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.
Past EEOC Workplace Compliance News
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 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: