Several federal agencies have taken action impacting four key employment matters: pay transparency, whistleblower investigations, when multiple businesses might be considered joint employers and potential LGBT discrimination. Here’s a breakdown:
1. The Office of Federal Contract Compliance Programs published a final rule implementing President Barack Obama’s executive order endorsing pay transparency. The rule alters OFCCP regulations to forbid federal contractors from terminating or discriminating against applicants or workers who ask about, discuss or reveal their own compensation or the compensation of other applicants or associates. Also, all new federal contracts or subcontracts must include a new, precisely worded equal opportunity stipulation. In addition, federal contractors must include a detailed nondiscrimination provision in current employee handbooks or policy manuals, as well as display an amended equal employment poster in the workplace.
2. The Occupational Safety and Health Administration released a new whistleblower investigations manual. The former manual directed investigators to dismiss a case if the complainant was unable to produce enough evidence to support the claim under the applicable whistleblower statute. In addition, the former manual stated that even if the complainant was able to establish the prima-facie elements of the whistleblower law, the case would be dismissed if the company provided clear and persuasive evidence the adverse action would have been taken regardless of protected activity. The new manual instructs investigators that the burden of proof is simply whether “OSHA has reasonable cause to believe a violation occurred.” The question now is whether a reasonable judge will rule in the complainant’s favor after weighing all the evidence.
3. The Department of Labor’s Wage and Hour Division administrator released guidance for deciding when organizations will be deemed joint employers under the Fair Labor Standards Act and Seasonal Agricultural Worker Protection Act. The guidelines might lead to multiple enterprises considered to jointly employ the same person, resulting in joint and separate liability for compliance with both laws. The new guidelines recognize two categories of joint-employer relationships. During an investigation, the DOL will determine whether a particular case will be analyzed under horizontal or vertical employment, or both. A vertical joint-employment relationship exists when the “employee has an employment relationship with one employer (typically a staffing agency, subcontractor, labor provider or other intermediary employer) and the economic realities show that the individual is economically dependent on, and thus employed by, another entity in the work.” Horizontal joint employment might occur if two or more corporations each distinctly employ someone, but remain “sufficiently associated” regarding the individual. Although not binding law, the interpretation provides useful insight regarding the mindset of the most prominent labor law watchdog in the country.
4. The Equal Employment Opportunity Commission filed its first lawsuits against companies, alleging sexual-orientation discrimination under Title VII of the Civil Rights Act. The section prohibits discrimination based on the protected classes of race, color, religion, sex and national origin. The EEOC contends that Title VII’s protections encompass sexual orientation as a form of discrimination based upon sex. Currently, 31 states and many municipalities have laws extending protection from discrimination based on sexual orientation and gender identity. In addition, amendments to Executive Order 11246 forbid federal contractors from discriminating against LGBT staff members. Anticipate additional litigation and EEOC investigations in this area.
Lynne Haggerman, M.S., is president/owner of Lynne Haggerman & Associates LLC, a Springfield firm specializing in management training, retained search, outplacement and human resource consulting. She can be reached at lynne@lynnehaggerman.com.
