Are You Ready for Tomorrow?

1. Jana Bates Office of Human Resources Manager of HR Regulatory Compliance Texas Woman’s University Are You Ready for Tomorrow?

2. Higher Education HR Related Issues • Human Resource’s role in higher education: • Acting as strategic partner, • Focusing on tactical planning, • Providing support and training for program implementation, and • Addressing issues: • Diversity, privacy, security, compensation, rewards, employee relations, benefits, retirement and retention programs, and mandated and elective training programs.

3. Lessons We Have Learned • What’s Prohibited? • Discrimination or harassment based on race, sex, national origin, color or religion, • Retaliation against an individual who engages in protected activity, and • Disparate treatment or impact against a protected class. • What is mandated? • Employment decisions made on non-discriminatory basis, • Equal access to training, • Equal pay for equal work, • Equal opportunity for hiring, promotions and advancement, • Entitlement to FMLA, • Reasonable accommodation under ADA, and • Veterans get their jobs and all benefits back under USERRA.

4. Change! Change! Change Again? We have studied the laws, attended seminars or webinars, written or revised policies, performed necessary training and suffered through HR audits to assure compliance. But, now we find that the focus, interpretations, guide- lines, explanations, or new case law have changed what we are expected to do to be in compliance.

5. What Employers Can Expect in the Next Four Years • The President will not be able to push through much in the way of legislation with the GOP in control of the House – not a new problem for him. • During his last term, his agenda was advanced in two ways: (1) by issuing Executive Orders, and (2) by having government agencies take expansive, aggressive positions on existing laws (rulemaking) . • This is expected to continue in his second term.

6. What Employers can Expect in the Next Four Years • Affordable Care Act.The Supreme Court has said it's constitutional, and Congress can’t repeal it. • Transitional Reinsurance Program • President's (labor and employment) legislative wish list: • Paycheck Fairness Act, which would make it much easier to bring lawsuits for pay discrimination. • Employment Non-Discrimination Act (ENDA), which would prohibit discrimination based on sexual orientation and gender identity. • Employee Free Choice Act, which would have required recognition of unions through card-check without elections.

7. Equal Employment Opportunity Commission FIRST CONSIDER THEIR STATISTICS AND THEN EXAMINE THE NEW AGENDA OF THE EEOC

8. EEO Statistics

9. Texas EEO Statistics

10. Federal Agency Agendas • Equal Employment Opportunity Commission • The EEOC’s statement of Regulatory Priorities includes only one substantive item: “Disparate Impact and Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act.” • Clarifies the meaning of the “reasonable factors other than age” (RFOA) defense used against an Age Discrimination in Employment Act (ADEA) claims and the disparate impact burden of proof under the ADEA. • Proposed rule to update race and ethnicity data collection method to match reporting instructions for the EEO-1 Report. • Proposed rule amending its current Title VII and ADA recordkeeping regulations to add the Genetic Information Nondiscrimination Act (GINA).

11. EEOC -Association Discrimination • U.S. Supreme Court expanded those protected under the retaliation provisions of Title VII and included employees who have a close family relationship to a person who has made a complaint of discrimination: • Parents, • Sick spouses, or • Aging parents. • US Supreme Court Ruled in Thompson v North American Stainless LP. • Employers potentially may be held liable for taking adverse action against someone “associated with” the complainant.

12. EEOC – Caregiving Responsibilities • Family Responsibilities Discrimination (FRD) Discrimination against employees based on obligations to care for family members • The primary directives issued include: • Development and dissemination of a “strong EEO policy” that addresses the types of conduct that may constitute discrimination; • Training managers to recognize legal obligations; • Effective response to complaints of caregiver discrimination; • Providing clear assurance to caregiver/employees of protection from retaliation for such complaints.

13. EEO – Beauty Bias • Investigation of Marylou's Coffeefor practice of hiring young attractive women to serve coffee. • The EEOC's investigation was not triggered from a complaint; by a rejected applicant or by a fired employee. • It is a "Commission-initiated investigation" conducted, according to the director of the EEOC's Boston office, because "it's possible that applicants or employees might not know that they have been discriminated against." • Raises a troubling question: • Assuming no obvious forms of discrimination are occurring, may an employer hire only good-looking employees?

