Equal Employment & Labor Relations Workplace Compliance News & Resources
Employers are required to provide a fair and equitable workplace, free from discrimination and using fair labor practices. Although two separate and independent government agencies, the Equal Employment Opportunity Commission (EEOC), and the National Labor Relations Board (NLRB) help to ensure employers uphold these workplace directives.
The EEOC investigates discrimination complaints based on race, color, national origin, religion, sex, age, disability, sexual orientation, gender identity, genetic information, and retaliation for reporting, participating in, and/or opposing a discriminatory practice. The NLRB is responsible for enforcing labor laws related to collective bargaining agreements and unfair labor practices.
Here is the news we’ve seen this year from the EEOC and NLRB. Be sure to seek legal counsel when you’re looking for how these changes will directly impact your business.
Who: Construction employers
When: Effective immediately
On June 18, 2024, the Equal Employment Opportunity Commission (EEOC) released additional guidance on preventing workplace harassment in the construction industry. The guidance recommends that construction employers adopt certain core practices, but states that those practices could also be helpful in other industries. The practices include:
- Committed and engaged leadership;
- Consistent and demonstrated accountability;
- Strong and comprehensive harassment policies;
- Trusted and accessible complaint procedures; and
- Regular, interactive training tailored to the audience and the organization.
The guidance asks employers to monitor the actions of their subcontractors and staffing agencies to ensure they are adhering to their harassment prevention commitments and to provide resources to their subcontractors as necessary. The EEOC points out that a successful harassment prevention program relies on leadership’s consistent and demonstrated commitment to maintaining a culture where harassment is unacceptable. It’s important to clearly and frequently communicate that message to employees.
The guidance describes the elements employers should include in a comprehensive anti-harassment policy and provides guidance on how and where to communicate the policy. The guidance explains the elements of a good complaint procedure and system and how the general contractor can oversee and coordinate that process. Employers should provide multiple channels to report complaints. Lastly, the guidance describes best practices for providing anti-harassment training.
How:
- Ensure your harassment prevention policies, procedures, and training align with the recommended practices.
Additional Resources:
Promising Practices for Preventing Harassment in the Construction Industry
Who: All employers
When: Effective immediately
Workplace harassment laws protect employees against discrimination based on race, color, religion, sex (including sexual orientation, gender identity, and pregnancy), national origin, disability, age (40 and older), and genetic information.
The U.S. Equal Employment Opportunity Commission (EEOC) released updated guidance on workplace harassment on April 29, 2024. The guidance went into effect the same day; it is not a binding legal document. The purpose of the guidance is to help employers provide safe, respectful work environments. The final rule is a single, unified resource that replaces five guidance documents published between 1987 and 1999.
The updated guidance explains the legal standards applicable to harassment claims under federal employment discrimination laws. It covers the basics of how to prove harassment, how to determine when an environment becomes “hostile,” and when an employer may be liable for harassment. The guidance provides additional protections for LGBTQ+ workers; pregnancy-related medical conditions, including lactation, contraception, and abortion; and religious expression.
The guidance includes numerous examples of scenarios that may be construed as harassment and checklists of what to include in an anti-harassment policy and anti-harassment training. It also incorporates current case law and addresses how digital and social media content can contribute to a hostile work environment.
How:
- Review the new guidance and update your anti-harassment policies as needed.
- Review your anti-harassment training to ensure you meet the guidelines for preventing workplace harassment.
- Train managers on the new guidance.
Additional Resources:
Enforcement Guidance on Harassment in the Workplace
Summary of Key Provisions: EEOC Enforcement Guidance on Harassment in the Workplace
Who: Private and public employers with 15 or more employees
When: Effective June 18, 2024
The federal Pregnant Worker’s Fairness Act (PWFA) went into effect on June 27, 2023, and clarifies pregnant employees’ rights and employer responsibilities. The law requires private and public employers with 15 or more employees to provide reasonable accommodations to job applicants and employees with limitations related to medical conditions related to pregnancy or childbirth.
The law covers “qualified employees,” which are defined as employees or applicants “who, with or without reasonable accommodation, can perform the essential functions of the position.” The only exception is if the employer is unable to provide reasonable accommodation due to undue hardship.
The EEOC submitted a proposed rule on August 11, 2023, to clarify the PWFA and asked for public comment. The final rule goes into effect on June 18, 2024. The regulation clarifies the PWFA as follows:
- Employers may be required to provide accommodation for employees who temporarily cannot perform essential functions for up to 40 weeks, unless it would impose undue hardship.
- Employers may consider several factors listed in the final rule when determining if temporarily suspending an essential function will cause undue hardship.
- Certain accommodations, referred to as “predictable assessments,” are assumed not to cause undue hardship on the employer: to carry water and drink as needed during the workday; to take additional restroom breaks; to sit when their work requires standing, and standing when their work requires sitting; and to take breaks as needed to eat and drink. As before, employers must engage in an interactive process with the employee to determine the appropriate accommodations.
- Employers can require documentation supporting the accommodation request only if it is reasonable under the specific circumstances in order to determine whether to grant the accommodation. The regulation gives several examples of when it is not reasonable to request documentation.
- The definition of “pregnancy, childbirth or related medical conditions” is broad and includes termination of pregnancy, lactation, menstruation, infertility, fertility treatment, use of contraception, pregnancy-related sickness, and current, past, and potential pregnancy.
- Employers must consider a number of potential accommodations, including those listed in the final rule and others as appropriate for the situation.
