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Nov 072012

image courtesy of CNN

The votes are in, and the Obama Administration has won a second term. Now that the election is over, we can begin to more forward. But what does forward look like?

To understand where we’re going, we need to know where we’ve been. Daniel Schwartz’s post “A Look Back at Obama’s (First) Four Years and Employment Law” provides a great summary of where we’ve been. Dan concludes that “with the notable exception of the NLRB, there really haven’t been a lot of changes to employment laws for the last four years.”

I agree with Dan – we saw the Lilly Ledbetter Fair Pay Act, new guidance from the EEOC on the use of criminal histories and credit checks, and federal protections for nursing mothers. Not the sweeping changes that some had anticipated.

But what will the next four years hold? I think there’s the potential for more significant change in the employment law and regulatory climate. Here are the five issues I’m watching:

  1. The Paycheck Fairness Act –  the gender pay gap was a priority issue during the last term, and will continue to be a priority. As a result of education and outreach campaigns by the Department of Labor, the public is more sensitive to this issue than ever before. The Paycheck Fairness Act still has significant support, and I think it will be reintroduced into Congress in the near future (most likely in April to coincide with Equal Pay Day). The question is, with a Republican-controlled House, will the Paycheck Fairness Act survive?
  2. OFCCP Compensation Data Collection Tool – there’s a lot about this that still needs to be hashed out and thought through, and it’s going to take time. OFCCP has a lot on its proposed regulatory plate right now, and it’s not clear whether four years will be enough time to finalize the Tool in light of everything else the Agency is working on and trying to enact.
  3. Disability Employment – also on the OFCCP’s agenda is a proposed utilization goal of 7% for individuals with disabilities. As with the Data Collection Tool, there are still a lot of loose ends here. A lack of reliable data regarding the employment of individuals with disabilities, employee’s reluctance to self-identify as an individual with a disability, and the skepticism of whether the goal will evolve into a quota are just three of the concerns here.
  4. Adverse Impact in Hiring – we’ve seen a great deal of interest from the EEOC on how the use of criminal histories, credit reports, and current employment status affect the hiring of women and racial minorities. The EEOC has issued guidance on the first two, and there was a bill introduced regarding discrimination against unemployed job applicants. As the nation struggles to get its people back to work, I think it’s likely we’ll see even more action on the adverse impact front. What protected groups (women, minorities, older individuals, LGBT, etc.) and what form(s) this will take is open for debate.
  5. FLSA / Wage and Hour – let’s face it, we have a staggering national debt. This, combined with the fact that nearly every employer – no matter how diligent – is exposed to wage and hour mistakes, is seen by some as an easy source of tax revenue for the IRS and penalty income for the Wage and Hour Division. Independent contractor misclasification, exempt / non-exempt classification, and other violations have been – and will remain – a big concern for employers.
Oct 122012

Ever heard news of a discrimination case and wondered why company officials didn’t see the “writing on the wall” before it was too late?

It seems one company saw the writing but paid no attention. A lawsuit has been filed against a national food distribution company alleging that supervisors ignored actual writing on the wall and condoned the discriminatory racist graffiti at their Iowa warehouse.

The EEOC filed suit on behalf of black employees at the Mason City warehouse of the MBM Corporation claiming supervisors failed to remove racist graffiti or take reasonable action to prevent it for three months after receiving complaints by a black worker last year.

According to the lawsuit, supervisors and members of management regularly used the men’s room where the graffiti appeared but supposedly ignored it. The suit states that, “the racist graffiti was not removed and no action was taken to discover the author of the graffiti, or to otherwise prevent future graffiti.”

Supposedly, employee Justin Green complained to a supervisor in May 2011 that a swastika and racial epithet were visible in the men’s room near a warehouse dock. A month later, he noticed that it had been blacked out, but new statements referencing the KKK and hatred of blacks had been added. That remained for another month, at which time the walls were cleaned partially obscuring the graffiti but not removing it.

Another month passed and Green was questioned by management about filing a complaint with the EEOC. According to the filed lawsuit, Green stated, “the graffiti remained clearly visible for at least three months and that he did not have to deal with it.” Apparently at least two other black employees had taken note of the graffiti, as well.

Soon after that, the men’s restroom was painted, finally covering and removing the graffiti, but according to the lawsuit, the lack of earlier action was perceived as the company condoning the racial harassment of Green and other aggrieved black employees.

The suit is aimed at holding the company accountable for its alleged “malicious and reckless conduct” by seeking damages to compensate for employee humiliation. Additionally, the EEOC is seeking orders which would require the company stop tolerating racial harassment by establishing and adhering to strict policies.

Image: Brooklyn criminal court building bathroom (2010)

Sep 212012

While the EEOC works diligently to enforce laws prohibiting employment discrimination, the agency also believes strongly in preventing such issues from arising in the first place and sees education as the first line of defense.

Committed to educating both employers and employees on discrimination and methods of prevention, the EEOC offers various training, education and outreach programs including Youth@Work, which aims to promote equal opportunity for America’s next generation of workers. Since its inception in 2004, nearly 6,600 events have been held reaching over 400,000 students, educators and employers.

The EEOC recently added to this national initiative by releasing a video and corresponding classroom guide to educate working-age students about employment discrimination and sexual harassment in the workplace. By educating America’s youth about their rights and responsibilities, the EEOC hopes to create positive and perhaps discrimination-free work experiences and environments for young adults.

These new learning tools focus on helping teenagers understand issues they may face as they enter the workforce. A series of video vignettes show typical employment settings such as stores and fast food restaurants and the accompanying guides provide insight on how to identify and deal with illegal discrimination and/or harassment.

EEOC Chair Jacqueline A. Berrien says, “As young people enter the workforce, it is important that they understand their rights and know how to respond if they experience or witness unlawful discrimination or harassment. The EEOC is committed to ensuring that the promise of equal opportunity is meaningful for everyone.”

Free downloads of these new materials and more information about discrimination that young workers may encounter as well interactive tools can be found on the updated Youth@Work web page at: and educators may request a copy of the video and classroom guide by e-mailing