Hunton Employment & Labor Perspectives

The proposed rule will likely increase the cost of defending against equal pay cases for all employers, not just government contractors and subcontractors.

First appeared in the September 23, 2014, edition of InsideCounsel

On the morning of September 10, in a signing ceremony held in Los Angeles, Governor Jerry Brown officially signed AB 1522 into law.  This law makes California the second state to guarantee paid sick leave to employees. Statewide studies reported that 44% of employees in the state of California did not have access to paid sick leave. This will change under the new law for the vast majority of these approximately 6.5 million employees.

Discover how the use of criminal background checks in the hiring process is creating an increasing exposure to liability. The Equal Employment Opportunity Commission (EEOC) is aggressively pursuing this issue to ensure the practice does not have a disparate impact on minority applicants. Additionally, plaintiffs' class action attorneys are pursuing employers nationwide for failing to conform their background check process with the dictates and protections of the federal Fair Credit Reporting Act. This webinar will highlight lessons learned in the trenches, and give insights on how to properly handle the sensitive use of criminal background check information.

The OFCCP (Office of Federal Contract Compliance Programs), an agency in the Department of Labor, continues its focus on “steering” claims during audits of federal contractors.  “Steering” claims examine whether women or minorities are discriminatorily assigned to less desirable jobs —  typically those with lower pay, less prestige, and/or fewer opportunities for advancement.  Steering claims are a hot topic of late for the federal contractor community. Central Parking Systems of Louisiana Inc. is the latest to pay out a six-figure settlement in this area.

The EEOC and the Mexican Ministry of Foreign Affairs recently signed a National Memorandum of Understanding (MOU). The purpose of the MOU, according to an EEOC press release, is to strengthen the collaborative efforts of the United States and Mexico to inform immigrant, migrant and Mexican workers of their rights under the EEOC’s non-discrimination laws. The MOU is also directed at employers, aiming to provide guidance on their responsibilities under the same laws.  The MOU was signed in both English and Spanish by EEOC Chair Jacqueline A. Berrien and Ambassador Eduardo Medina Mora, at the EEOC headquarters in Washington, D.C.

Executive Order 13672 went into effect on July 21, 2014 and amended Executive Order 11246 by adding sexual orientation and gender identity to the list of protected classes.  Executive Order 13672, however, applies only to contracts entered on or after July 21, 2014.  The Office of Federal Contract Compliance Programs (OFCCP) has now issued Directive 2014-02, which interprets the prohibition against sex discrimination in Executive Order 11246 to include discrimination on the basis of gender identity and transgender status.  This means that contractors and subcontractors with contracts that predate July 21 can still be held liable for discrimination on the basis of gender identity and transgender status.

A new law recently signed by Massachusetts Governor Deval Patrick mandates that public and private employers with 50 or more employees grant up to 15 days of unpaid leave in any 12-month period if the employee or a covered family member of the employee is a victim of abusive behavior.  The bill was signed into law on August 8 and became effective immediately.  Covered employers are required to notify employees of their rights and responsibilities under the law.

On August 11, 2014, New Jersey’s Governor Chris Christie signed into law the “Opportunity to Compete Act.”  Beginning on March 1, 2015, employers will be prohibited from publishing advertisements providing that the employer will not consider any applicant with an arrest or conviction record, and more importantly, employers will be prohibited from inquiring about applicants’ criminal records “during the initial employment application process,” orally or on job applications.  “Initial employment application process” is defined as the period beginning with the initial inquiry about prospective employment until the employer has conducted a first interview, determined the applicant is qualified, and selected the applicant as the employer’s first choice to fill the position.  If an applicant voluntarily discloses information regarding a criminal record, the employer may inquire about it.

The Affordable Care Act required the Department of Health and Human Services (HHS) to establish a national health plan identifier (HPID) program under the HIPAA standard transactions rules. The resulting HHS rules generally require all HIPAA-covered entities, including self-insured plans with more than $5 million in annual claims, to obtain a HPID by November 5, 2014. Small self-insured health plans (i.e., those with annual claims of $5 million or less) will be required to obtain a HPID by November 5, 2015.

In response to a presidential memorandum directing the Department of Labor (“DOL”) to collect summary compensation data from federal contractors and subcontractors to combat pay discrimination, the DOL’s Office of Federal Contract Compliance Programs (“OFCCP”) recently proposed a rule calling on certain federal contractors to submit reports on employee compensation.  The rule, published in the Federal Register on August 8, requires covered contractors to annually submit an “Equal Pay Report.” Covered federal contractors and subcontractors are those who:

• File EEO-1 reports;
• Have more than 100 employees; and
• Hold federal contracts or subcontracts worth $50,000 or more for at least 30 days.