Employers need to keep in mind that other federal, state, and local pregnancy laws may have more stringent requirements than the PWFA.
How:
- Review the final rule and the EEOC’s summary of its key provisions.
- Review your internal policies on reasonable accommodation for medical conditions related to pregnancy or childbirth.
- Train management and HR personnel about the law.
- Consult with legal counsel to ensure compliance with the law.
Additional Resources:
Implementation of the Pregnant Workers Fairness Act Final Rule
What You Should Know About the Pregnant Workers Fairness Act
Pregnancy Discrimination and Pregnancy-Related Disability Discrimination
Summary of Key Provisions of EEOC’s Final Rule to Implement the Pregnant Workers Fairness Act (PWFA)
Who: All employers
When: Effective immediately
The new NLRB joint employer rule was supposed to go into effect on March 11, 2024, but a federal judge has blocked it. Under the law, an entity is considered a joint employer if they have the right to exercise indirect control over one essential term and condition of employment, whether or not they exercise said control. On Friday, March 8, 2024, Judge J. Campbell Barker of the U.S. District Court for the Eastern District of Texas ruled that the joint-employer test is unlawfully broad and therefore invalid.
The ruling means that the old, rescinded 2020 joint employer rule is in effect once again. To be considered a joint employer, the company must exercise “substantial direct and immediate control” over the essential terms and conditions of employment: wages, benefits, hours, hiring, discipline, supervision, and firing.
How:
- Update your agreements to comply with the 2020 joint employer rule.
- Limit your exposure to circumstances or contract language that would lead to you being named a joint employer.
- Continue to monitor for legal challenges.
Additional Resources:
Who: Federal contractors and subcontractors
When: Submit comments by April 1, 2024
On January 29, 2024, the Federal Acquisition Regulatory Council issued a proposed rule titled “Pay Equity and Transparency in Federal Contracting” and is seeking public comments on the rule by April 1, 2024. The proposed rule prohibits federal contractors from using a person’s salary history when setting their pay. Under the rule, federal contractors and subcontractors would not be able to ask about the applicants’ compensation history or consider such history when making employment decisions.
The rule would also require federal contractors to post the expected salary or wage range in job postings related to a federal contract, along with a description of the benefits and other types of compensation. They must also provide a notice to applicants to inform them about their rights under the law, either in the job posting or as part of the application process. An applicant may submit a complaint to the contracting agency point of contact within 180 days of an alleged violation.
How:
- Submit comments on the proposed rule on the Federal Register by April 1, 2024.
Additional Resources:
Advancing Pay Equity in Governmentwide Pay Systems
Equal Pay Act of 1963 and Lilly Ledbetter Fair Pay Act of 2009
Who: Federal contractors, employers that receive federal funds, and government agencies
When: Effective immediately
On September 29, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Labor published a resource guide titled “Employment Protections Under the Rehabilitation Act of 1973: 50 Years of Protecting Americans with Disabilities in the Workplace.” The Rehabilitation Act prohibits employers from discriminating based on an individual’s disability. It applies to federal contractors, other programs receiving federal funds, and government agencies.
The Rehabilitation Act of 1973 prohibits disability discrimination in the workplace under Section 501, which covers federal government agencies. Those regulations are enforced by the EEOC. Under Section 503, the Rehabilitation Act applies to federal contractors and subcontractors. Those regulations are enforced by the Office of Federal Contractor Compliance Programs (OFCCP).
The guide provides resources to employers covered under Sections 501 and 503 that are related to recruiting, hiring, and employing individuals with disabilities and summarizes the provisions of the law. The guide also provides suggestions for best practices when it comes to recruiting, hiring, retention, and advancement practices as they relate to people with disabilities.
How:
- Post the Pay Transparency Nondiscrimination Provision and Know Your Rights Poster.
- Review the disability resource guide to understand the basic requirements of Sections 501 and 503, what additional resources are available, where to find help, and the regulations and laws.
- Review your hiring and compensation policies to ensure compliance with the law.
Additional Resources:
Who: All employers
When: Comments due by November 1, 2023
On September 29, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) released proposed updated guidance on workplace harassment. Workplace harassment laws protect employees against discrimination based on race, color, religion, sex (including sexual orientation, gender identity, and pregnancy), national origin, disability, age (40 and older), and genetic information.
In the proposed guidance, the agency explains the legal standards applicable to harassment claims under the federal employment discrimination laws it enforces. It covers the basics of how to prove harassment, how to determine when an environment becomes “hostile,” and how an employer can be liable for harassment. The guidance provides additional protections for LGBTQ+ workers; pregnancy-related medical conditions, including lactation, contraception, and abortion; and religious expression.
The proposed guidance includes many updated examples to reflect different types of scenarios and checklists of what to include in an anti-harassment policy and anti-harassment training. It also incorporates current case law and addresses how digital and social media content can contribute to a hostile work environment.
The public is invited to comment on the proposed Enforcement Guidance on Harassment in the Workplace until November 1, 2023. The final guidance will update and replace all previous guidance that was issued in the late 1980s and 1990s.
How:
- Review the proposed guidance and comment by November 1, 2023.
- Monitor for the release of the final guidance.
- Review your anti-harassment policies and training materials and update them as needed to comply with the final guidance.
- Train managers on the requirements of the law.
- Ensure you are up to date on your state and local anti-harassment laws.
