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Streamlining the Workforce Development System

You can mark July 9 down in your books: Lawmakers from both parties in Washington found something they could agree on!

496666235In case you missed it, Congress passed on Wednesday the Workforce Investment and Opportunity Act, which revamps the nation’s workplace development program. The bill passed in the House by an overwhelming margin, 415 to 6, and is now on its way to President Obama, who is expected to sign it. (It passed in the Senate on June 25 by a 95 to 3 vote.)

­­­­­­­­­­­­­­­­­­­­­­­­­U.S. Secretary of Labor Thomas E. Perez issued the following statement regarding the passage …

Democrats and Republicans have come together on a bill that is good for workers, employers and the economy as a whole. It will help more people succeed in 21st century jobs and punch their ticket to the middle class. And it will help businesses hire the world-class, highly-skilled workforce required to compete successfully in the global economy.

“WIOA improves the workforce system, aligning it with regional economies and strengthening the network of about 2,500 American Job Centers, to deliver more comprehensive services to workers, job seekers and employers. The bill will build closer ties among key workforce partners—business leaders, workforce boards, labor unions, community colleges and non-profits, and state and local officials—as we strive for a more job-driven approach to training and skills development.”

As we reported in a June 30 story posted on HREOnline.com, the law aims to streamline the workforce development system by:

  •  Eliminating 15 existing programs.
  •  Applying a single set of outcome metrics to every federal workforce program under the Act.
  •  Creating smaller, nimbler and more strategic state and local workforce development boards.
  •  Integrating intake, case management and reporting systems while strengthening evaluations.
  •  Eliminating the “sequence of services” and allowing local areas to better meet the unique needs of individuals.

The legislation—a compromise between the SKILLS Act (which passed in the House last year) and the Workforce Investment Act of 2013—was endorsed by the Chamber of Commerce, which cited as positives the bill’s focus on “the continued leadership role of business, the clear language that promotes alignment of investments in education and training, and the increasing focus on outcomes.”

Of course, now the hard part begins. As James J. Parks, an attorney with Jaffe Raitt Heuer & Weiss, noted in our June 30 piece, “The problem you always have when you change anything in the government is the bureaucracy. Bureaucracy is a self-sustaining animal.”

But that said, there’s no denying that any effort to streamline the nation’s workforce programs and remove some of the much-dreaded inherent red tape should be viewed by the HR community as a good thing.

Unemployment: Good News and Bad News

unemploymentThe jobs report for June, released today by the Labor Dept., has some welcome good news: Employers added 288,000 jobs last month, which is well above the rate of hiring recorded during the first five months of this year. The unemployment rate has ticked down to 6.1 percent, according to the DOL, which is the lowest it’s been since 2008, when the financial crisis hit.

This good news does not, of course, mean that we’ve finally left the economic doldrums behind. Two thirds of the jobs created in June were part-time, the DOL reports, and no doubt many of the employees who took those jobs would rather be employed full-time. As for the unemployment rate, that doesn’t include people who’ve simply given up looking for work. If these people were included in the official unemployment rate, it would actually be 9.6 percent instead of 6.1 percent, according to the Economic Policy Institute.

More distressing still (apologies for being such a gloom-meister right before the national holiday) is a new study from the Boston Consulting Group, which projects that the U.S. will be one of the few economies that is projected to struggle with high unemployment through 2030. It is expected to have a “worker surplus” equal to between 10 percent and 13 percent of its labor force in 2020 (between 17 million and 22 million people) and of 4 percent to 11 percent in 2030. The U.S. must “find ways to better utilize its workforce or it will continue to face relatively high unemployment,” according to the BCG report. “Improvements in training and education, as well as incentives for individuals and businesses to produce workers with the necessary skills and education, are needed to counteract this trend.”

This is one area where our do-nothing Congress (which currently has a sky-high approval rating of 16 percent) might actually do something: As Kecia Bal reported this Monday on HREOnline, the Workforce Innovation and Opportunity Act would reauthorize and amend the Workforce Investment Act with the intention of making it easier for states and local communities to match unemployed workers with the skills and training needed by today’s companies. As we’ve learned the hard way, there’s no magic wand that will solve our current unemployment problem, but maybe if we make better use of our existing resources so that jobs requiring specialized skills no longer go begging even as so many Americans have gotten too discouraged to look for work, we can at least make some serious progress.

Employers Missing ADA Coverage in FMLA Cases

Employers are missing half of Family and Medical Leave Act cases involving employees’ serious illnesses that should also have been reviewed for Americans with Disabilities Act eligibility.

462011275 - disability and gavelThis according to Chicago-based ComPsych, in this report issued last week, June 24 to be exact, titled The Risk of Non-Compliance With ADA. The report breaks down by certain industries the percentage of FMLA cases that need ADA review, yet are being missed.

