Federal Employment Law Update – January 2017
EEOC Releases FY 2016 Enforcement and Litigation Data
On January 18, 2017, the Equal Employment Opportunity Commission (EEOC) released detailed breakdowns for the 91,503 charges of workplace discrimination the agency received in fiscal year 2016. This is the second year in a row that the number of charges filed with the EEOC has increased. The EEOC had previously released FY 2016 highlights.
Overall, the EEOC resolved 97,443 charges in FY 2016 and secured more than $482 million for victims of discrimination in private-sector and state and local government workplaces through voluntary resolutions and litigation, the commission reported. It also reduced the workload of pending charges by 3.8 percent to 73,508, its lowest pending charge workload in three years. The agency responded to over 585,000 calls to its toll-free number and more than 160,000 inquiries in field offices, reflecting the significant public demand for the EEOC’s services.
This is the first year that the EEOC has included detailed information about LGBT charges in its year-end summary. The agency said it resolved 1,650 charges and recovered $4.4 million for LGBT individuals who filed sex discrimination charges with the EEOC in FY 2016. Additionally, the data show a steady increase in the four years the agency has been collecting LGBT charge data. From FY 2013 through FY 2016, nearly 4,000 charges were filed with the EEOC by LGBT individuals alleging sex discrimination, and the EEOC recovered $10.8 million for these individuals.
Specifically, the charge numbers show the following breakdowns by bases alleged, in descending order:
- Retaliation: 42,018 (45.9 percent of all charges filed)
- Race: 32,309 (35.3 percent)
- Disability: 28,073 (30.7 percent)
- Sex: 26,934 (29.4 percent)
- Age: 20,857 (22.8 percent)
- National origin: 9,840 (10.8 percent)
- Religion: 3,825 (4.2 percent)
- Color: 3,102 (3.4 percent)
- Equal Pay Act: 1,075 (1.2 percent)
- Genetic Information Non-Discrimination Act: 238 (.3 percent)
These percentages add up to more than 100 because some charges allege multiple bases.
EEOC legal staff resolved 139 lawsuits and filed 86 lawsuits alleging discrimination in FY 2016. The lawsuits filed by the EEOC included 55 individual suits and 31 suits involving multiple victims or discriminatory policies. At the end of the fiscal year, the EEOC had 168 cases on its active docket, of which 48 (28.6 percent) involve challenges to systemic discrimination and an additional 32 (19 percent) are multiple-victim cases. It achieved a successful outcome in 90.6 percent of all suit resolutions, the agency reported.
Department of Labor Annual Penalty Adjustments
On January 18, 2017, the Department of Labor (DOL) issued a final rule adjusting for inflation the monetary penalties assessed or enforced by the DOL. The revisions were made pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, which requires the DOL to annually adjust its civil money penalty levels for inflation no later than January 15 of each year. The final rule is effective on January 13, 2017, and the increased penalty levels apply to any penalties assessed after the effective date of the rule.
OSHA Issues Recommended Practices for Anti-Retaliation Programs
On January 13, 2017, the Occupational Safety and Health Administration (OSHA) issued Recommended Practices for Anti-Retaliation Programs to help employers create workplaces in which workers feel comfortable voicing their concerns without fear of retaliation. The recommendations are intended to apply to all public and private sector employers covered by the 22 whistleblower protection laws that OSHA enforces.
The recommendations are adaptable to most workplaces, and employers may adjust them for such variables as number of employees, the makeup of the workforce, and the type of work performed. The concepts can be used to create a new program or enhance an existing one.
The document outlines five key elements of an effective antiretaliation program:
- Management leadership, commitment, and accountability.
- System for listening to and resolving employees’ safety and compliance concerns.
- System for receiving and responding to reports of retaliation.
- Antiretaliation training for employees and managers.
- Program oversight.
An initial draft of the document was posted for review and comment in the fall of 2015. OSHA incorporated many of those comments into the final document, as described here.
These recommendations are advisory only and do not interpret or create any legal obligations, or alter existing obligations created by OSHA standards or regulations.
FAQs about Affordable Care Act Implementation Part 37
On January 12, 2017, the Employee Benefits Security Administration (EBSA) issued Frequently Asked Questions (FAQs) About Affordable Care Act Implementation Part 37. The FAQs were prepared jointly by the Department of Labor (DOL), the Department of Health and Human Services (HHS), and the Treasury Department. The FAQs address the ability to integrate a health reimbursement arrangement (HRA) with a group medical plan sponsored by another employer.
HRAs are employer-funded and may be provided tax-free to employees provided they meet certain requirements. HRAs will be in compliance with the annual dollar limit prohibition and the preventive services requirements of the Patient Protection and Affordable Care Act (ACA) if they are “integrated” with other compliant coverage as part of a group health plan. Note that this provision no longer applies to qualified small employer health reimbursement arrangements (QSEHRAs), as provided in the 21st Century Cures Act.
The FAQs confirm that an HRA covering the medical expenses of employees and their spouses and dependents (family HRA) may be integrated with a group medical plan sponsored by another employer (such as the spouse’s employer) if that group medical plan meets all of the applicable integration requirements. In addition, a family HRA also will qualify as an integrated HRA if the employee has self-only coverage under the employer’s group medical plan and the employee’s spouse and dependents have coverage under another employer’s group medical plan (assuming that group medical plans meet the applicable integration requirements).
In addition, for purposes of determining whether a family HRA is integrated with a group medical plan sponsored by another employer, the employer sponsoring the HRA may rely on the reasonable representation of an employee that the employee and/or his or her spouse and dependents are also covered by another employer’s group medical plan that meets the integration requirements.