Additional Resources:
Federal Register Proposed Enforcement Guidance on Harassment in the Workplace
EEOC PROPOSED Enforcement Guidance on Harassment in the Workplace
Proposed Enforcement Guidance on Harassment in the Workplace
Who: All employers
When: Effective immediately
On September 21, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) released its strategic enforcement plan for fiscal years 2024 through 2028. The document, which is effective September 22, 2023, describes the agency’s enforcement priorities for the next five years. The EEOC’s purpose is to protect workers against discrimination in the workplace, promote fair and inclusive workplaces, and create equal opportunity for all workers.
The EEOC stated several priorities:
- Improving recruitment and hiring practices by addressing policies and practices that affect protected-status workers
- Protecting more vulnerable and underserved workers who may be unaware of their rights, may be reluctant or unable to exercise their rights, or have historically been underserved by federal employment discrimination protections
- Classifying certain issues as emerging and developing, namely protecting workers impacted by pregnancy, childbirth, or related medical conditions; workers impacted by the long-term effects of COVID-19; and workers who are unfairly impacted by the use of technology (AI)
- Advancing equal pay for all workers, including the traditionally underrepresented: women and people of color, especially in specific industries and sectors
- Eliminating barriers in recruitment and hiring related to employers’ increasing use of technology in the hiring process
- Protecting access to the legal system, including addressing the use of overly broad waivers, releases, nondisclosure agreements, or nondisparagement agreements
- Preventing and remedying systemic harassment, partly by promoting comprehensive anti-harassment programs and practices
The EEOC intends to make its enforcement efforts more consistent and has committed to supporting employers in their efforts to identify barriers to equal employment opportunities and create more inclusive workplaces. Litigators and investigators will give more attention to claims that fall under the priorities listed in the strategic enforcement plan.
How:
- Identify barriers to equal employment opportunities and establish diversity, equity, inclusion, and accessibility practices in the workplace.
Additional Resources:
Strategic Enforcement Plan for Fiscal Years 2024-2028
Who: Private employers with 100 or more employees; covered federal contractors with 50 or more employees and $50,000 in contracts
When: Portal opens October 31, 2023
The U.S. Equal Employment Opportunity Commission (EEOC) previously postponed the deadline for reporting 2022 EEO-1 demographic data from mid-July 2023 to the fall of 2023. The EEOC data portal will now open on October 31, 2023, and employers have until December 5, 2023, to submit their data.
EEO-1 data details the racial, ethnic, and gender composition of an employer’s workforce by job category. The law covers private employers with 100 or more employees and covered federal contractors with 50 or more employees and $50,000 in contracts.
The EEOC released a new 2022 EEO-1 Component 1 Data Collection Instruction Booklet and a 2022 EEO-1 Component 1 Data File Upload Specifications guide for employers. These publications are intended to help streamline the reporting process.
How:
- Submit your 2022 EEO-1 data by December 5, 2023.
- Monitor for additional resources on the 2022 EEO-1 Component 1 data collection website.
Additional Resources:
2022 EEO-1 Component 1 Data Collection Website
2022 EEO-1 Component 1 Data Collection Instruction Booklet
2022 EEO-1 Component 1 Data File Upload Specifications
Who: All employers
When: Effective immediately
The U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Labor’s (DOL) Wage and Hour Division signed a Memorandum of Understanding on September 13, 2023. The purpose of the partnership is to enforce federal laws and regulations that advance equal employment opportunity and fair pay. The Memorandum describes how the agencies will coordinate more effectively to share information, conduct joint investigations, give trainings, and conduct public outreach.
Information the agencies may share includes complaint and investigative files relating to violations of the laws they enforce; reports that employers file, such as EEO-1 Reports or FLSA records, and statistical analyses or summaries.
If agency personnel think the other agency would deem conduct unlawful, they will advise the complainant that they can file a complaint with the other agency. If both agencies find cause to investigate, they will determine if it makes more sense for one or the other to proceed. When appropriate, the agencies will work together to conduct an investigation.
The agencies will continue to partner on trainings and work together on additional future events to engage employers and raise awareness about the PUMP Act, the Pregnant Workers Fairness Acts (PWFA) of 2022, and other federal laws. The Memorandum also specifies that agencies may train each other’s personnel on identifying cases for each other’s agencies and issue joint technical assistance documents and joint policy statements.
How:
- Review and update all policies and practices to ensure compliance with employment labor laws.
- Provide training to leadership, payroll staff, and HR personnel on relevant employment labor laws.
Additional Resources:
Who: Private employers with 100 or more employees; covered federal contractors with 50 or more employees
When: Effective immediately
The federal government requires employers to submit certain workforce data for the October to December time period each year, with the deadline usually occurring in March. For 2022 data, the Equal Employment Opportunity Commission (EEOC), which initially postponed the deadline to mid-July, now has delayed it again to fall of 2023.
The delay is due to the EEOC completing a mandatory, three-year renewal of the EEO-1 Component 1 data collection by the Office of Management and Budget under the Paperwork Reduction Act.
How:
- Monitor the EEOC website for the date the portal will open and the deadline for 2022 EEO-1 data.
Additional Resources:
Who: All employers
When: Effective immediately
On July 26, 2023, the Equal Employment Opportunity Commission (EEOC) released a document titled “Visual Disabilities in the Workplace and the Americans with Disabilities Act,” which explains how to apply the Americans with Disabilities Act (ADA) to applicants and employees with a visual disability. It does not have the force or effect of law and provides clarity about existing law.
