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Bloomberg BNA reports that the Equal Employment Opportunity Commission had a good year in FY 2015, which ended September 30. The agency collected more than $526 million in relief in all types of cases, involving federal as well as private-sector employees. If you have the ambition to read all 106 pages of the agency’s report, please be my guest.
For the rest of us, here are some graphics that will give you the picture in a hurry. All of the monetary figures are in millions. You can click on the images to enlarge.
Last week, we talked about 20 things an employer should ask itself before terminating an employee. In the interests of fairness, here are 10 things that an employee should ask before suing an employer. You should know that I generally don’t believe that lawsuits are the best way to resolve problems. (I realize that there are exceptions.)
BEFORE YOU GO ON, PLEASE READ THIS!!!! I represent employers only, not employees or applicants. This blog never contains legal advice, and especially not today. Reading this blog is no substitute for consulting with your own lawyer who is (1) on your side and (2) understands your situation.
You still care what I think? Great! Here we go.
1) Are you pretty confident that your employer didn’t just treat you inconsiderately, or unfairly, or stupidly, but actually violated the law? It’s not against the law to be an unfair employer, as unfair (heh) as that may seem. Even though I rail on a regular basis against employer favoritism, unfairness, poor communication, and the like, it’s not because these things are illegal — it’s because (a) they encourage employees to file lawsuits, and even a baseless lawsuit is an expense and hassle that most employers don’t need, and (b) being fair and even-handed with employees is the right thing to do. If your employer is a garden-variety jerk, then your best bet may be to find another job.
NOTE FROM ROBIN: This is the third and final installment of David Smith‘s series on the latest developments from the Occupational Safety and Health Administration. (But we hope he’ll be back soon!)
In August, OSHA issued a revised version of its 2006 Directive on the Agency’s National Emphasis Program on Amputations that includes an updated list of 80 industries, primarily in manufacturing, that are targeted for inspection based on the high number of amputations that have occurred in those industries since 2006.
The list of industries includes 49 that have been included for the first time. For the most part, these are various manufacturing industries.
The targeted industries are identified by their six-digit North American Industry Classification System codes. Inspections under the Program focus on any machinery or equipment likely to cause amputations, and according to OSHA’s press release on the revision “typically include an evaluation of employee exposures during operations such as: clearing jams; cleaning, oiling or greasing machines or machine pans; and locking out machinery to prevent accidental start-up.”
In Fiscal Year 2013 the amputation program resulted in 1,500 OSHA inspections and approximately 2,800 citations. According to the most recent data from the Bureau of Labor Statistics, manufacturing employers reported that 2,000 workers suffered amputations in FY 2013, and the rate of amputations in the manufacturing sector was more than twice as high (1.7 per 10,000 full-time employees) as that of all private industry (0.7 per 10,000 full-time employees).
Image Credits: Photo of David Smith from Constangy website. Detective from flickr, Creative Commons license, by Paurian.
NOTE FROM ROBIN: This post is by Ellen Kearns, head of our Boston Office and co-chair of our Wage and Hour Practice Group.
You have probably heard by now that Patricia Smith, Solicitor of Labor, announced at the annual labor and employment conference of the American Bar Association that a final rule on the white-collar exemptions to the overtime regulations will not be issued until late 2016, which was a shock for those who’ve been following this issue and expected a final rule to be imminent.
Ms. Smith said that the main reason for the delay was that 270,000 comments were received in response to the proposed rule, issued on June 30. However, she also said that only approximately 6,000 of those comments were substantive. The rest were presumably “form” comments, or otherwise non-substantive, which means the DOL should not have had to spend much time on those.
Could the real reason for the delay be that the DOL is seriously considering making changes to the duties test? In its Notice of Proposed Rulemaking the DOL asked for “additional information on the duties tests for consideration in the Final Rule.” Specifically,
[s]hould employees be required to spend a minimum amount of time performing work that is their primary duty in order to qualify for the exemption? If so, what should that minimum amount be? Should the Department look to the State of California’s law (requiring that 50 percent of an employee’s time be spent exclusively on work that is the employee’s primary duty) as a model?”
Ms. Berrien stepped down from the EEOC in 2014. The agency’s current Chair is Jenny Yang.
I did not always agree with Ms. Berrien, and I’ve given her what I hope she took as some good-natured grief about some of the EEOC’s positions under her leadership. (Assuming she paid any attention to this blog.) Nonetheless, I am very sorry to hear about her death, and we offer our condolences and prayers to her husband, Peter Williams, and to her family and friends.
Here is a statement from President Obama.
Many thanks to blogging colleague Jason Shinn who alerted us to this news.
Image Credit: U.S. Equal Employment Opportunity Commission.
So you think you’re ready to terminate an employee. Are you really?
Here are 20 questions that every employer should ask itself before going ahead with a termination. If you think I’ve missed anything, please feel free to add your own in the comments.
No. 1. Is the employee covered by a collective bargaining agreement? If so, make sure that whatever you do is consistent with the CBA.
No. 2. Is there a relevant employment policy? Have you read it lately? If the termination will be for attendance, have you reviewed your attendance policy? If for poor performance, have you reviewed your policies dealing with progressive discipline and performance improvement plans? If for misconduct, does your policy say that the alleged misconduct should result in termination?
No. 3. Is there a “past practice” for handling the issue that you are encountering with this employee? Are the options you are considering consistent with that practice?
Yesterday the U.S. Department of Labor began enforcement of its Home-Care Rule, which prohibits third-party employers from taking advantage of the overtime exemption for some domestic workers. The rule also narrows the definition of exempt “companionship services” under the Fair Labor Standards Act.
Ellen Kearns, co-chair of our firm’s Wage and Hour Practice Group, and I (mostly Ellen) wrote about this in more depth last month.
Although the Rule is being enforced, the DOL has said that it will exercise its prosecutorial discretion between now and the end of the calendar year, particularly for employers who have made good-faith efforts to comply.
NOTE FROM ROBIN: This is the second in a series by David Smith of our Occupational Safety and Health Practice Group on some of the latest developments from the agency.
Last week, I posted about OSHA’s expected final rule on a public database of workplace injuries and illnesses. While that expected rule would require employers to submit their injury and illness records to OSHA electronically so that they could be posted on a public database, employers are already required to call OSHA when certain severe injuries or illnesses occur, and OSHA plans to make the information it is collecting about those severe cases public as well.
One of the most alarming possibilities under that plan is that employers’ efforts to investigate those severe cases and address the workplace safety issues involved may be used against them.
To recap, OSHA announced last year its plans to post employer reports for some injuries and illnesses that result in hospitalization, amputation, or loss of an eye, and for all fatalities, on the Agency’s public website. The reports would then be readily available for unions, public interest groups, the media, and any other individuals or organizations to use for any purpose.
So far, only the fatality reports have been posted by OSHA, which led some observers to speculate that maybe the Agency had thought better of the plans and decided not to post any of the hospitalization reports.