The EEOC has issued an updated version of its Strategic Enforcement Plan that employers need to be aware of.
On October 17, 2016 the Equal Employment Opportunity Commission (EEOC) released an updated version of their Strategic Enforcement Plan (SEP) that was originally developed in 2012. In doing so they added two areas of enforcement of which employers need to be aware.
Before I talk about the new areas it would probably be good to remind everyone of what the “old” areas on which the EEOC focused attention. These included:
- Eliminating barriers in recruitment and hiring;
- Protecting vulnerable workers, including immigrant and migrant workers, and underserved communities from discrimination;
- Addressing selected emerging and developing issues;
- Ensuring equal pay protections for all workers;
- Preserving access to the legal system; and
- Preventing systemic harassment.
The result of this previous plan was an increased emphasis on the use of background checks in employment and the use of the “individualized assessment” when making hiring decisions. This requires employers to avoid making blanket rejections based on a previous criminal history and said employers should consider the circumstances, such as time and crime, when making hiring decisions.
As a result of changes in the world of work and an increasingly difficult geopolitical situation the EEOC has added two new areas of emphasis under the emerging and developing issues. One of these is the increased discrimination against workers of Middle Eastern descent. There will be increased emphasis in making sure workers who are from the Middle East or perceived as being from the Middle East (Muslim or Sikh, or persons of Arab, Middle Eastern or South Asian descent) receive protection from discrimination.
The second area that is emerging is the new workplace. The use of workers from the “Gig” economy is on the rise by employers. Temporary workers and independent contractors are not afforded the same protections under the law as employees. The EEOC has vowed to monitor these areas and to develop regulations that may afford anti-discrimination protection to workers in those areas.
With the gig economy the definition of worker and employee are changing, and as I have talked about in the past in Future Friday: Is the future of the gig economy more regulation? Some think that the Gig economy will not survive because of efforts of government agencies, like the EEOC, to regulate it. I don’t think this is the case, but some effort may be needed to provide direction to employers. Will the EEOC be able to provide it?
Only time will tell.
This new poster is required of all employers.
With all the changes going on in the government it should be no surprise that new posters have been produced.
This has nothing to do with the new regulations going into effect on December 1, 2016 this year. This is actually the $7.25 minimum wage poster. It is new, and required, because the government is trying to be technologically more current and thus they have put a QR code on the poster to facilitate your employee finding out information or reporting you to the USDOL. You can download it here.
Along these lines there is also a new Polygraph poster, which can be downloaded here.
There is also a new Family and Medical Leave Poster, required of all companies that have more than 50 employees. It can be downloaded here.
The good thing is that if you have an “All-in-one poster” you can take these posters above that you downloaded and tape them over the comprehensive poster and you are good to go, at least until you decide to purchase a new snazzy plastic poster.
At some point every poster will probably include the QR technology so you may want to wait for those.
This style of office may be a thing of the past.
A week or so ago I saw a post on my Facebook feed from John Sumser about open work spaces. It was called Google got it wrong. The open-office trend is destroying the workplace. It resonated with people who read it, both good and bad. The general consensus was that there are issues with both the space and the people using the space. Soon after that I came across another article about the top five trends transforming the workplace. In this article the term workplace meant work space. We may be shifting away from the open work space to an office that can transform to the personal needs of the workers.
Prognostications from experts
The article was a set of prognostications from various experts in the office design arena. Their visions include”
- Smarter digital buildings that allow “…digitally savvy employees to manage the temperature, lighting, and even the food choices and background music in their workspace. Smart buildings also provide better indoor air quality and environmental controls that not only improve a company’s environmental sustainability contributions, but also boost employee health, wellness, and productivity. Another productivity increase comes from today’s mobile apps that provide a direct, ‘frictionless’ way for employees to enhance their workplace experience.” The ultimate in personalization.
- Innovative work spaces. John Forrest, Global & Americas CEO, Corporate Solutions, JLL said “The one-size-fits-all model is no longer relevant as the workplace evolves to become more mobile, flexible and personalized.” New work spaces will provide technology-enabled, collaborative, and high-quality experiential workplaces to cater to what they author called “the liquid workforce” of on-demand and mobile workers. These spaces may even include telepresence robots, such as I wrote about in can Remote Control Robots Be an ADA Accommodation?
- Design for innovation. As the article posted by Sumser suggests open work spaces can have a detrimental effect on creativity and innovation. Research has shown that “…employees at the most innovative companies benefit from better-designed and more functional workspaces, with adjustable features, collaboration areas, a variety of workspaces, noise management, and access to outdoor areas…”
May take a while
Companies are moving in that direction in many areas. But at the same time I walk into many companies that look like they were printed from the pages of Life Magazine from 30 years ago. So it may take a while for this personalization to occur.
Make sure to prevent retaliation in the workplace
On September 7, 2016 I wrote Guarding against retaliation is a much more active process now! Since then I have read some additional material that certainly indicates that retaliation is a very big deal to the EEOC. The EEOC has even prepared suggested steps that employers should take to insure they do not engage in any retaliation. Lest you are unclear “suggested” in the EEOC playbook means “must do or we will blast you.”
Suggested or “promising” practices
The EEOC published what it called “promising practices” that employers could engage in to show to the EEOC and employees that they take retaliation seriously. These include:
- Employers should maintain a written, plain-language anti-retaliation policy, and provide practical guidance on the employer’s expectations with user-friendly examples of what to do and not to do.
- Employers should consider training all managers, supervisors, and employees on the employer’s written anti-retaliation policy, and sending a message from top management that retaliation will not be tolerated.
- Managers and supervisors alleged to have engaged in discrimination should be provided with guidance on how to handle any personal feelings about the allegations when carrying out management duties or interacting in the workplace.
- Employers may also wish to check in with employees, managers, and witnesses during the pendency of an EEO matter to inquire if there are any concerns regarding potential or perceived retaliation. This may help spot issues before they fester, and to reassure employees and witnesses of the employer’s commitment to protect against retaliation.
- Employers may choose to require decision-makers to identify their reasons for taking consequential actions, and ensure that necessary documentation supports the decision. Employers may examine performance assessments to ensure they have a sound factual basis and are free from unlawful motivations, and emphasize consistency to managers.
A lot of hand-holding
Some of the steps listed above are good, practical steps that all employers should follow. All employers should have a policy but I am not sure what qualifies as a “user-friendly” example. Some of this sounds like we need to have grief counselors on hand to help both employees and supervisors deal with feelings about retaliation.
Regardless of my snarky perception it is important to:
- Have a policy, with examples of prohibited retaliation.
- HR or management should be aware of potential retaliation that might be taken and squelch it before it occurs.
- There should always be a documented business reason for taking action against an employee, either before or after the retaliation.
- The entire process needs to be documented.
As the attorneys at Miller Canfield say “While not all courts will agree with the EEOC’s interpretation of those laws, the EEOC will be the first stop for any employee who is seeking relief under a federal statute and defending an EEOC charge can be costly and time-consuming. …Defending a lawsuit is even worse.”