The guidance covers:
- When an employer may ask an applicant or employee about vision impairment and how to handle voluntary disclosures;
- The types of reasonable accommodations a person with visual disabilities may need;
- How to address employer safety concerns; and
- How to prevent harassment of employees with visual disabilities.
Employers should not ask about visual impairments before making a job offer. After making a job offer, an employer may inquire about vision impairment as it applies to the applicant’s ability to do the job, as long as they are consistent in their practices. Employers need to keep medical information confidential, with limited exceptions. Asking current employees about visual disabilities is permissible only when the employee requests an accommodation, when the employer believes the employee’s ability to perform essential job functions is impaired, when the employer believes said impairment poses a direct threat in the workplace, and under other strictly limited circumstances.
When an employee requests a reasonable accommodation, the employer must engage in the interactive process before denying accommodation. Accommodations may include screen readers, website accessibility, use of sunglasses, use of service animals, schedule changes, brighter lighting, work area adjustments, or other accommodations that would allow the employee to safely perform essential job duties.
Employers who have concerns about safety issues caused by a visual disability should conduct an ADA direct threat analysis to assess potential risk and determine if a reasonable accommodation would reduce or eliminate risk.
To prevent harassment, employers should provide anti-harassment training, discourage harassment in written policies and oral statements at staff meetings, encourage prompt reporting of incidents, conduct immediate and thorough investigations of incidents, and take appropriate corrective action.
If employers use artificial intelligence tools to evaluate candidates, they must ensure that the tools do not screen out or disadvantage applicants with visual disability. If an applicant requests reasonable accommodation with respect to an employer’s use of algorithms or AI, the employer must make an accommodation.
Employers may not retaliate against a worker for requesting a reasonable accommodation or exercising their rights under the ADA.
How:
- Update your policies, procedures, and training materials as needed to comply with the ADA.
Additional Resources:
Visual Disabilities in the Workplace and the Americans with Disabilities Act
Who: Employers with 15 or more workers
When: Effective immediately
The U.S. Equal Employment Opportunity Commission (EEOC) released an updated “Know Your Rights: Discrimination is Illegal” poster. The new poster adds worker rights and protections under the Pregnant Worker’s Fairness Act (PWFA), which went into effect on June 27, 2023. The law covers exempt and non-exempt employees.
The Pregnant Worker’s Fairness Act (PWFA) law requires private employers with 15 or more employees to provide reasonable accommodations to job applicants and employees with medical conditions related to pregnancy or childbirth. It applies to “qualified employees,” which is defined as an employee or applicant “who, with or without reasonable accommodation, can perform the essential functions of the position, with specified exceptions.”
Employers must replace the October 2022 version of the poster with the April 2023 version to comply with the PWFA.
How:
- Post the updated “Know Your Rights” poster.
Additional Resources:
Know Your Rights Workplace Discrimination is Illegal Poster English
Know Your Rights Workplace Discrimination is Illegal Poster Spanish
Who: All employers
When: Effective immediately
On April 25, 2023, the Federal Trade Commission (FTC), the Civil Rights Division of the U.S. Department of Justice (DOJ), the Consumer Financial Protection Bureau (CFPB), and the U.S. Equal Employment Opportunity Commission (EEOC) jointly released an official statement on their efforts to address discrimination and bias when using automated systems. They define automated systems as software and algorithmic processes, which includes artificial intelligence (AI).
The statement warns that automated systems can perpetuate unlawful bias and discrimination when applied to credit decisions, housing availability, and employment opportunities. The statement gives an overview of each agency’s position on the use of AI and links to key AI-related documents published by each agency. The statement summarizes sources of potential discrimination and bias, including:
- Insufficient or faulty data and datasets,
- Lack of transparency in how the system works, and
- Faulty design and use.
The agencies concluded by saying that they will use their collective authority to protect individuals’ rights.
How:
- Evaluate automated decision-making outcomes for potential bias and discriminatory impact.
- Control for biases in training datasets.
- Enhance your risk-assessment and compliance-management systems as needed to detect, remediate, and prevent risks stemming from use of automated systems.
- Review how you will use automated systems going forward.
Additional Resources:
Joint Statement on Enforcement Efforts Against Discrimination and Bias in Automated Systems
Who: All employers
When: Effective immediately
On May 18, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) released technical guidance on the use of advanced technology, including artificial intelligence, in employment decisions. The guidance is titled “Select Issues: Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964.” It states that employers may not use advanced technologies to discriminate when hiring, promoting, or terminating employees.
The guidance defines “artificial intelligence” as “a machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations or decisions influencing real or virtual environments,” in accordance with the National Artificial Intelligence Initiative Act of 2020.
Some uses of advanced technology that can potentially lead to discrimination are resume scanners, employee-monitoring software, virtual assistants or chatbots, video-interviewing software, and testing software that provides job fit or cultural fit scores—any of which can violate Title VII of the Civil Rights Act. Employers that use a third party to administer their workplace processes are liable for that third party’s unlawful discrimination under Title VII.
The EEOC guidance is part of its Artificial Intelligence and Algorithmic Fairness Initiative, which works to ensure that advanced technology employers use to make hiring and other employment decisions complies with the federal civil rights laws the EEOC enforces.
How:
- Review your use of advanced technology to ensure it does not result in discrimination.
- Work with legal counsel to ensure compliance.
