The Reinvigorated Federal Agencies Under the Obama Administration

Transcription

1 The Reinvigorated Federal Agencies Under the Obama Administration How the EEOC, DOL, OSHA, and Other Federal Agencies Are Revamping Their Investigative Process

2 Bush-Era Employment Agencies Willing to work with accused employers Rarely gave meaningful ultimatums Rarely investigated beyond the scope of charge

3 Obama s Employment Agencies Increased budgets More investigators and attorneys More cross-agency strategy and cooperation Less forgiveness, more penalties New laws to enforce Lilly Ledbetter, Paycheck Fairness

4 Specific Agencies Department of Labor 250 new wage and hour investigators Secretary Solis told AFL- CIO that the DOL will once again be back in the enforcement business $25 million of the budget set aside to combat employee misclassification

5 Specific Agencies EEOC Collected record $294 million through administrative enforcement and mediation 2011 budget increase of $18 million 300 new investigators Each investigator has more charges Last year, 2 nd highest number of charges resolved per investigator in last 20 years Focus on systemic discrimination

6 Specific Agencies Occupational Safety and Health Increased fines for noncompliance $87.4 million fine to petroleum company in Texas $1.6 million fine to grain elevator in Colorado $1.2 million fine to chemical company in Missouri $1.1 million fine to nutrition company in Wisconsin Taking steps to eliminate under-recording and under-reporting of workplace illness and injury

7 Specific Agencies Immigration and Customs Enforcement Audits, not raids Undocumented employees are fired, not deported Audits at nearly 3,000 companies resulting in $3 million in fines -- in last 12 months Target is the employer, not the undocumented employee

8 Specific Agencies OFCCP 10% budget increase Increased focus on affirmative action Emphasis on discrimination against veterans and individuals with disabilities Focus on compensation discrimination Systemic discrimination cases

9 Specific Agencies Internal Revenue Service Crack down on independent contractor classifications 2011 budget adds 100 new IRS agents $25 million plan to audit 6,000 randomly selected companies over the next three years

10 Cross-Agency Cooperation Task Force on Gender Equality Announced in July 2010 OFCCP, Civil Rights Division, EEOC, and Wage & Hour Division cooperating at all levels Goal is to eradicate pay disparity DOL, IRS, OFCCP targeting independent contractor misclassifications Trouble with one agency may now trigger enhanced scrutiny by other agencies Competitors can file whistleblower claims related to independent contractor misclassification

11 Top-Down Turn Around New Secretary of Labor Hilda Solis There is no excuse for employers who disregard federal labor standards. New EEOC Chairman Stuart Ishimaru Employers must step up their efforts to foster discrimination-free and inclusive workplaces, or risk enforcement and litigation by the EEOC. New NLRB Commissioners Craig Becker and Mark Pearce Both former union lawyers Reinvigorated Civil Rights Division at DOJ Backlash against Bush administration s political hirings

12 The New Employment Agencies Bush Agencies Emphasis on compliance and assistance Willing to work with employer Obama Agencies Emphasis on enforcement and penalties Less flexible/accommodating Rare meaningful ultimatums Willing to issue subpoenas Rarely investigated beyond the scope of charge Focus on systemic discrimination

13 The Brave New World More investigations Broader investigations More subpoenas More agency-initiated litigation More cause determinations Higher expectations for employers

14 Anecdotal Evidence Atlanta EEOC is particularly aggressive Hopes to find evidence of discrimination Views anything less than full cooperation as evidence of guilt Lawyer involvement may be held against company Demand handwritten affidavits

15 The Brave New World What can an employer do? What should an employer do?

16 Resolving the Charge Mediation as a first option, not a last resort Remember that appearances matter Document, document, document Reasonable cooperation Must convince two opponents Charging Party and Agency

17 The Limits of Agency Authority No Miranda warning Company must know its own rights What can an agency do? Informal requests for information Subpoena for documents Subpoena for testimony Litigation

18 The Limits of Agency Authority Investigator says agency will subpoena employees to give handwritten statements, under oath and outside the presence of counsel, if the statements are not given voluntarily. Investigators arrive unannounced on property with subpoena, demanding immediate access to files. What are the company s rights?

19 Giving the Agency What It Wants Agency wants to conduct investigation Standardized investigation techniques mean that investigator has list of tasks he or she needs to accomplish before calling investigation complete Investigators have backlog and heavy case load make their jobs easier

20 Giving the Agency What It Wants The agency wants proof. Contemporaneous documents Corroborating testimony Burden is for all intents and purposes on the employer to prove compliance with the law. Doesn t want unanswered questions

21 Giving the Agency What It Wants Employees own words Documentation Personnel files Performance reviews Handbooks and workplace postings Rigorous internal investigation followed by real corrective action Comparators

22 Giving the Agency What It Needs The agency needs to understand your business. Work flow Business and environmental pressures Differing employment roles Organizational chart Changes over time

23 Revamped Agency Investigations Any questions?