HR TIP OF THE MONTH
If Retaliation Claims Still Are Not On Your Radar, You Need To Adjust Your Antenna.
As discussed below, the U.S. Equal Employment Opportunity Commission recently issued new enforcement guidance on how broadly (very) it interprets the anti-retaliation protections contained in the various employment discrimination statutes the agency enforces. These statutes contain provisions that make it unlawful for an employer to take an adverse employment action against any employee or applicant who engages in a protected activity. A protected activity can be either participating in an EEO process (including internal investigations according to the EEOC) or opposing a perceived unlawful EEO practice. The new guidance will sound familiar to employers who work their employment counsel regularly on discipline and internal investigation issues. But the most obvious take away from this new guidance for employers is: it is not reasonable any longer to conduct an internal investigation or discipline employees without “checking-in” with your employment counsel first. That 15 minute check in can often times avoid a claim or, if a claim arises, ensure that the company has a defense..
REGULATORY UPDATE
EEOC’s New Enforcement Guidance on Retaliation Claims
The U.S. Equal Employment Opportunity Commission (“EEOC”) recently issued new enforcement guidance on retaliation claims under the various federal employment laws it enforces, which include Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), and the Age Discrimination in Employment Act (“ADEA”). This new guidance is significant not only for the agency’s interpretation of what acts constitute retaliation but also because many states follow the EEOC’s lead in interpreting their own State employment discrimination laws. The new guidance confirms what labor and employment attorneys have known for some time: that retaliation claims have been on the rise for several years and they are often more difficult to defend than traditional discrimination claims. That is because the employer actions that constitute an “adverse employment action” for a retaliation claim are far broader than for a discrimination claim. With the new guidance, the EEOC issued a question and answer sheet that employers should review as the start to implementing workplace training to supervisors and managers so they do not engage in retaliatory behavior.
The Department of Labor’s Response to the Recent Lawsuit Regarding Overtime Regulations
In another attempt to limit the revised white collar overtime exemptions, which are set to go into effect on December 1, 2016, several states and business groups have filed two federal lawsuits in the Eastern District of Texas to stop one part of the new regulations. Neither New Jersey nor New York joined the lawsuits. The lawsuits challenge both the initial raise of the salary basis (from $455/week to $913/week) as well as the automatic inflation-linked adjustments every three years. The U.S. Department of Labor issued a statement defending the revised regulations. Employers in New Jersey and New York (and elsewhere for that matter) should not rely on these lawsuits succeeding and should still be planning to comply with the revised regulations effective December 1, 2016.
Brach Eichler Employment Services Group attorneys represent employers of all sizes in New Jersey and New York in connection with their labor and employment needs. Our services range from compliance and counseling advice to defending employers in court against claims of wage and hour violations, unlawful employment practices, discrimination and retaliation. We encourage you to contact Brach Eichler Employment Services Group for all of your labor and employment law issues.