Additional Resources:
Who: Private employers with 100 or more employees; covered federal contractors with 50 or more employees
When: Portal opens mid-July 2023
The Equal Employment Opportunity Commission (EEOC) collects certain demographic data about the workforce pursuant to Section 709(c) of Title VII of the Civil Rights Act of 1964. The purpose is to evaluate trends and help prevent workplace discrimination against protected classes of workers. EEO-1 Component 1 data includes information about employee race, ethnicity, gender, and job categories.
The EEOC has set a tentative timeframe of mid-July 2023 for opening their EEO-1 data collection portal. Private employers with 100 or more employees and covered federal contractors with 50 or more employees may enter their 2022 data once the portal opens.
How:
- Monitor the EEOC website for updates.
Additional Resources:
EEO-1 Component 1 Fact Sheet: Report Types
Frequently Asked Questions (FAQs) EEO-1 Component 1 Data Collection
Who: All employers
When: Effective immediately
On January 24, 2023, the Equal Employment Opportunity Commission (EEOC) released updated guidance that explains how the Americans with Disabilities Act (ADA) impacts applicants and employees with hearing disabilities, including:
- Easy-to-access technologies that help accommodate those with hearing disabilities;
- Workplace safety;
- Disability-related questions that can violate the Americans with Disabilities Act (ADA); and
- Examples of workplace discrimination.
The document helps educate employers about their responsibilities and employees about their rights.
How:
- Review your hiring and accommodation practices and policies to ensure compliance with the guidance.
Additional Resources:
Hearing Disabilities in the Workplace and the Americans with Disabilities Act
EEOC Disability-Related Resources
Who: All employers
When: Comment by February 9, 2023
On January 10, 2023, the Equal Employment Opportunity Commission (EEOC) published a draft Strategic Enforcement Plan (SEP) for fiscal years 2023 through 2027. The agency is seeking comments on the draft plan from the public until February 9, 2023, on regulations.gov.
The plan contains the agency’s priorities for enforcing federal laws that prohibit employment discrimination. It addresses the removal of recruitment and hiring barriers (with a particular focus on the use of artificial intelligence), prohibition of employment discrimination against vulnerable workers, expansion of laws, enforcement of equal pay laws, access to justice, and prevention of systemic harassment.
How:
- Review your policies and update them to comply with the proposed plan.
- Review your automated hiring software to ensure it is legally compliant.
- Audit your compensation practices to ensure compliance with equal pay laws.
Additional Resources:
Draft 2023-2027 Strategic Enforcement Plan (SEP)
What You Should Know about the EEOC’s Strategic Enforcement Plan (SEP)
Who: Employers with 15 or more employees
When: Effective immediately
On October 19, 2022, the Equal Employment Opportunity Commission (EEOC) released a new workplace discrimination poster, then released a revised version on October 20, 2022. The poster is titled, “Know Your Rights: Workplace Discrimination Is Illegal,” and provides information on employment discrimination laws and rights and how to file a complaint.
The new Know Your Rights poster replaces the old “EEO Is the Law” poster and the EEO Is the Law supplemental poster. Employers must post it in a conspicuous location in the workplace, where they customarily post notices to applicants and employees. The EEOC also encourages employers to post the notice digitally in a conspicuous location on the company website.
The new poster uses straightforward language and formatting. It lists protected classes and explains that harassment is a prohibited form of discrimination. It states that sex discrimination includes discrimination based on pregnancy and related conditions, sexual orientation, and gender identity. It includes information about equal pay discrimination for federal contractors.
The new poster also has a QR code that allows quick access to the EEOC’s website from a smartphone or compatible digital device. Covered employers are subject to fines for noncompliance.
How:
- Post the new Know Your Rights: Discrimination Is Illegal poster in the workplace, and make sure it is the October 20 version rather than the October 19 version.
Additional Resources:
“Know Your Rights: Workplace Discrimination Is Illegal” Poster English
“Know Your Rights: Workplace Discrimination Is Illegal” Poster Spanish
Who: United States employers and employees
When: Effective immediately.
What: On July 12, the EEOC revised the workplace COVID-19 testing screening guidance found within What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
Per the new guidance, US employers are free to determine whether COVID-19 testing is required at the workplace, pending the workplace and community circumstances of the pandemic.
Employers can implement workplace COVID-19 screening testing for employees under necessary conditions determined by:
- Severity of current COVID-19 variant(s)
- Ease of transmissibility of the current COVID-19 variant(s)
- Level of community transmission
- Vaccination status of employees
- Accuracy and speed of processing for different types of COVID-19 viral tests
- Possibility of breakthrough infections despite vaccination
- Types of contacts employees may have with others in the workplace (i.e., working with vulnerable individuals)
- Potential impact on the business if an employee enters the workplace with COVID-19
Other revisions from the EEOC include updated guidance on screening applicants for COVID-19, mandatory vaccination against COVID-19, and return to work policies.
How:
- Review your current policies and procedures and update them to comply with the new guidance.
- Educate and inform your employees about state mandates and safety protocols.
Additional Resources:
What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws
Who: All employers
When: Effective immediately
What: On May 12, 2022, the Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) each issued guidance documents to help employers comply with the Americans with Disabilities Act (ADA) when using artificial intelligence (AI) tools to make hiring and promotion decisions.
Software that uses algorithms to make HR decisions may violate Title I of the ADA. Ways in which employers can violate Title I using AI decision-making tools are:
- The employer does not provide a reasonable accommodation that the applicant or employee needs for the AI to fairly and accurately rate them.
