September 11, 2014
HunterMaclean partner Sarah Lamar discusses recent changes in employment law in her third quarterly legislative update for the Society for Human Resource Management (SHRM):
Legislation: Fair Pay and Safe Workplaces Executive Order
Status: Signed by President Obama on 7/31/14
Purpose: To compel federal government contractors to (1) disclose employment-related violations of 14 federal statutes and executive orders (Title VII, E.O. 11246, OSHA, NLRA, FLSA etc.); (2) provide non-exempt employees with information regarding hours worked, OT, and pay deductions each pay period; and (3) prohibit contractors with contracts in excess of $1 million from requiring employees to agree pre-dispute to arbitrate claims. The E.O. does not prohibit an employee from agreeing to arbitration post-dispute.
Comment: Item 1 does not apply to voluntary settlements or pending claims, although the contractor must update its disclosures periodically during the life of the contract. Item 2 seems unnecessary given most employers’ current practice of giving out pay stubs with employee paychecks/direct deposit. Item 3 could have a significant impact on the litigation of employment claims.
Legislation: Amendment to Executive Order 11246
Status: Signed into law by President Obama on 6/21/14
Purpose: To expand the legally protected classifications under E.O. 11246 from race, sex and national origin to also include sexual orientation and gender identity. The law will take effect after promulgation of regulations by the U.S. DOL, which are expected within 90 days of the date of the E.O.
Comment: The law affects all federal employment and federal government contractors, but not other private employers. The Employment Non-Discrimination Act (ENDA), which would prohibit discrimination based on gender identify and sexual orientation, is stalled in Congress. Many states have already passed laws prohibiting discrimination on these bases. Georgia is not one of them.
Regulatory Requirements: EEOC Releases Guidance on Pregnancy Discrimination Act
Effective Date: 7/14/14
Purpose: The guidance addresses the impact of the ADA on pregnancy-related conditions, light duty requirements, avoiding stereotyping the abilities of pregnant employees and health benefit issues relating to pregnancy, among other topics.
Comment: Misunderstanding of obligations under the PDA still exists. It is worth reading the enforcement guidance.
Regulatory Requirements: OSHA and NLRB Join Forces (MEMORANDUM OM 14-60)
Effective Date: 5/21/14
Purpose: OSHA has entered into a program with the NLRB that refers untimely OSHA whistleblower claims to the NLRB for processing. The Occupational Safety & Health Act provides that a whistleblower must make a complaint within 30 days of the complained-of action. However, the National Labor Relations Act provides for a 6-month statute of limitations. As many complaints under the OSH Act would also be complaints under the NLRA, the two agencies have joined forces. OSHA estimates that up to 600 whistleblower cases per year are dismissed as untimely.
Comment: This type of coordination among agencies is not new and seems especially prevalent under the current administration (i.e., IRS and DOL coordinating regarding misclassification of employees).
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