
The ADEA prohibits employment discrimination against individuals who are 40 years old or older. The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying or participating in any way in an investigation, proceeding or litigation under the ADEA.
The Role of the EEOC
The ADEA is enforced by the EEOC.
The EEOC “is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.”
They describe their role as having:
[wc_divider style=”solid” line=”single” margin_top=”” margin_bottom=””]
“…the authority to investigate charges of discrimination against employers who are covered by the law. Our role in an investigation is to fairly and accurately assess the allegations in the charge and then make a finding. If we find that discrimination has occurred, we will try to settle the charge. If we aren’t successful, we have the authority to file a lawsuit to protect the rights of individuals and the interests of the public.”