They include: retail at 13.2 percent, health services at 10.9 percent, manufacturing at 6.8 percent, public administration at 6.7 percent, trades at 6.5 percent and professional services at 5.9 percent.

These numbers, says Matt Morris, a vice president and licensed attorney at ComPsych, are “significant.”

“A common mistake employers make,” he says, “is to deem an FMLA leave request as ineligible, then not review it for ADA purposes.”

The potential consequences of such oversight “can be severe,” says Morris, “since one ADA misstep can lead to an investigation of the employer’s entire leave practices.” Hence the rash of recent ADA class-action lawsuits by the Equal Employment Opportunity Commission, he adds.

Indeed, the EEOC is coming off a record 2013 in terms of ADA penalties paid out by employers, a whopping $109.2 mill. Here are just three of the most sizable payments: $6.2 million by Sears Holding Co. involving 235 plaintiffs, $3.2 million by SuperValu involving 110 plaintiffs and $20 million by Verizon.

I asked Morris for a good example of an ineligible FMLA leave that would be covered under the ADA. Here’s what he said:

An employee has been at the company for six months and breaks his leg. He needs time off for rehab and to recoup, but is denied FMLA leave because he hasn’t been employed long enough. In this case, the employer should still review for ADA accommodation.”

Basically any ineligible FMLA leave for the employee’s own health condition (obviously not for baby bonding, etc.) has the potential to be an ADA leave, he tells me. “Although a ‘serious health condition’ under the FMLA and a ‘disability’ under the ADA are both two different standards, they are each very likely applicable to a health condition that forces someone to be out of work,” says Morris. And while the FMLA requires an employee to have been employed for 12 months and worked 1,250 hours in the last 12 months in order to be eligible, the ADA has no such standard. So, an ineligible FMLA employee still may have an ADA disability.

Perhaps the most common ADA misstep is waiting for an employee to “raise her hand” to request an ADA accommodation specifically or by name, Morris says. Courts have been clear that the “notice requirements under the ADA are nearly identical to those under the FMLA,” he says, but employers often don’t recognize that requests for FMLA leave are “hidden” requests for an accommodation — i.e., leave — under the ADA.

Interestingly, he tells me, employers all share a common misstep, which is that the company created and tried to enforce a standard policy — strange, in part, because generally this is exactly what HR tries to do: create uniformity and equality.

“But … they don’t consider whether the leave should be continued on a case-by-case basis,” says Morris. Maybe the more important thing is to note how easily one mistake can turn into something broader. What can happen — and, in fact, has been the way most of these cases start, he says — is:

1) The employee has an adverse action taken against her (usually, she’s fired).

2) She files a charge of discrimination with the EEOC (such charges are free to file, don’t require a lawyer, and often list several bases on which the employee believes she was discriminated against – for instance, race, sex, religion and then disability).

3) If the EEOC determines that, in that one case, the disability policy had a uniform cutoff — what it calls an ‘inflexible’ policy — it then uses its subpoena power to request the names of all employees who were subject to that policy (fired because they crossed that inflexible line).

4) The EEOC then sues on behalf of all, or most, employees subject to the policy and suddenly there are hundreds of plaintiffs.”

Thus far, this has only arisen because the policy was clear (“if you take more than X amount of time on leave, your job will not be protected”), but even if employers are detecting the right employees [for FMLA leave], they still have to have the expertise to apply such ADA standards as “reasonable accommodation,” “undue hardship” and “significant limitations (of a major life function)” appropriately.

So what should you be keeping top-of-mind? Here’s Morris’ caution:

Employers have been pining for three to four years for additional guidance from the EEOC on how to conduct the interactive process (how to determine a ‘reasonable’ amount of time, etc.). Chances are, given indications from the EEOC itself, the guidance will not come soon. Until then, employers will still be held responsible for appropriately applying these vague standards to a host of factors (e.g., What does the employee do? Could others help? Are there other jobs she could do? How long will the disability last? Are there things [you] can do to help reduce the time?)”

Hope this is helpful.

 

 

Still Time to Chime in on NLRB’s Email Decision

99274052--gavel and hourglassYou still have time to offer input into a National Labor Relations Board decision that bars employees from using their employer’s email for union-organizing purposes, according to this notice from the Society for Human Resource Management.

The NLRB invited briefs back on April 30 pertaining to its interest in reconsidering its decision in the Register Guard case. Even if you missed it, you have until June 16 to submit your position in writing.