14. EEO – Beauty Bias Mere unattractiveness does not qualify as a disability under the Americans with Disabilities Act. The definition of "impairment" includes cosmetic disfigurements but it excludes ordinary physical characteristics such as height, weight, eye color, and hair color. According to the EEOC, only morbid obesity (defined as weight that is 100% in excess of the body norm) as does obesity that results from some physiological disorder (such as a thyroid condition), qualifies as an impairment.

15. EEOC - Criminal Background Checks • Under Title VII of our civil rights laws, employers may not deny employment based on a conviction except when the offense is job-related. • Prior convictions may be considered if job-related, according to the “Green” factors: • The nature and gravity of the offense or conduct, • The time that has passed since the offense, conduct and/or completion of the sentence, and • How the job relates to the type of crime committed. • Employers must also evaluate whether the applicant actually engaged in the alleged misconduct.

16. EEOC -Retaliation • Retaliation occurs when an employer punishes an employee for engaging in legally protected activity. • Retaliation can include any negative job action, • demotion, • discipline, • firing, • salary reduction, or • job or shift reassignment. • Retaliation can also be more subtle. • As long as the employer's adverse action would deter a reasonable person in the situation from making a complaint, it constitutes illegal retaliation.

17. EEOC -Retaliation • Retaliation claims make up more than one-thirdof all EEOC charges. • Retaliation claims are some of the easiest and most successful types of claims for plaintiffs to make. • Other reasons: • New federal and state legislation regarding retaliation and whistleblowing, • Favorable court rulings for plaintiffs, and • An increased interest by the EEOC, courts and the media. • Causes of action for retaliation do not require a finding of discrimination pursuant to the statute.

18. EEOC -Retaliation • FEDERAL STATUTES WITH RETALIATION PROVISIONS: • Title VII of the Civil Rights Act of 1964 (“Title VII”), • Age Discrimination in Employment Act (“ADEA”), • Americans with Disabilities Act (“ADA”), • Fair Labor Standards Act (“FLSA”), • National Labor Relations Act (the “NLRA”), • False Claims Act (the “FCA”), • Occupational Safety and Health Act (“OSHA”), • Sarbanes-Oxley Act (“Sarbanes-Oxley”) and, • Family and Medical Leave Act (“FMLA”)

19. EEOC – Application of Law to Domestic Violence • EEOC released a Fact Sheet illustrating how Title VII and the ADA may apply applicants and employees who experience domestic or dating violence, sexual assault, or stalking. • An employer’s actions based on an employee’s experience with domestic violence may constitute sex-based stereotyping. • Employers might be required to provide a reasonable accommodation under the ADA for victims of sexual assault, domestic violence, or stalking. • Accommodations might include providing leave to allow the employee to obtain treatment for depression or anxiety resulting from an assault.

20. What’s Next for EEOC? Strategic Enforcement Plan • The agency proposes six national enforcement priorities for 2013 - 2016: • Eliminating barriers in recruitment and hiring, • Immigrant/migrant worker rights, • Enforcing equal pay laws, • Addressing “Emerging issues," • Preserving access to the legal system, and • Preventing harassment through systemic enforcement and targeted outreach.

21. New employment legislation • Global HR issues • Employee engagement • Work/life balance • HR Technology & Social Media • Increasing benefit costs • Available talent • Workplace flexibility – SHRM survey • Flexible Work arrangements What’s Next for EEOC? Strategic Enforcement Plan Speculation on enforcement priorities: The ADA Amendments Act. -- this law is a potential $$$ bonanza for the federal government since the amended ADA classifies virtually every person with a medical condition as "disabled."  LGBT (lesbian-gay-bisexual-transgender) coverage under Title VII. May pursue on the basis of sex stereotyping. Reasonable accommodations for pregnant women. The EEOC's strategy appears to be to impose a reasonable accommodation requirement, treating pregnant women the same as other employees with temporary medical conditions, which could mean providing light duty. 

22. Federal Agency Agendas • Department of Labor • DOL’s statement of regulatory priorities: the agency will continue to implement rules pursuant to its “P3 Initiative - Plan/Prevent/Protect” regulatory and enforcement strategy that will require businesses to establish and enforce plans for identifying and remedying labor law violations. • According to the agency, employers “who fail to take these steps to comprehensively address the risks, hazards, and inequities in their workplaces will be considered out of compliance with the law and, may be subject to remedial action.

23. Department of Labor P3 Initiative – Plan/Prevent/Protect • Develop written plans (“Plan”); • Create processes (“Prevent”); and • test the processes with designated compliance employees (“Protect”). DOL All DOL agencies are expected to issue regulations requiring employers to take affirmative steps to ensure compliance. Includes a requirement  that violations found by one agency will be immediately reported to the agency best equipped to take action and impose remedial sanctions.

24. Department of Labor "BRIDGE TO JUSTICE" DOL The DOL will provide complainants with referrals to plaintiffs' attorneys and share the information obtained during their investigation with such attorneys. An employer will have to file a Freedom of Information Request (FOIA) request to obtain information from DOL.

25. Department of Labor “RECRUITMENT DATABASE" DOL The DOL has launched a “Workplace Recruitment Database” comprised of potential hires with disabilities. 2013 Workforce Recruitment Program (WRP) database contains more than 3,000 profiles of postsecondary students and recent graduates with disabilities, including veterans.

26. Federal Agency Agendas • The Office of Federal Contract Compliance Programs (OFCCP) intends to issue a number of proposed and final rules governing contractor affirmative action and nondiscrimination requirements. • The OFCCP plans to propose new sex discrimination guidelines. According to the agency, current guidelines are “more than 30 years old and warrant a regulatory look back.” • The agency is still considering plans for a new compensation data collection tool “to identify contractors likely to violate” sex- and race-based compensation discrimination laws.

27. Federal Agency Agendas • 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 Equal Pay Act 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.

28. Office of Federal Contract Compliance Program “Revisions to regulations for AAPs" OFCCP • Quantitative affirmative action goal of 7% for individuals with disabilities Voluntary self-identification of disability status, Annual survey of workforce to determine disability status, Priority consideration for disabled applicants, and Specific requirements for reasonable accommodation including mandated timelines and required steps.

29. DEPARTMENT OF JUSTICE The Department of Justice (DOJ) has announced the creation of a new position dedicated exclusively to whistleblower protections. DOJ Whistleblower Ombudsperson will be tasked with: Training and educating DOJ employees, Assuring whistleblower charges are thoroughly reviewed and addressed, and Monitoring all retaliation claim investigations.

30. Whistleblower Protections • Dodd-Frank Wall Street Reform and Consumer Protection Act • Includes an incentive program to encourage reporting of SEC violations, and • Awards employee whistleblowers between 10-30% of a sanction that exceeds $1 million. • Whistleblower Protection Enhancement Act - rewards and provide retaliation protection.

31. $104 Million - Just for Blowing the Whistle on a Tax Evader IRS Whistleblower Program, will reward people for solid information about a non-compliant taxpayer It just awarded $104 million to a former UBS employee who alerted the IRS to his company's tax evasion scheme with respect to its clients.  The $104 million wasawarded,even though the former UBS employee served time in prison for the role he played in the tax evasion! 

32. Uniform Services Employment & Reemployment Act Issued Veterans and ADA Guide for Employers • Preferential treatment may be given to veterans with disabilities by public and private employers. USERRA USERRA requires employers to go further than the ADA by making reasonable efforts to assist a veteran in becoming qualified for a job, regardless of whether or not he has a service-connected disability.

33. DOL – Fair Labor Standards Act - Wage and Hour EXPECT FURTHER INCREASES TO MINIMUM WAGE FLSA (W&H) • President Obama has indicated he would like to see minimum wage increased to $9.50. Living wage: wage necessary for an individual to meet basic needs for an extended period of time or a lifetime. Prevailing wage: thehourly wage, and benefits within a particular area.

34. DOL – Fair Labor Standards Act - Wage and Hour The DOL’s Wage and Hour Division will issue a proposed rule to update the recordkeeping regulations. Will require all employers to advise workers in writing of their status as employee or independent contractor, state how their pay is computed. Will have to create a record for each worker addressing the required information and reissue it if status or pay changes.

35. W & H Crushes Other Categories in Litigation Trends Which types of cases has greatest increase in multi-plaintiff cases? Retaliation Religion Sex ERISA Non-compete Labor union Age Race Wage and Hour Fulbright & Jaworski LLP .

36. W & H Crushes Other Categories in Litigation Trends Which types of cases create the most monetary exposure? Disability Discrimination Race Age Retaliation Wage and Hour Fulbright & Jaworski LLP .

37. National Labor Relations Board D.C. Circuit Court ruled that the 2012 recess appointments of three board members to the NLRB was unconstitutional NLRB Lacking a quorum, all decisions in the last twelve months are in danger of being overturned. The NLRB “will continue to perform [its] statutory duties and issue decisions” despite the Appeals Court's decision.

