Panelists included Susan Webman, Of Counsel with FortneyScott in Washington, DC; John Husband, senior partner with Holland & Hart in the firm’s Denver, Colorado office; Linda Walton, attorney with Perkins Coie LLP in Seattle; and panel moderator Charles Plumb, partner with McAfee & Taft in the firm’s Tulsa, Oklahoma office.
Hot Topics: Equal Pay Act Disparities
Equal Pay Act issues are coming to the fore, Husband says. President Obama has created a special task force consisting of the DOJ, the OFCCP, and the EEOC as well as other federal agencies, to “do whatever is within their power” to “investigate and eliminate unequal pay practices in the U.S.”
Because the EPA is enforced pursuant to the FLSA, the EEOC does not have to wait until a charge is filed in order to conduct a directed investigation of employers it chooses in order to assess whether EPA violations are occurring, says Husband.
Hot Topics: Trend to Individual Liability
Increasingly, says Husband, the government is going after not only the company but also the owner. This fact may help you gin up interest in compliance. (It also can muddy the waters as individuals may not see their interests as totally aligning with the company’s interests.)
Hot Topics: EEOC Developments
The biggest EEOC development of the decade, Husband says, is the rise of retaliation claims, which have surpassed race discrimination claims every year since 2010. Retaliation claims currently make up nearly 40 percent of all charges filed with the EEOC.
Meanwhile, religion, disability and age discrimination claims have also been on the rise since 2008
The EEOC has gone from 50 active investigators in 2006 to 600 in 2011, notes Husband.
And then, he says, take a look at employees who serve on juries. In one survey, employees were asked the degree to which business executives shared their values—80 percent of employees said “very little.”
When asked their opinion of lower-level employees, employees were highly favorable. When asked who they would believe if a lower-level employee and an executive had different views of a situation, 77 percent would believe the employee.
So will the jury.
We’re now in a very frustrating situation, Husband says. Any routine action (like job assignments or promotions) is subject to a retaliation claim. By the way, employers, if you fall to the retaliation charge, you’ll pay the same damages as you would have under the original charge.
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Systemic Claims
The agency is moving toward systemic claims because they think that offers more “bang for the buck,” says Husband.(Systemic claims are those where large numbers of employees are involved in a pattern of discrimination.)
However, there’s some good news—EEOC is swamped and they are pulling back, partly because then tend to ask for everything and then find they don’t have time or resources to review it.
When they do demand a burdensome amount of records, negotiate, he says. Maybe you can give just one state’s worth or records rather then the whole country’s worth.
Finally, adds Plumb, the EEOC is becoming a PR machine. Yes, Husband agrees, they are now publicizing suits
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EEOC Strategy
The EEOC has expressly said that it is now looking to use its “limited resources” “more strategically.”
Translation: “strategically locating very ‘visible’ examples of unlawful policies and/or practices so as to put them on display for all other employers to see.”
Hint: You don’t want to be one of those companies that is put on display.
In tomorrow’s Advisor, FLSA hot topics, plus an introduction to the guide some call the “FLSA Bible.”
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Part of the problem with retaliation is that managers and supervisors don’t always understand which of their actions can constitute retaliation. HR often tends to spend most of its training of avoiding discrimination and harassment, and retaliation sometimes gets short shrift.