The EEOC’s New Online Charge System

hot topicDon’t be surprised if you start getting more electronic communications from the Equal Employment Opportunity Commission.  The EEOC has initiated a new online pilot program to transmit documents electronically. This move, according to the EEOC, will streamline the submission of documents, notices, and communications. Companies will be able to (among many other things) review and download their charge on the system and– no worries– the EEOC will get notice after ten days if there is some error or spam filter that prevents the notice from being properly delivered.

The program is rolling out first in the Charlotte, Greensboro, Greenville, Norfolk, Raleigh, Richmond and San Francisco offices.  For those of us in Phoenix, we should expect to see the pilot program by the end of May 2015, and it is set to be in all offices by October 1. Companies can opt out of this program if they want to but, just as courts have moved towards electronic filing, it seems only natural that this would follow with administrative matters as well.

The EEOC has provided some answers to FAQ here, and the User Guide is here. I posted a while back about the Charge handling process for those who want the nuts and bolts of the process.

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Title III, Service Animals, and Other Accommodations

It seems like Title III ADA questions are coming up more and more often these days. I wrote about the basics of Title III a while back, and figured it is time to post on it again.

3d person at restaurantTypically when a company has questions relating to its obligations under the ADA, the questions relate to the company’s duties regarding its employees. Those obligations are addressed under Title I of the ADA. Title III, on the other hand, prohibits discrimination by public accommodations (e.g., restaurants, movie theaters, hotels, doctors’ offices, grocery stores, schools, museums) against disabled individuals.

The general rule under Title III is that:

[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.

42 U.S.C. § 12182(a).

This is the law that comes up when the news talks about a store that failed to allow a service animal to enter and, likewise, this law extends to issues with the actual construction of a building that present barriers for a person with a disability (i.e., a doorway not being large enough for a wheelchair to fit through).

ADA Final RegulationsWhile there are so many nuances in the law and topics that can be discussed, let’s start with service animals. The regulations define a “service animal” as “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” The work or tasks performed by a service animal must be directly related to the individual’s disability. (There is also a separate provision under the ADA about miniature horses that have been individually trained to do work or perform tasks for people with disabilities. In addition, state law may impose additional obligations, as may other federal laws that apply to certain industries.)

Examples of “work or tasks” include, but are not limited to guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items.

Service animals are not considered pets. Accordingly, a public accommodation is not permitted to ask about the nature or extent of a person’s disability, but may make two inquiries to determine whether an animal qualifies as a service animal: (1) if the animal is required because of a disability; and (2) what work or task the animal has been trained to perform. 28 C.F.R. § 36.302(c)(6).

When looking broadly at the obligations under Title III, there are four main categories of prohibitions but, like any law, there are exceptions. If this were a magazine, I would make the next chart one of those cardstock, tear-out sheets that you can put in your back pocket and reference. While this is just the tip of the iceberg of obligations that may exist and legal arguments that can be made under Title III (and doesn’t begin to contemplate individual state laws), it provides a general overview of the various buckets the Title III obligations can fall within.

Prohibition Exception
Imposing eligibility criteria that screen out individuals with disabilities. Unless such criteria can be shown to be necessary for the provision of goods, services, facilities, privileges, advantages, or accommodations being offered.
Failing to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities. Unless the modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or when the individual (or accommodation) poses a direct threat to the health or safety of others.
Failing to take steps necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently because of the absence of auxiliary aids and services (e.g., qualified interpreters, assistive listening systems, real-time captioning, written materials, etc.). Unless the modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations or would result in an undue burden.
Failing to remove architectural barriers and communication barriers that are structural in nature in existing facilities. Unless such removal is not readily achievable.*Note there are different requirements for facilities that are new construction and/or have been altered. In certain instances, if a barrier cannot be removed, then alternative methods must be employed that are readily achievable (e.g., providing curb service or home delivery, retrieving merchandise from inaccessible racks, or relocating activities to accessible locations).

 

In the near future, I anticipate we will have a lot more guidance on Title III issues that arise with websites. While the DOJ has stated that websites are covered by Title III, the Ninth Circuit (which includes the state in which I practice, Arizona), recently addressed whether web-only businesses (i.e., websites not connected to any brick and mortar physical place) are covered by Title III and came to the opposite conclusion. The Ninth Circuit found on April 1, 2015 that eBay could not be liable under Title III because its services are not tied to an actual, physical place.

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Ten Things Any Business Owner Can Do Today to Protect Their Company

Navigating employment laws can be an overwhelming task, but there are steps all companies can take to address risks and fix problems before they become costly mistakes.

