Many federal employment oversight agencies have been ramping up their enforcement activity, so prudent employers are ramping up their compliance efforts. We expect to see enforcement actions increase in 2011, creating serious problems for unprepared employers. These enforcement increases include activity by the National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission and President Obama's National Equal Pay Enforcement Task Force.
Increased Enforcement by the National Labor Relations Board
The NLRB has been steadily increasing its impact on non-unionized workplaces. Recently, the NLRB filed a complaint against a company that fired an employee for criticizing her supervisor on Facebook. The NLRB alleged that the employer's social media policy prohibiting employees from depicting the employer “in any way” was overly broad and violated the National Labor Relations Act (NLRA) by preventing employees from discussing working conditions.
The NLRB enforces the NLRA which protects employees' rights to engage in “concerted activity.” Concerted activity includes, among other things, two or more employees discussing workplace conditions or their supervisors. This protection extends to employees whether or not they are unionized.
The NLRB has solidified its enforcement stance by announcing a proposed rule that would require employers to notify employees of their rights under the NLRA. According to the NLRB, the purpose of the notice is “to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions.” The required notices would resemble the postings of workplace rights that are currently required under the Fair Labor Standards Act, the Occupational Safety and Health Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and other workplace laws.
The NLRB intends to enforce the proposed rule by treating an employer's failure to post the notice as an unfair labor practice under the NLRA. Under the proposed rule, the consequences of noncompliance with the posting requirement include the extension of the six-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer and, for willful violations, using the employer's failure to post as evidence of unlawful motive in cases involving other alleged violations of the NLRA.
Employers should be aware that a posting requirement will put employees on notice that they may have a potential claim against their employer if they are disciplined for conduct that may be construed as “concerted activity” under the NLRA.
Increased Equal Employment Opportunity Commission Activity
According to the EEOC's Fiscal Year 2011 Congressional Budget Justification, the Commission is expecting over 100,000 charges in 2011, the highest number ever in the history of the Commission. This year will be a busy one for the EEOC as they enforce the Americans with Disabilities Act (ADA) Amendments Act, which has dramatically increased the scope of persons able to claim protection and discrimination. The regulations implementing the ADA Amendments Act are likely to be released in 2011. Additionally, the EEOC will begin enforcing its recently issued regulations related to the Genetic Information Nondiscrimination Act (GINA). Employers should be sure that their handbooks, policies and practices conform to the accommodation requirements of the ADA.
Title II of GINA prohibits the use of genetic information in employment; restricts employers from requesting, requiring or purchasing genetic information; and strictly limits the disclosure of genetic information. GINA and the regulations define “genetic information” to include, among other things: information about the genetic tests of an individual and/or a family member, family medical history, and requests and receipt of genetic services by an individual or family member. Title II of GINA is applicable to private employers with 15 or more employees and other entities.
The lengthy regulations related to GINA make it clear that employers are not permitted to use genetic information in making employment decisions, including health benefits. In addition, the EEOC's regulations broadly define “request” for genetic information to include such actions as conducting an Internet search on an individual that is likely to result in the discovery of genetic information and actively listening to third-party conversations with the intent of obtaining genetic information.
Managers need to be educated about GINA's requirements, and employers should ensure that letters requesting medical information for allowable reasons (e.g., FMLA, workers' compensation) contain the GINA safe harbor provisions.
Enforcement Activity by the Recently Formed National Equal Pay Employment Task Force
With the recent failure of the Paycheck Fairness Act in the Senate, the National Equal Pay Enforcement Task Force, which combines the regulatory powers and resources of the EEOC, the Department of Justice (DOJ), the Department of Labor (DOL), and the Office of Personnel Management (OPM), will seek to administratively crack down on gender-based pay discrimination in 2011.
The Task Force's other stated objectives include (1) improving coordination and collaboration between the EEOC, DOJ, DOL, and OPM and increasing their enforcement efforts to maximize the effectiveness of existing laws and regulations against pay discrimination; (2) collecting data from private sector employers to better understand the nature and scope of pay gaps between men and women and target enforcement efforts; (3) undertaking a public education campaign to educate employers about their obligations and employees about their rights; and (4) implementing a strategy to improve the federal government's role as a model employer.
Employers should audit their own compensation practices to make sure they are not vulnerable to claims of gender-based pay discrimination.