- The AI screens out an individual with a disability even though that person performs or could perform the essential functions of the job with a reasonable accommodation (if one is legally required).
- The AI violates restrictions on disability-related inquiries and medical examinations.
The testing technology must evaluate job skills, rather than disabilities such as sensory impairment or speaking skills. Tasks completed by AI that could introduce bias are:
- Ruling out people based on their answers to pre-programmed questions;
- Scoring resumes;
- Rating employees based on keystrokes;
- Evaluating facial expressions and speech patterns; and
- Scoring applicants’ personality traits.
The EEOC suggests informing applicants about the traits or characteristics that the AI will measure and notifying them that reasonable accommodation is available. The agency also suggests giving an alternative test or evaluation if the applicant scores poorly due to a disability.
Employers must promptly address a person’s request for reasonable accommodation unless it causes undue hardship. They must store records of such requests and accommodations separate from the individual’s personnel file.
How:
- Regularly review your artificial intelligence HR software to evaluate disability bias.
- Provide reasonable accommodation to individuals being evaluated by your AI, if it does not cause undue hardship.
- Train staff on the proper use of algorithmic decision-making tools to ensure compliance with Americans with Disabilities Act (ADA).
- Continue to monitor for additional guidance and regulations.
Additional Resources:
Who: Private employers with 100 or more employees; federal contractors with 50 or more employees
When: Due by June 21, 2022
What: The Equal Employment Opportunity Commission (EEOC) has granted a short extension for filing 2021 EEO-1 reports. The due date was May 17, 2022. The EEOC is sending a notice of failure to file to those employers who do not file by the May 17 deadline, instructing them to file as soon as possible but no later than June 21, 2022.
Private employers with 100 or more employees or federal contractors that meet certain criteria and have at least 50 employees must file the EEO-1 data, which includes race/ethnicity, sex, and job category. Employers with 50 or fewer employees must now use the Type 8 Report instead of the Type 6 Report to submit their data.
The EEOC will not accept 2021 EEO-1 Component 1 Reports after June 21, 2022. After that time, non-filers will be deemed out of compliance.
How:
- File your EEO-1 report by June 21, 2022.
Additional Resources:
Who: United States employers and employees
When: Effective immediately
What: On March 1, 2022, the Equal Employment Opportunity Commission updated its guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, to include further information regarding religious accommodations related to COVID-19 vaccination objections. Section L of the guidance now includes the following questions and answers related to vaccine objection:
- 1. Do employees who have a religious objection to receiving a COVID-19 vaccination need to tell their employer? If so, is there specific language that must be used under Title VII?
- 2. Does an employer have to accept an employee’s assertion of a religious objection to a COVID-19 vaccination at face value? May the employer ask for additional information?
- 3. How does an employer show that it would be an “undue hardship” to accommodate an employee’s request for religious accommodation?
- 4. If an employer grants some employees a religious accommodation from a COVID-19 vaccination requirement because of sincerely held religious beliefs, practices, or observances, does it have to grant all such requests?
- 5. Must an employer provide the religious accommodation preferred by an employee if there are other possible accommodations that also are effective in eliminating the religious conflict and do not cause an undue hardship under Title VII?
- 6. If an employer grants a religious accommodation to an employee, can the employer later reconsider it?
In addition to providing clarity on these topics, the EEOC has also released a religious accommodations request form for its own organization as a guide for employers and employees. Individuals who are not employed by the EEOC should not submit this form to the EEOC.
How:
- Review your current policies and procedures and update them to comply with the new guidance.
- Educate and inform your employees about federal and local mandates and safety protocols.
Additional Resources:
Section L. Vaccinations — Title VII Religious Objections to COVID-19 Vaccine Requirements
Who: Private employers with 100 or more employees; covered federal contractors with 50 or more employees
When: Submit data by May 17, 2022
What: The Equal Employment Opportunity Commission (EEOC) collects certain demographic data about the workforce pursuant to Section 709(c) of Title VII of the Civil Rights Act of 1964. The purpose is to evaluate trends and help prevent workplace discrimination against protected classes of workers. EEO-1 Component 1 data includes information about employee race/ethnicity, gender, and job categories.
The EEOC has set a tentative date of April 12, 2022, for opening their EEO-1 data collection portal. Private employers with 100 or more employees and covered federal contractors with 50 or more employees may enter their 2021 data until May 17, 2022. This is a shorter time period given for reporting than in the past.
Filers who submitted a Type 6 Report for the 2019 or 2020 EEO-1 Component 1 data must submit a Type 8 Report from now on. In the past, multi-establishment filers were allowed to submit a Type 6 Establishment List Report or a Type 8 Establishment Report for establishments with fewer than 50 employees. Now they must submit a Type 8 Report, which includes employee data categorized by race/ethnicity, gender, and job category.
How:
- Report your EEO-1 Component 1 data between April 12, 2022, and May 17, 2022.
Additional Resources:
2021 EEO-1 Component 1 Data Collection
EEO-1 Component 1 Fact Sheet: Report Types
Frequently Asked Questions (FAQs) EEO-1 Component 1 Data Collection
Past NLRB Workplace Compliance News
Who: All employers
When: Effective December 26, 2023
On October 26, 2023, the National Labor Relations Board (NLRB) issued a final rule that goes into effect on December 26, 2023. The rule helps employers determine if they are a “joint employer” and expands the circumstances under which a company is considered a joint employer. The final rule reverses and replaces the joint employer test adopted by the Board in 2020. This rule applies only to the National Labor Relations Act, not any other federal or state law.