  1. Update your Employee Handbook – Admit it. You have not looked at the thing since 2001. Things have changed. New laws have been passed. Regulations have been updated. The Employee Handbook is the book that guides your organization- covering everything from sick leave to overtime pay- and it is essential that it does not guide people astray.
  2. Develop a social media plan – Social media is everywhere. Your customers are using social media to engage with your company, and your employees are interacting daily on blogs and social networking accounts. Many companies are surprised to learn that federal law permits employees to engage in certain types of activity online and a company can actually violate the law if it terminates an employee in violation of these rights. It is important that clear protocols are established and that the policies are not so sweeping as to interfere with an employee’s legitimate rights. Developing a comprehensive social media policy not only addresses permissible and improper behavior of employees while online, but it clearly establishes privacy and ownership rights over company accounts and devices and contains protocols to respond to a social media “emergency”before it becomes a public nightmare.
  3. Count your employees – Seriously, I mean it. Different laws apply to companies of different sizes. There are some major thresholds that a company crosses when it expands from a seven-person shop to an office of 15 and then to a superpower of 100 employees. If you noticed you are outgrowing your offices, there is a good chance you are in need of a tune up as to which laws apply to your company.
  4. Prepare confidentiality agreements – Your most valuable assets are your employees and your information. Don’t let your employees walk off with your proprietary information. While there are some protections built into the common laws of various states, you can also require employees to sign agreements to protect your confidential and proprietary information. These agreements need to be narrowly tailored to your protectable interest and drafted in accordance with the laws of your state.
  5. Review your data privacy and security protocols – The laws are constantly evolving in this world. There was a time when the mom and pop shop did not have to worry about hackers stealing their information, but now there are legitimate threats out there that may jeopardize- not only the company’s information- but the private information of its employees and customers. Companies need to ensure that they are protected against breaches and cyber-attacks.
  6. Bring on the BYOD policy – No, I am not talking about a BYOB party from your college years, I am referring to “Bring Your Own Device” policies. It is becoming more the norm than the exception to the rule for companies to allow employees to check their work email on their personal phone. A BYOD policy addresses this arrangement and sets the ground rules for what happens in various scenarios- such as if the employee is terminated, if data is compromised, and the process if the company needs to delete data or company emails from the phone.
  7. Revamp your applications– Oftentimes, the first thing prospective employees read when they come to your company is your application. It is the most general of documents, but it is also a minefield for legal issues. Some questions are simply unlawful to ask on a job application- such as questions relating to an employee’s arrests or an employee’s protected class (race, religion, color, national origin, sex, age, disability, veteran status, or any characteristic protected by applicable law).
  8. Train, train, train your employees – And when you think you have trained them enough, train them again. Training involves more than just the run-of-the-mill “this is how you do your job” approach. Supervisors should get sexual harassment training to help avoid any potential issues and so that the company can utilize appropriate defenses if a lawsuit is nonetheless brought by an employee. All employees should take part in safety training as companies have an obligation to provide a safe and healthy work environment. Job-specific training helps boost productivity and morale as employees will further develop their own niche and expertise.
  9. Audit job classifications – Do you have independent contractors working for your company? Do you have salaried employees who are not eligible for overtime pay? These are the types of positions that are prime targets for lawsuits and should be the focus of an audit. An audit is essentially a third party (such as outside counsel) coming in and reviewing the various job classifications and ensuring that everything is compliant with local, state, and federal law. There are a myriad of factors that need to be considered when evaluating compliance and just because a company and a worker agree to a certain arrangement does not mean it is necessarily lawful.
  10. Check the Form I-9s – Make sure they are properly completed by employees and retained by the company. Failing to properly verify an individual’s identity and eligibility to work can have serious consequences for a company.

*Just for clarity, I am not your attorney and this post is not legal advice (nor are any of the posts on this site). If you need legal advice, you should seek the advice of an attorney practicing in your jurisdiction.

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Live from the White House – An Inside Perspective of the State of the Union

IMG_5176As I told some of my colleagues– prior to this week, I had never been to Washington, D.C., but when the White House invites me, I go. Over 31.7 million people tuned in to watch President Obama give the State of the Union on Tuesday, January 20, 2015, and I had the honor of being invited by the White House to watch the State of the Union at the White House and take part in the post State of the Union White House chat with senior-level White House officials. During the post-SOTU chat, we heard from Sam Stein, Political Editor of the Huffington Post, and Dan Pfeiffer, Senior Advisor to President Obama. Part II included other senior officials, including Secretary of Labor, Thomas Perez.