38. National Labor Relations Board The Micro-Unit Issue The NLRB ruled in favor of the International Association of Machinists allowing a “micro-unit,” or historically-small unit, to proceed to election. The Ambush Election Rules The NLRB issued rules in 2011 changing key provisions of their election procedures: to shorten the time between an election petition and voting day.

39. National Labor Relations Board • Confidentiality of Investigation • The NLRB has taken the position that a blanket requirement of confidentiality during an investigation of employee misconduct violates Section 7 of the National Labor Relations Act. • Employment at Will Disclaimers • An administrative law judge of the NLRB has ruled that an employment-at-will disclaimer violates employees' Section 7 rights to engage in protected concerted activity relating to changing their at-will status.

40. National Labor Relations Board • Social Media Policies • The board found that the policy—which prohibited Costco employees from making statements on social media that could damage the company or other employees’ reputations— could chill employees’ free speech rights under the NLRA. • Section 7 • “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…”

41. Federal Laws with Personal Liability Several federal and state employment laws do allow for personal liability for violations.  Federal laws that have been interpreted to hold HR decision-makers personally responsible include the: PERSONAL LIABILITY The  Fair Labor Standards Act, The Equal Pay Act, The Family and Medical Leave Act, The Consolidated Omnibus Budget Reconciliation Act, The Employee Retirement Income Security Act, and The Immigration Reform and Control Act.

42. How much will you pay?

43. Prospective Legislation • Employee Free Choice Act (EFCA) • Labor vs. Business • Make it easier for workers to unionize in the US • Allow workers to skip the process of a NLRB election and unionize if a simple majority sign authorization cards. “card check” • Eliminate secret-ballot elections if union gets 50% + 1 cards signed • Still a concern in Congress. Four states have passed laws against EFCA and NLRB is suing them. • Has not passed

44. Prospective Legislation • Employment Non-Discrimination Act –ENDA • Major Title VII amendment adds gender identity and sexual orientation as protected classes. – Has not passed • April 11 President Obama decided not to pursue an executive order banning federal contractors from discriminating on the basis of sexual orientation or gender identity “at this time”. • Paycheck Fairness Act • Equal Pay for Equal Work Forces employers to demonstrate that differences in pay are based on factors other than sex. – Has not passed • Healthy Families Act • This legislation would require most employers to provide all employees with seven days of paid sick leave per year. – Has not been Passed

45. Management Responsibility • Protect your employees, your company, and yourselves from liability, exposure, public relations nightmares, and possible punitive actions as a result of violations employment law. • Best defense is: • Knowledge of employment law and staying current on new laws or interpretations, • Understanding the application of the law, • Establishing a compliance program, and • Assuring every employee is treated with dignity and respect.

46. Elements of a Compliance Program • Designation of a Compliance Officer or Contact Person. • Written Policies, Procedures and Standards. • Implementation: • Effective Communication, • Education, and • Training. • Effective Complaint Process: • Open lines of communication, • Timely response to any complaints, • Thorough investigation, and • Discipline, if/when warranted.

47. Elements of a Compliance Program • Risk Assessment: • Monitoring, • Auditing, and • Reviewing to identify problem areas. • Respond appropriately and in a timely manner to detected offenses, and • Develop and implement corrective actions. • Document, document, document!

48. Tomorrow is Here!!! WHAT’S NEXT? New employment legislation, Global HR issues, Employee engagement, Work/life balance, HR technology & social media, Increasing benefit costs, Available talent, Workplace flexibility, and Flexible work arrangements. • .

49. Tomorrow is Here!!! • .

50. Tomorrow is Here!!! Participate in strategic planning, Provide advice to campus management, Respond to employee complaints, Conduct fair/thorough investigations, Avoid legal entanglements, Combat intermittent leave abuse, Manage recordkeeping and records retention, Stamp out discrimination & harassment, Assure equal pay for equal work, Comply with all federal and state laws, Improve employee morale, Reduce turnover, Recruit qualified/competent employees, And much more…….. Advise executive management Participate in strategic planning Respond to employee complaints Conduct fair/thorough investigations Avoid legal entanglements Combat intermittent leave abuse Manage personnel files Stamp out discrimination & harassment Assure equal pay for equal work Comply with all federal and state laws Improve employee morale Reduce turnover Recruit qualified/competent employees And much more…….. • .