If two or more employers share or codetermine matters governing employees’ essential terms and conditions of employment under section 29 CFR §103.40(a) and (b), they are considered joint employers. The essential terms and conditions of employment include:
- Wages, benefits, and other compensation;
- Hours of work and scheduling;
- The assignment of duties to be performed;
- The supervision of the performance of duties;
- Work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline;
- The tenure of employment, including hiring and discharge; and
- Working conditions related to the safety and health of employees.
If an employer has the right to exercise control over any of those terms, they are considered a joint employer—even if they never exercise said control or would have to go through an intermediary to exercise control.
The NLRB will hold joint employers liable for unfair labor practices and for not collectively bargaining over any term or condition of employment that they have the authority to control. Joint employers may now be subject to legal strikes and picket lines that they weren’t subject to before.
How:
- Review your relationships and contracts with outside vendors, contractors, staffing agencies, and other third parties to determine if you are a joint employer with any of those entities.
- Consider amending your contracts with vendors and other third parties to state that your business has no right to control any of the seven terms listed in the rule.
- Continue to monitor for legal challenges to the rule.
- Train managers and supervisors who oversee the work of another entity’s employees to avoid taking any actions that suggest your company has direct or indirect control over the other entity’s employees.
Additional Resources:
Standard for Determining Joint Employer Status
29 CFR 103.40 (Joint Employers)
NLRB Fact Sheet: NLRB Joint Employer Standard-2023 Final Rule
Who: All employers
When: Effective March 11, 2024
The original effective date of the National Labor Relations Board’s new joint employer rule was December 26, 2023. The effective date was then delayed until February 26, 2024. On February 22, 2024, District Court Judge J. Campbell Barker issued an order to further delay the effective date to March 11, 2024. The rule helps employers determine if they are a “joint employer” and expands the circumstances under which a company is considered a joint employer.
If an employer has the right to exercise control over these essential terms and conditions of employment, they are considered a joint employer:
- Wages, benefits, and other compensation;
- Hours of work and scheduling;
- The assignment of duties to be performed;
- The supervision of the performance of duties;
- Work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline;
- The tenure of employment, including hiring and discharge; and
Working conditions related to the safety and health of employees.
How:
- Continue to monitor for updates.
- Review your relationships and contracts with outside vendors, contractors, staffing agencies, and other third parties to determine if you are a joint employer with any of those entities.
- Consider amending your contracts with vendors and other third parties to state that your business has no right to control any of the seven terms listed in the rule.
- Train managers and supervisors who oversee the work of another entity’s employees to avoid taking any actions that suggest your company has direct or indirect control over the other entity’s employees.
Additional Resources:
Standard for Determining Joint Employer Status
Who: All employers
When: Effective immediately
On May 30, 2023, Jennifer Abruzzo, General Counsel of the National Labor Relations Board, issued GC Memorandum 23-08. The memo is guidance only and is not legally binding for employers.
The memo states that, in general, noncompete agreements violate Section 7 of the National Labor Relations Act (NLRA). Section 7 states that employees are allowed the “right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
The NLRA protects non-managers and non-supervisors and prohibits employers from interfering with employees who exercise their rights under Section 7 of the NLRA. The memo states that noncompete agreements limit employees’ right to quit or change jobs. Based on this guidance, the NLRB will likely void a noncompete agreement the employer enters into solely to avoid competition from former employees, retain employees, protect trade secrets, or protect their investment in employee training.
Employers must also be aware of state limitations on noncompete agreements and other restrictive covenants.
How:
- Review and evaluate your restrictive covenants and noncompete agreements. Update as needed in cases where they are overly restrictive.
- Consult with legal counsel to ensure your policies and procedures are in compliance.
Additional Resources:
Who: All employers
When: Effective immediately
On May 1, 2023, the National Labor Relations Board (NLRB) decided the Lion Elastomers LLC II (372 NLRB No. 83) case. Lion Elastomers, a synthetic rubber manufacturer, fired a worker in 2017 after his heated discussion with managers about working conditions during a safety meeting.
The NLRB ruled that the conduct did not rise to the level of creating a hostile work environment and was a protected concerted activity under the National Labor Relations Act (NLRA). They ordered the company to reinstate the employee.
The decision overrules the NLRB’s 2020 decision in General Motors and requires employers to consider several “setting-specific” factors before taking adverse employment action against an employee for outbursts to management in the workplace, including:
- The place of the discussion;
- The subject matter of the discussion;
- The nature of the employee’s outburst; and
- Whether the outburst was, in any way, provoked by an employer’s unfair labor practice.
For an employee’s use of social media and conversations among employees at work, the employer must consider the “totality of the circumstances.” When the employee engages in the conduct in question while on a picket line, the employer must consider whether the conduct reasonably tends to coerce or intimidate non-striking employees.
The decision will make it more difficult for employers to discipline or fire workers who use offensive language and or engage in offensive behavior when they are involved in a protected activity.
How:
- Review your policies and procedures and update them to comply with the law.
- Consider consulting with competent counsel regarding new procedures under Lion Elastomers.
- Train managers on the law.
Additional Resources:
Lion Elastomers: NLRB Case Number 16-CA-190681
Who: All employers
When: Effective immediately
The National Labor Relations Board (NLRB) issued a memo to the agency’s field offices on March 22, 2023, with guidance relating to the Board’s decision in McLaren Macomb case. In the ruling, the Board stated that the employer could not require employees to broadly waive their labor law rights when offering a severance agreement and declared those provisions void.