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The Main Event

042_smallMy particular interest in attending the event is two-fold. I wanted to hear more about the President’s community college initiative. As many of the regular readers of the blog know, I serve on the Board of Directors of the Maricopa Community College Foundation which receives and manages gifts on behalf of the Maricopa Community College District’s ten colleges, two skill centers, and multiple satellite centers. As one of the largest educational systems in the nation, the District educates a quarter million students annually. I recently spoke more about my involvement on Sonoran Living on ABC15. In the President’s SOTU spoilers, he had just announced his plan to make two years of community college free for deserving and qualifying students, and I knew it would inevitably be a focus on the State of the Union.

010_smallEqually important- and hopefully all readers know this about me by now- anything new and groundbreaking related to employment law is top on my list of “things I need to know every detail about ASAP.” The President’s plan to mandate seven days of paid leave for workers falls on that list. Right now, companies are not required to provide paid leave– except for limited instances when they may be required to provide leave for voting, jury duty, witness leave, etc. (Those laws vary by state).

Since social media was encouraged at this event to further promote engagement with those watching (or even just interested in) the State of the Union, I live-tweeted the State of the Union, as did the other attendees. The room was a mix of professors, leaders in various industries, social media gurus and bloggers, and some big advocates and supporters of community colleges. Having only watched State of the Union from my home in the past, it was electric to be surrounded by people cheering, shouting out responses, ooh’ing and aah’ing (particularly for the picture of toddler Obama on his bike), and applauding the progress and job growth we have seen over the past year.

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The State of the Union 

Spoiler alert: “The State of the Union is strong.” The President covered a lot of areas in his speech, but I’ll focus on just a few that brought me to D.C. and have likely brought you to this blog.

“My fellow Americans, we too are a strong, tight-knit family. We, too, have made it through some hard times.”

Businesses should be particularly interested to hear that jobs are being created at the fastest pace since 1999. The unemployment rate is lower than it was before the financial crisis. Wages are starting to rise and more small businesses are raising employees’ pay now than at any time since 2007. In addition, American manufacturers have added almost 800,000 new jobs.

One major theme in the SOTU is that investing in one’s workforce is in a company’s long-term interest. I think this is something that we see throughout the superstar companies of our state. Spending the time to make everything right on the front-end– with policies, procedures, practices, and training– is worth it in the long run.

Another major point that President Obama made and Secretary Perez emphasized at the post-SOTU chat is that, in the 20th century, making high school free allowed us to train the best workforce in the world. The next step, as they have explained, is making community college free and attainable to everyone. This is important because, by the end of the decade, two of three job openings will require some higher education.

“That’s why I am sending this Congress a bold new plan to lower the cost of community college – to zero.” – President Obama

“Community colleges are the secret sauce to success in America.” – Secretary Perez at the post-SOTU chat

“I want to spread that idea all across America, so that two years of college becomes as free and universal in America as high school is today.” – President Obama

Companies should be excited about this vision as a skilled workforce can only benefit businesses and allow them to grow and compete in a global marketplace.

IMG_5214There were tons more topics addressed that are incredibly important– including gay marriage, relations with Cuba, and even ebola. If you want to read the State of the Union, you can here, or you can watch it here.

What Companies Should Expect

We will be hearing more about the paid leave initiative over the forthcoming months. And, this was not mentioned in the SOTU, but the proposed regulations relating to the white-collar exemptions will likely be issued by the Department of Labor in February.

The President has also asked Congress to pass legislation to address the threat of cyber attacks. I expect that, in the future, companies will have clearly defined reporting obligations in the event there is a breach in online/cyber security. Next month, a report will be issued by the White House that will detail steps that are being taken to strengthen privacy.

Since we were encouraged to engage with others on social media during the White House State of the Union Social, you can check out the play-by-play on my Twitter account: @Employment_Atty. Here are some of my 140 character tweets (mixed with some from the White House and others) below:

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I am interested to see where President Obama’s initiatives may go and whether states will back the community college proposal which currently requires 25% of the funding to come from the states. And, since it’s the time of year for the annual recap, I suppose I should share that The State of the Blog is strong. Thanks for reading.

Secretary of Labor - Thomas Perez

Secretary of Labor – Thomas Perez

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Is Your Company Complying with the New OSHA Reporting Requirements?

Employers under federal OSHA’s jurisdiction are now required to report all work-related fatalities within 8 hours and all in-patient hospitalizations, amputations, and losses of an eye within 24 hours of finding about the incident.

Companies can call the nearest area office during normal business hours, the 24-hour OSHA hotline at 1-800-321-OSHA (1-800-321-6742), or (at a later date… likely in mid-January) companies can make a report online at www.osha.gov/report_online.

If a company is in a state that has a state-run plan (such as Arizona), those states may vary with implementation dates.

A fancy diagram that shows whether you need to report an injury/fatality was prepared by the Department of Labor and is available below or here.

OSHA flow

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