Employment law activity heats up at the federal level

With COVID-19 seeming to have abated for now, the federal agencies and Congress have turned their attention to implementing key Biden administration priorities, including those relating to employment laws, regulations, and guidance. Employers still working on normalizing operations should not ignore the heightened level of employment-focused activity taking place in Washington D.C.

Here are some issues to watch in the coming months:

The DOL agencies get busy

In February, the Department of Labor reported that it was looking to hire 100 new investigators for its team.  Based on recent announcements from the DOL’s Wage and Hour Division (WHD) and the Office of Federal Contract Compliance Programs (OFCCP), we now know what some of those new hires will be working on.  

• Wage and Hour Division to focus on retaliation investigations - On March 10, 2022, the WHD issued an enforcement directive emphasizing its commitment to enforcing the retaliation provisions of the laws that it administers. Generally, laws such as the FMLA and FLSA and other enforced by the WHD prohibit employers from discharging, disciplining, intimidating, penalizing, blacklisting, or otherwise discriminating against an employee based on the belief that the employee engaged in protected activity under one of those laws. The WHD’s directive indicates that it will pursue all available remedies where it finds retaliation, including back pay, punitive damages, job reinstatement, liquidated damages, and civil money penalties.

  Employer takeaways: In an environment of heightened enforcement activity, it is more important than ever for employers to ensure that managers are properly trained to understand retaliation and that employee complaints are promptly addressed and appropriately resolved. 
   

• The OFCCP targets pay equity audits - The Biden administration has made clear that pay equity is a top priority.  As part of a series of announcements related to Equal Pay Day on March 15, the OFCCP issued a Pay Equity Audit Directive emphasizing it will step up review of government contractors' compensation analysis practices that are a required element of the annual affirmative action plan process.

  The OFCCP’s directive indicates that as part of some compliance reviews the agency will start directly requesting production of internal pay equity audits that contractors are required to perform under the OFCCP regulations. Requests could include information regarding “the frequency of pay equity audits, the communication to management, and how the results were used to rectify disparities based on gender, race and/or ethnicity.

  Employer takeaways: With the OFCCP renewed focus on compensation analysis and pay equity, federal government contractors should ensure that they are conducting an annual pay equity analysis that meets the requirements of the OFCCP’s regulations. Employers are advised to conduct the analysis under the advice of counsel although it may be necessary to waive the privilege if OFCCP seeks information.

U.S. House passes employment bills

The U.S. House of Representative also found time to turn its attention to employment issues in March.  

• Continued limits on arbitration agreements - In early March, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, which limits pre-dispute arbitration related to sexual harassment and assault. Buoyed by its success at passing that legislation on a bi-partisan basis, the House went back to work to take a bigger bite out of employment arbitration.

  On March 17, 2022, the House passed the Forced Arbitration Injustice Repeal Act (FAIR Act), which would prohibit all pre-dispute mandatory arbitration provisions in certain contexts. In terms of employment-related claims, the FAIR Act would prohibit pre-dispute mandatory arbitration agreements related to both employment and civil rights disputes. 

• The CROWN Act - Following legislative efforts in many states, the House also addressed the issue of hairstyle discrimination by passing the Creating a Respectful and Open World for Natural Hair, or CROWN Act in March. This legislation would add a new protected classification to federal employment and other discrimination laws, prohibiting employers from taking adverse action based on hairstyles associated with persons of a particular race or national origin.

Employer takeaways:  At this point, both the FAIR Act and the CROWN Act are expected to face uphill battles in the Senate. Employers should keep these issues are their radar, but should not expect much movement.

EEOC issues new guidance  

• EEOC guidance addresses caregiver discrimination.  As part of the Biden administration’s pay equity focus, on March 15, the EEOC issued new guidance regarding discrimination against employees or applicants who are caregivers. Essentially, the guidance relates to how caregivers may be impacted by COVID-19 related responsibilities and how that may result in discrimination when it is based on:
  • any EEOC protected characteristic, such as sex (including pregnancy, sexual orientation, or gender identity), race, national origin, disability, age (40 and above) or genetic information;
  • associational discrimination, that is, the caregiver’s association with an individual with a disability, or other protected characteristic “of the individual receiving care;” or
  • intersectional discrimination, or the intersection of two or more EEOC protected characteristics (e.g., caregivers of a certain sex and race).

    ​Examples of the types of conduct considered impermissible caregiver discrimination, include:

    • Declining to hire or promote a female employee, based on the belief that “she would (or should) focus primarily on caring for her young children while they attend school remotely;”
    • Denying male employees permission to telework…“to perform pandemic-related caregiving obligations….while granting such requests when made by similarly situated female employees.”
       
• EEOC focus on LGBTQI+ equity and inclusion.  On Transgender Day of Visibility, March 31, 2022, the EEOC announced a renewed focus on LGBTQI+ equity and inclusion by giving individuals the option to select a nonbinary “X” gender marker during the voluntary self-identification questions that are part of the intake process for filing a charge of discrimination.

  The EEOC also indicated that it will update the voluntary demographic questions relating to gender in the online public portal and modify its charge of discrimination form to include “Mx.” in the list of prefix options.

  Employer takeaways: Employers should take note that the EEOC’s new guidance subtlety expands on the scope of existing protected class coverage. Employers must understand that the EEOC is taking of broad view of the protections within its purview.

With the Biden administration now past the one year mark, the federal agencies and Congress are beginning to move on the employment-law related priorities announced when the President Joe Biden took office. With new guidance and announcements coming regularly, employers should monitor updates and consult with their McDonald Hopkins employment counsel to ensure on-going compliance.