The memo gives guidance on how to interpret the McClaren ruling, the scope and effect of the decision, and the kinds of provisions that could violate Section 7 of the National Labor Relations Act. The NLRB’s General Counsel (GC) advised that employers must narrowly tailor confidentiality provisions, namely, to apply only “proprietary or trade secret information for a period of time based on legitimate business justifications.” She also stated that employers must narrowly tailor a non-disparagement provision to one that meets her definition of defamation, and even then, it may be considered unlawful.
Further, the GC said that the McLaren decision applies to any employer communication that unnecessarily infringes on employee rights. The memo also stated that certain provisions may be interfere with an employee’s ability to exercise their rights under Section 7 of the National Relations Labor Act, including:
- Non-compete clauses
- Non-solicitation clauses
- Non-poaching clauses
- Language that too broadly defines “employer”
- Cooperation clauses
Savings clauses, disclaimers, and severability clauses do not automatically cure overly broad provisions.
The memo states that the McLaren decision applies retroactively from February 21, 2023. From now on, an unlawful proffer of an agreement is subject to a six-month statute of limitations. Continuing to maintain or enforce previously agreed-upon unlawful provisions is not a time-barred offense, however. Employers may continue to enforce the legal provisions of existing severance agreements, but they must notify the employees that the overly broad provisions are no longer applicable or enforceable.
How:
- Review your severance/separation agreements and revise as needed to comply with the decision.
- Consider the impact on other agreements, such as employment contracts, settlement agreements, and employee handbooks.
- Consult with counsel regarding communication with existing and former employees who are parties to severance/separation agreements.
Additional Resources:
Guidance in Response to Inquiries about the McLaren Macomb Decision GC-23-05 Memo
Who: All employers
When: Effective immediately
February 21, 2023, the National Labor Relations Board (NLRB) issued a decision in McLaren Macomb. In the case, an employer offered severance agreements to furloughed employees that contained confidentiality and nondisparagement provisions as follows:
Confidentiality Agreement. The Employee acknowledges that the terms of this Agreement are confidential and agrees not to disclose them to any third person, other than spouse, or as necessary to professional advisors for the purposes of obtaining legal counsel or tax advice, or unless legally compelled to do so by a court or administrative agency of competent jurisdiction.
Non-Disclosure. At all times hereafter, the Employee promises and agrees not to disclose information, knowledge or materials of a confidential, privileged, or proprietary nature of which the Employee has or had knowledge of, or involvement with, by reason of the Employee’s employment. At all times hereafter, the Employee agrees not to make statements to Employer’s employees or to the general public which could disparage or harm the image of Employer, its parent and affiliated entities and their officers, directors, employees, agents and representatives.
The NLRB held that employers may not offer severance agreements with broad confidentiality or nondisparagement clauses to union and non-union employees who are not supervisors, managers, or otherwise exempt from the NLRA. The NLRB found that the mere offer of severance agreements to employees containing these provisions violated the NLRA, regardless of whether the employees agreed to sign the agreements.
How:
- Review your separation agreements and seek legal counsel to ensure compliance with the law.
Additional Resources:
Who: All employers
When: Effective immediately
On October 3, 2022, the National Labor Relations Board (NLRB) ruled on the Valley Hospital Medical Center, Inc. case and stated that employers may not unilaterally discontinue collection of union dues and remittance to the union after the related collective bargaining agreement expires. They must continue to deduct union dues from an employee’s wages and remit them to the union even after the associated agreement expires.
On a split decision, the majority of the NLRB members found no persuasive reason to treat dues checkoff agreements differently from similar voluntary deduction agreements that remain in place after the contract expires. The NLRB applied the change retroactively to all pending cases where the dues checkoff provision is at issue unless such application will “work a manifest injustice.”
How:
- Review your documentation related to union dues deductions and update as needed.
Who: All employers
When: Comments due by November 7, 2022
The National Labor Relations Board (NLRB) is soliciting comments on a proposed rule for determining joint-employer status until November 7, 2022.
The current rule for determining joint-employer status under the National Labor Relations Act went into effect on April 27, 2020, and will be replaced by the new proposed rule, should it go into effect. Employers should follow the current rule until the NLRB releases a final version of the Standard for Determining Joint-Employer Status.
The current rule states that an employer is a joint employer if it has direct and immediate control over the essential terms and conditions of employment of the other entity’s workers. The proposed rule defines joint employers as two or more employers that share control of or codetermine employees’ essential terms and conditions of employment. It also states that an employer will be determined to share such control if they have the authority to directly or indirectly control essential terms and conditions, even if they don’t exercise it.
The proposed rule expands the definition of essential terms and conditions. It states that they include, but are not limited to, wages, benefits, scheduling, hiring, disciplining, firing, workplace health and safety, supervision, assignments, and work rules.
The proposed rule would also define many employers as joint employers that previously were not, thereby increasing those employers’ liability for alleged labor law violations. The proposed rule changes the focus from the current rule’s “direct and immediate control” standard to an “indirect, reserved” control standard to determine joint-employer status. Specifically, the proposed rule provides that employers can be deemed joint employers when either has the ability to “share or codetermine those matters governing employees’ essential terms and conditions of employment.”
How:
- Submit comments on the proposed rule by November 7, 2022.
- Monitor for issuance of the final rule.
Additional Resources:
