Salary History – Several states and cities have banned employers from asking applicants about their salary history, most recently San Francisco. On July 19th San Francisco’s mayor signed the Parity in Pay Ordinance, which becomes effective July 1, 2018. Currently six states have a similar ban and 17 states are proposing a ban. Proponents of these measures argue that asking for salary history perpetuates the pay gap from employer to employer (women making less before will often wind up making less in their new jobs). Even if your state has not instituted this ban, it is a good time to consider making a change in your company’s applications process. During a potential investigation it would be difficult to prove that an applicant’s salary history was not a factor in determining their starting pay.
EEO-1 and Vets-4212 – The Department of Labor (DOL) sent a letter clarifying the data dates and deadlines for the EEO-1 and Vets-4212 reports. Starting in 2018, contractors can use December 31, 2017 as their snapshot date for both the EEO-1 and Vets-4212 reports, but the Vets-4212 deadline will remain the same. Current Acting EEOC Chair Victoria Lipnic spoke at the National Industry Liaison Group (NILG) conference saying she does not think the new EEO-1 report will help achieve equal pay for equal work. She wants a final decision about the compensation component by the end of August, so contractors will know soon if they need to submit summary compensation data as part of the new EEO-1 report.
OFCCP – Tom Dowd and Debra Carr from the OFCCP spoke at the NILG conference. Mr. Dowd expressed a strong desire to work more closely with the contractor community. The OFCCP also requested more feedback from contractors about their experience during OFCCP audits. Many contractors have been reluctant to communicate directly with the OFCCP outside of an audit, fearing retaliation if they submit a poor review. It is best to communicate through the NILG conference, so comments are anonymous.
Other Highlights from the NILG Conference – Many speakers at the NILG conference predict Equal Pay is not going away. Pay should be equal for “similarly situated employees.” This is work that requires equal skill, effort, and responsibility, and is performed under similar working conditions. Several states have passed or proposed laws on equal pay. Starting in July 1, 2020, California might require employers with 500 or more employees to annually publish gender pay differences for employees exempt under white collar exemptions and board members.
Employment Non-Discrimination Act (ENDA) is a proposed amendment to Title VII that would make employment discrimination based on Sexual Orientation and Gender Identity unlawful. Most federal courts have found Title VII does make Gender Identity discrimination unlawful.
The delay to seat DOL Labor Secretary Acosta and Acosta moving very slowly to install his team means former Obama Administration policies and operations will continue for now until new leadership will take office. The OFCCP is currently still operating as if the former director, Pat Shiu, is still there.
NLRB Confirmations – Recently the US Senate confirmed Marvin Kaplan for the National Labor Relations Board (NLRB). William Emanuel is awaiting confirmation. After Emanuel is confirmed there will be a 3 to 2 Republican majority on the NLRB.
Recent EEOC and OFCCP Cases – This is the most press releases and settlements we have seen from the EEOC in the shortest amount of time.
- EEOC sued Lincoln Cemetery based on a retaliation claim against a veteran employee who participated in a discrimination investigation – August 22, 2017
- EEOC sued residential care provider, Silverado, for alleged pregnancy discrimination surrounding a termination – August 22, 2017
- EEOC sued Macy’s for alleged disability discrimination surrounding a termination – August 18, 2017
- EEOC sued Long Island-Based A&F Fire Protection for alleged race and national origin harassment and retaliation – August 17, 2017
- Ford Motor Company will pay up to $10.125 Million to settle an EEOC harassment investigation- August 17, 2017
- New York’s B&H Foto agreed to pay $3,220,000 in back wages and other monetary relief to more than 1,300 affected class members following an OFCCP investigation surrounding allegations of systemic hiring, compensation, and promotion discrimination – August 14, 2017
- EEOC sued Dependable Health Services for alleged disability discrimination surrounding a termination – August 14, 2017
- EEOC sued AT&T Pacific Bell for disability discrimination, for allegedly denying a deaf employee’s request for a sign language interpreter – August 8, 2017
- UPS will pay $2 million to resolve EEOC’s disability discrimination claims which focused on the company’s leave and accommodations policies – August 8, 2017
- Bass Pro will pay $10.5 million to settle an EEOC lawsuit having to do with alleged hiring discrimination and retaliation – July 25, 2017