Charges Continue to Increase With New Opps on the Horizon  

On November 15th the U.S. Equal Employment Opportunity Commission (EEOC) published a report announcing it had received 99,947 charges in fiscal year 2011, a record-breaking number in its 46-year history.  Simultaneously the EEOC reported that while the number of charges had increased, it had also reduced its backlog by ten percent e.g., it is processing more charges, faster.

On November 16th, the EEOC voted to approve and send to the Office of Management and Budget (OMB) its final rule regarding the standard for assessing charges filed under the Age Discrimination in Employment Act (ADEA).  The rule may place a greater burden on covered employers to show that an adverse employment action, such as a reduction in force that may have inadvertently impacted older workers more than younger workers, was based on reasonable factors other than age (RFOA).  Who bears the burden of proof in such cases has been in debate since the EEOC first published its proposed rule earlier this year.  Stay tuned as OMB has 90 days to consider the final rule at which time it will become available to the public.

Then on November 21st the President signed into law the VOW to Hire Heroes Act, which provides tax incentives to employers hiring certain unemployed veterans and providing training and education for certain veterans.  The Act also amends the Uniformed Services Employment and Reemployment Rights Act (USERRA) to prohibit discrimination with respect to terms, conditions and privileges of employment.  Effectively, this means the same standard for hostile environment charges or claims now applies to harassment based on military status as for other legally protected status under Title VII of the Civil Rights Act.

Proactive Tips? Review and update your staff and management training programs related to workplace inclusion and harassment prevention as well as related procedures and practices.  

1. Ensure employees are informed of their rights to be free from all forms of  unlawful harassment and discrimination, their resources for reporting and their shared responsibility to prevent and correct harassment by reporting - including to a resource outside the employee's chain of command where possible.  
2. Provide your management team members with supplemental training to ensure they understand their duty to observe, report, prevent and correct unlawful harassment and discrimination. 
3. Conduct proactive, demographic analyses and use metrics prior to taking adverse employment actions.  Know in advance your organizational trends, if any, with regard to how involuntarily terminations are impacting your workforce based on race, gender and age.   
  

 Hot Hits!! Education Corner

Upcoming Public Speaking Engagements (presented by Ms. Walters)

Click here for the full calendar of upcoming events.

Upcoming Client Training Programs

"Maintaining an Inclusive Workplace" 

"Managing Change in Changing Times" 

NEXT WEBCAST: 

No Webcast in December.

Discounted 2012 Annual Subscriptions now available through January 24, 2012. Subscribe for all 11 for the price of 8 - a $149 savings!!

Click here to subscribe.  

Next webcast, January 24th, 10:00 - 11:00 a.m. EST. Topic t.b.a.

Government Agencies Align to Seek Unlawful Employment Practices

On September 19th the U.S. Department of Labor (DOL) announced it signed a Memorandum of Understanding (MOU) with the IRS to enable the agencies to, "work together and share information to reduce the incidence of misclassification of employees, to help reduce the tax gap, and to improve compliance with federal labor laws."  In addition, ten states have signed a similar MOU with the DOL's Wage and Hour Division. "These MOUs will enable the Department to share information and to coordinate enforcement efforts with participating states in order to level the playing field for law-abiding employers and to ensure that employees receive the protections to which they are entitled under federal and state law."   

Is your state one of the ten?  Click here to find out. Until then, audit the methodology you use to assess whether any worker is properly classified as an independent contractor.  Note that many state laws, regulations and guidances do not use the same test as the IRS.  Note, too, the IRS no longer uses the old 20-factor test or 1099-rule.  For several years now it has used a three-factor test with multiple sub-factors.  You can also read a brief IRS pamphlet 1779 on the subject.

On November 15th the EEOC and U.S. Office of Federal Contract Compliance Programs (OFCCP) signed a new Memorandum of Understanding (MOU) providing, in part, that the agencies will share, "any information relating to the employment policies and/or practices of employers holding government contracts or subcontracts." This includes and may not be limited to: Affirmative Action Plans, annual employment reports, complaints and charges, investigative files, and more.

Has all this regulatory activity gone unnoticed? Not by Congress.  On November 3rd the House Subcommittee on Workforce Protections held a hearing to assess the "punitive enforcement agenda adopted by the Obama Department of Labor and its effect on workers and job creators." 

Stay tuned! As of this writing the National Labor Relations Board (NLRB) just adjourned a public meeting at 3:34 p.m. today, November 30th and is voting to change the union election procedures; you may have received my "Tweet" earlier this date with the link to the live webcast.  Click here for the latest news.  

Book Sales Exceed Projections! 

Ms. Walters' book, "From Hello to Goodbye: Proactive Tips for Maintaining Positive Employee Relations" was published in March 2011.  Last week the publisher reported that sales have exceeded their projections writing, "...there is no doubt this has been an excellent year for your book. It is one of our top sellers."

Have you ordered your copy yet?  Bulk rates are available and can provide a great resource to use in combination with your management training programs!   

 This newsletter does not constitute the rendering of legal advice. For legal guidance on any particular issue(s) you should consult with your company's legal advisor or contact FiveL Company directly.