2011: A New Year And A New Agenda From The U.S. Department of Labor
U.S. Secretary of Labor Hilda Solis has stated that the work of the Department of Labor (DOL) is focused on achieving Good Jobs for Everyone. The DOL’s vision of a "good job" includes jobs that:
- increase workers' incomes and narrow wage and income inequality;
- assure workers are paid their wages and overtime;
- are in safe and healthy workplaces, and fair and diverse workplaces;
- provide workplace flexibility for family and personal care-giving;
- improve health benefits and retirement security for all workers; and
- assure workers have a voice in the workplace.
To meet its goals for the 2010-2011 fiscal year, the DOL will increase its enforcement actions, education and outreach efforts, and will intensify targeted regulatory actions. The DOL’s regulatory actions are centered on two themes: Plan/Prevent/Protect, and Openness and Transparency, which are designed to strengthen protections for workers and increase compliance.
Theme 1: Plan/Prevent/Protect Compliance Strategy
In the DOL’s fall 2010 regulatory agenda, several of its agencies, including the Occupational Safety and Health Administration (OSHA), the Wage and Hour Division (WHD), and the Employment and Training Administration (ETA), proposed regulatory actions that would require employers to develop programs to address specific compliance issues within each agency. The emphasis is on encouraging employers to comply with the law every day, not just when issues are brought to their attention. Some requirements include:
- Plan: Create a plan for identifying and remediating risks of legal violations and other risks to workers. For example, a plan to inspect their workplaces for safety hazards that might injure or kill workers. Workers will be given opportunities to participate in the creation of the plans. In addition, the plans would be made available to workers so they can fully understand them and help to monitor their implementation.
- Prevent: Thoroughly and completely implement the plan in a manner that prevents legal violations. The plan cannot be a mere paper process. This will not be an exercise in drafting a plan only to put it on a shelf. The plan must be fully implemented.
- Protect: Verify on a regular basis that the plan's objectives are being met. The plan must actually protect workers from health and safety risks and other violations of their workplace rights.
Employers who do not address the risks, hazards, and inequities in their workplaces will be considered out of compliance with the law and, depending upon the agency and the substantive law it is enforcing, subject to remedial action.
Theme 2: Openness and Transparency: Tools for Achieving Compliance
Key to the DOL’s compliance and regulatory strategy is to create and encourage greater openness and transparency between the DOL, employers, unions and employees. The DOL takes the position that openness and transparency will not only enhance enforcement actions but will promote greater levels of compliance and will make workers more aware of their rights and benefits.
The Department believes that Plan/Prevent/Protect and Openness and Transparency will result in gradual improvements to worker health and safety. However, when specific hazards and risks to worker health, safety, security or fairness are identified, the Department will not hesitate to use its regulatory powers to limit the risk to workers.
Occupational Safety and Health Administration (OSHA)
According to the regulatory agenda, OSHA’s goal is to modernize the culture of safety within U.S. workplaces. Its initiatives will focus on reducing injuries, identifying hazards and developing strategies on how to control them. Health hazards that are receiving increased attention include silica and specific food flavorings, which are posing increased risks of disease and death to U.S. workers. OSHA is also addressing the risk to workers who are exposed to infectious diseases in healthcare and other related high-risk environments and is considering regulations that would work with established infection control practices. The Agency received strong comments to its May 2010 request for information on infectious diseases and is currently reviewing the docket.
Wage and Hour Division (WHD)
The Wage and Hour Division is responsible for administering and enforcing the laws regarding minimum standards for wages and working conditions in the United States for most private, state, and local government employers. Under its theme of Plan/Prevent/Protect, the WHD will launch a program, “Right To Know Under the Fair Labor Standards Act.” Through this program, the WHD intends to publish a proposed rule updating the recordkeeping regulation issued under the Fair Labor Standards Act (FLSA) to assist employers in developing and implementing plans to protect workers' entitlement to earned wages and bring greater transparency and openness to the workplace. The proposed rule would require employers to notify workers of their status as employees or independent contractors, and whether that worker is entitled to the protections of the FLSA. The proposed rulemaking would also consider requiring employers to provide a wage statement each pay period to their employees. This initiative will provide workers with essential information about their employment status and earnings and will contribute to the Department's efforts to prevent misclassification that denies workers employment law protections to which they are entitled.
Employment and Training Administration (ETA)
The ETA intends to revise the National Apprenticeship Act to promote and expand registered apprenticeship opportunities while safeguarding the welfare and safety of all apprentices. The proposed EEO regulations also will further Secretary Solis' vision of good jobs for everyone by ensuring that apprenticeship program sponsors develop and fully implement affirmative action efforts that provide equal opportunity for all applicants to apprenticeship and apprentices, regardless of race, gender, national origin, or disability. The ETA is coordinating with the OFCCP, to develop a proposed regulation to enhance the effectiveness of the affirmative action program requirements for federal and federally assisted construction contractors and subcontractors.
The EEOC Reports An Increase in Discrimination Charge Filings in 2010
Underscoring the need for Good Jobs for Everyone, the U.S. Equal Employment Opportunity Commission (EEOC) reports that a record number of employment discrimination complaints (99,922) were filed in FY 2010. This is the highest number of complaints in the agency’s 45-year history and is an increase of seven percent over the number of claims filed in FY 2009. Leading the way in the increase were disability discrimination claims, which increased 17 percent over last year. The increase in disability claims began in the months after Congress approved changes to the Americans with Disabilities Act in 2009, which made it easier for people with treatable conditions like epilepsy, cancer or mental illness to claim they are disabled. Discrimination claims increased in other categories too. Race discrimination claims rose seven percent, while retaliation claims jumped eight percent.
FY 2010 Enforcement and Litigation Statistics
According to the FY 2010 data, charges increased in all major categories of discrimination, including charges alleging discrimination under Title VII of the Civil Rights Act of 1964, as amended; the Equal Pay Act; the Age Discrimination in Employment Act; the Americans with Disabilities Act; and the Genetic Information Nondiscrimination Act (GINA). Last year, for the first time ever, claims of retaliation under all statutes (36,258) surpassed race (35,890) as the most frequently filed charge. Allegations of discrimination based on religion (3,790), disability (25,165) and age (23,264) also increased. In its first year of enforcing GINA, the EEOC received 201 charges alleging discrimination based on genetic information.
In addition, the FY 2010 data show that the EEOC filed 250 lawsuits, resolved 285 lawsuits, and resolved 104,999 private sector charges. Through its combined enforcement, mediation and litigation programs, the EEOC secured more than $404 million in monetary benefits from employers – the highest level of monetary relief ever obtained by the Commission through the administrative process – to promote inclusive and discrimination-free workplaces.
The EEOC shows no signs of slowing down its enforcement efforts in 2011. In the first week of the new year the EEOC reported that it reached $3.4 million in settlements with employers, with the $3.2 million consent decree with Supervalu/Jewel-Osco for disability bias leading the way.
Information on these and other employment, labor and human resource issues can be found in our publication,
The Employment Law Manual for Wisconsin Employers. The
Manual is updated annually to reflect the latest developments in these areas of the law. For information on the
Manual and the 2011 Update, which is available now, please visit our website at
www.krukowski.com. As always, if you have any questions about these or other employment and labor law issues, please contact me at 414-423-1330 or via e-mail at
tpk@kclegal.com.
Thomas P. Krukowski
Posted 01/13/2011
SHRM Advocacy Event: Shaping HR Public PolicyDecember 14th, 2010
Two Locations !!
Hosted By:
Metro Milwaukee SHRM
7:30am - 8:15am Registration/Networking/Breakfast
8:15am - 9:45am Shaping HR Policy
(HRCI Strategic Credit)
Location:
Radisson Hotel Milwaukee West
2303 N. Mayfair Rd
Milwaukee, WI 53226
www.radisson.com/milwaukeewi_west
Hosted By: Fox Valley SHRM
11:45am - 12:30pm Registration/Lunch
12:30pm - 2:00pm Shaping HR Policy
(HRCI Strategic Credit)
Location:
Liberty Hall
800 Eisenhower Dr
Kimberly, WI 54136
920-731-0164
As an HR professional, you are uniquely positioned to provide insight into and shape the development of federal and state workplace place laws and regulations. SHRM is launching an initiative to create a nationwide member advocacy network of HR Advocates collectively known as the Advocacy Team, or A-Team, to fully engage our members in the public policy process.
To develop the A-Team, the SHRM Government Affairs Team has created a strategic curriculum designed to inform and train SHRM’s key contacts, known as District Captains, and HR Advocates on the program. This presentation takes you through the basic steps of becoming involved in the public policy process; best practices for contacting, meeting with and building lasting relationships with elected officials and their staffs outside of Washington, DC, in their home districts; and, effective ways of communicating the HR professional’s perspective on key workplace issues.
This a FREE event that earns a FREE Strategic Credit plus offers a FREE lunch!
It is a no fee event - send a representative from your chapter if you cannot make it!
Registration and information is available at the following link:
Thanks for all you do for your chapters and in the way of governmental affairs advocacy!!
WORKPLACE FLEXIBILITY
SHRM believes that the United States must have a 21st century workplace flexibility policy that meets the needs of both employers and employees. Rather than a one-size-fits-all government mandate, the policy should be a new approach that reflects different work environments, representation, industries and organizational size.
ALL’S FAIR IN LOVE AND WAR BUT NOT PAYCHECKS
The Paycheck Fairness Act S3772 HR 12
Before the end of the year, Congress is likely to vote on a bill that addresses an issue that has been discussed for years but has seen little action: equal pay. Bureau of Labor Statistics (BLS) data from the second quarter of 2010 demonstrates that women still fall short in wages, earning 82.8% of the median weekly wage of men. Although this amount is up from 76.1% for the same period a decade ago and is the highest ever recorded, women still lag behind men in pay for the same or similar jobs. Some of the gain can be attributed to the fact that men have been losing jobs at a faster rate than women in the recession because of layoffs and closings in manufacturing, construction and other industries, which are traditionally dominated by males. At the same time, women have been moving into high-paying professional jobs such as accountants, lawyers and physicians while men have been taking relatively low-paying jobs—bank tellers, switchboard operators, librarian, which have long been dominated by women; again, most likely due to the effects of the recession. Black and Latina women have an even greater pay disparity—62 and 53 cents respectively.
The Paycheck Fairness Act, introduced on September 13, 2010 by Senator Harry Reid and endorsed by President Obama and women’s rights groups, would make it easier for women to file class-action, punitive-damages suits against employers they accuse of sex-based pay discrimination. If the bill is passed, employers must have one pay rate for a job, not only at the entry level, but throughout the organization. Employers will face challenges and have less discretion in considering different salary histories for new hires, different salary demands from existing employees, and the size of pay raises for employees promoted into new roles.
For example, City Hospital needs to hire nurses at an annual salary of $40,000. Melanie and Jason both have 3 years of experience and apply for the jobs. The hospital offers both of them employment at the $40,000 salary. Melanie accepts the job offer; however, Jason tells the hospital that he wants to be paid $42,000. Under current law, if the hospital agreed to pay Jason $2,000 more than Melanie there would be no problem because the law says that an employer is not liable if it paid Jason and Melanie differently for “a reason other than sex.” There also would be no problem if the hospital decided to pay each new hire $2,000 more than they made in their previous employment, and Jason made more than Sally in their previous jobs.
This bill would eliminate the “reason other than sex defense and would allow unlimited compensatory and punitive damages under the Equal Pay Act. The bill would require that the employer prove that: (1) its pay practices are separated from any discrimination in its workplace or at the employee’s prior workplace, (2) the practice is job related and (3) the pay practice is consistent with “business necessity.” The legislation would also:
- Prohibit retaliation against workers who inquire about their employers’ wage practices or disclose their own wages;
- Permit reasonable comparisons between employees within clearly defined geographical areas to determine fair wages;
- Strengthen penalties for equal pay violations;
- Direct the Department of Labor to assist employers and collect wage-related data; and
- Authorize additional training for Equal Employment Opportunity Commission staff to better identify and handle wage disputes.
While striving to level the playing field in terms of equal compensation, the law would make these changes without real evidence that these steps will eliminate pay disparities between men and women and without any thought on the impact of restricting a company’s ability to respond to the different needs and demands of its employees. In addition, courts may second guess legitimate pay practices and impose compensation plans on employers.
The House version of this legislation, HR 12, passed the House in 2009 by a vote of 256 to 63. Based on the wide-spread support this bill has received, including from President Obama, who has called it “a common-sense bill,” it is likely that this legislation will pass.
Employer-Provided Educational Assistance
Congress Will Decide Fate of Employee Tax Benefit
When Congress returns to Washington after Labor Day, we expect a decision on whether to extend an important tax provision for employees and employers alike. It’s Section 127 of the U.S. tax code, allowing employers to provide employees with up to $5,250 a year in tax-free educational assistance. If Congress doesn’t act, the provision expires at midnight on Dec. 31.
Under the terms of Section 127, employees don’t have to report employer-provided tuition reimbursement as personal income, whether the assistance is for any course at the associate, undergraduate or graduate level. The provision has been on the books since 1978, and today nearly a million working Americans take advantage of it every year. The benefit is also an important recruitment and retention tool for employers.
If you would like to urge your House member to support Section 127, please write to your elected official today!
Member Advocacy:
Interested in Joining the A-Team?
HRM has embarked on an aggressive member advocacy effort. It’s built around what we call the SHRM Advocacy Team, or “A-Team.” The targets for 2010 are 11 states: Alabama, Arkansas, California, Florida, Kansas, Maine, Nebraska, New York, Rhode Island, Washington, and Wisconsin. The goal is to have a SHRM member serve as a key contact or “District Captain” in each of the 435 congressional districts for a five-year period.
The District Captain (preferably a HR practitioner) will lead SHRM’s member advocacy efforts on the local level. Ideally, he or she will recruit other members in the district to be the “face” of HR for their elected officials when they’re back home. They’ll also organize bi-annual visits to district legislative offices to discuss important HR issues being considered by Congress or their state legislature.
Are You Paying Employees Properly For All Time Worked?
Department of Labor Administrator’s Interpretation on Donning and Doffing Activities
When work starts and when employers need to begin paying employees has long been an area of wage and hour law in which disputes arise between employees and employers. One type of dispute involves if and when employers are required to pay employees for the time it takes to put on and remove (don and doff) protective gear or clothing that is required for the job. To further complicate matters, even if the terms of a collective bargaining agreement dictate how employees are compensated for donning and doffing activities, those terms may be in violation of state or federal law. Section 203(o) of the Fair Labor Standards Act (FLSA) provides that time spent “changing clothes or washing at the beginning or end of each workday” is excluded from compensable time under the FLSA if the time is excluded from compensable time pursuant to “the express terms or by custom or practice” under a collective bargaining agreement. 29 U.S.C. § 203(o).
2010 Department of Labor (DOL) Administrator’s Interpretation
To assist employees and employers in all industries to better understand the scope of the § 203(o) exemption and of whether clothes changing covered by § 203(o) is a principal activity, the DOL conducted a review of the interpretation of the term “clothes” in § 203(o) of the FLSA, and of whether clothes changing covered by § 203(o) is a principal activity, to provide needed guidance on these important and frequently litigated issues. A recent Administrator's Interpretation, No. 2010-2, issued by the DOL’s Wage and Hour Division, reversed prior DOL positions and advised that clothes changing covered by § 203(o) may be a principal activity and, where that is the case, subsequent activities, including walking and waiting, are compensable.
Prior DOL Opinion Letters and Litigation
This interpretation followed a thorough analysis of the statutory provision and a comprehensive review of the legislative history and case law and prior opinion letters, including those from 1997, 2002 and 2007. In its 1997 Opinion Letter, the DOL advised that time spent putting on, taking off and cleaning the protective equipment utilized in the meat packing industry was compensable and that the protective equipment did not constitute "clothes" under § 203(o). However, the 2002 Opinion Letter, which advised that “clothes” under § 203(o) included the protective equipment typically worn by meat packing employees, was reaffirmed in a 2007 Opinion Letter. The 2002 opinion letter further specified that the equipment worn by meat packing employees is clothing by referring to cases and regulations that include “face shields” and “impermeable gloves” as “protective clothing.” However, in subsequent litigation, not only could neither the plaintiffs nor defendants agree on a common definition of the word “clothes,” the majority of district courts rejected the 2007 Opinion Letter.
Some guidance was provided in the 2005 U.S. Supreme Court decision in IBP v. Alvarez, in which the Supreme Court explicitly held that activities that are integral and indispensable are principal activities, and activities occurring after the first principal activity and before the last principal activity, are compensable. Based on this ruling, time spent in donning and doffing activities, as well as any walking and waiting time that occurs after the employee engages in his first principal activity and before he finishes his last principal activity, is part of the “continuous workday” and is compensable under the FLSA.
Recent Court of Appeals Decision
On August 2, 2010, the Seventh Circuit Court of Appeals upheld a $2.2 million judgment in which Kraft/Oscar Mayer lost its case involving donning and doffing issues even though the company and its union, the UFCW, negotiated and agreed to forgo pay regarding the donning and doffing; arguably this agreement should have protected the employer under the FLSA, Section 203(o). The Seventh Circuit in Chicago (which covers lawsuits in Wisconsin, Illinois and Indiana) is the first federal appeals court to decide the preemption argument. The company argued that the collective bargaining resolution superseded rules that would otherwise apply to determine the number of hours an employee works. However, Judge Easterbrook decided that the process did not preempt state law and, because state law trumps the collective bargaining agreement, Kraft/Oscar Mayer has to compensate employees for the time it takes to put on and take off safety and protective gear, such as steel-toed boots, hard hats, and a smock that keeps other garments clean, as well as required hair nets and beard nets to protect the food. The company will have to pay employees for a few minutes both before and after their shift.
What Employers Should Do
Employers should review pay practices, whether negotiated or not, and determine which state laws apply and what exposure the organization, whether union or non-union, might have. As always, if I can help you or answer any questions, give me a call or e-mail me. Thanks.
Thomas P. Krukowski