For background, here is an earlier synopsis of the initial ruling from Littler and here, from the National Legal and Policy Center, via the Before It’s News website, is an even-more-detailed one, with history and background on other cases that impact this one. It notes that, in 2007 …

… by a 3-2 margin along party lines [with the three Republicans forming the majority], the NLRB concluded that a Eugene-Ore.-based newspaper, The Register Guard, owned by Guard Publishing Co., was within its rights in stipulating that its e-mail and other employee-communications systems ‘are not to be used to proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations.’ Management, concluded the board, had the authority to apply that rule to an affiliate of the Communications Workers of America to which a number of newsroom employees belonged. The majority opinion held [that]: ‘[E]mployees have no statutory right to use the[ir] employer’s e-mail system for Section 7 purposes.” The ruling, however, wasn’t a complete victory for the employer. It held that Guard Publishing’s disciplinary action against an employee-CWA representative was unlawful to the extent that it punished that person’s purely informative [as opposed to advocacy] use of company e-mail. The board remanded the case to a District of Columbia circuit court, which upheld the ruling [Guard Publishing v. NLRB, 571 F.3d 53 -- D.C. Cir. 2009].”

Not surprisingly, there are politics involved, according to the NLPC:

Its partial victory notwithstanding, organized labor has been smarting over Register Guard these last several years. All the more frustrating, from their standpoint, is the fact that the ruling was handed down on the last day in office of then-NLRB Chairman Robert Battista, a Republican. With a 3-2 Democratic majority since last summer — after more than a half-decade of operating short-handed – plus the guidance of pro-union current General Counsel Richard Griffin, a reversal is now within their grasp.”

If the NLRB reverses its decision, “which is likely given its current 3-2 pro-union majority,” the NLPC says, “it would be handing unions a potent organizing tool, and more broadly, restricting employer property rights.”

If you’re really in an amicus-brief-submitting frame of mind, here is another invitation to submit briefs to the NLRB. In this case, the board is inviting briefs “to afford the parties and interested amici the opportunity to address [its] joint-employer standard, as raised in Browning-Ferris Industries (Case 32-RC-109684).

Among the issues raised by the NLRB in this one is whether the parties and amici believe the NLRB should adhere to its existing joint-employer standard or adopt a new standard. Those briefs are due on or before June 26.

 

More Restrictions on Criminal-Background Checks

California appears to be the latest state to join the criminal-background-restriction bandwagon. A new law enacted last month amends the California Labor Code to prohibit public and private employers from asking job applicants about criminal records that have been expunged, sealed or dismissed.

gavel and handcuffs -- 162424875“The good news is that [the law] doesn’t break entirely new ground, but instead modifies existing law,” says Brian Inamine, a LeClairRyan labor and employment attorney and shareholder in the firm’s Los Angeles office, in this release about it. “The bad news is that it represents one more hurdle that businesses have to contend with.”

Indeed, as my Nov. 13 news analysis on HREOnline points out, the hurdles are racking up. To date, 43 cities, counties and municipalities, and 10 states have passed “ban the box” legislation for public-only or public and private employers, making questions about criminal convictions on job applications illegal.

What’s more, as that story points out, there’s still a lot of confusion about what’s required of employers under the U.S. Equal Employment Opportunity Commission’s guidelines on criminal-background checks.

Actually, as it says, nothing’s really required. There’s no federal law being dictated in the guidelines, but failing to follow them could lead employers to discrimination charges under Title VII of the 1964 Civil Rights Act, which the guidelines are based on. The EEOC maintains criminal-history checks disproportionately impact minority candidates. For a rundown of some of the events and issues leading up to the EEOC’s guidelines, take a trip here through some of our earlier blog posts.

Another recent news analysis of mine looks at an additional potential punishment, under the Fair Credit Reporting Act, that Disney recently found itself ensnared in. In a class-action lawsuit, Culberson vs. The Walt Disney Company, Robert L. Culberson claims Disney illegally barred him from employment by failing to provide him with the proper adverse-action notice — required by the FCRA when an adverse-employment decision is based on any portion of a background check.

In that case, Culberson’s background check showed a criminal conviction on a battery charge from 1998 — when he was 19 years old — that had been expunged from his record in 2010. He claims he was not given the opportunity to correct the information before the company decided not to hire him, nor did Disney re-evaluate his application after the background-screening company, Sterling Infosystems Inc., eventually removed the conviction from his record and issued a new report.

As the new California law reminds us, and as the sources in all these linked stories and posts underscore, make sure you know what criminal-background laws govern the jurisdiction(s) you’re in and — equally important — what other laws might come in to play should you fail to follow proper procedures.

 

 

Broadening Definitions Under the ADA

In case you missed it, employers were recently given further insight as to what qualifies these days as a disability under the ADA Amendments Act of 2008.

On Jan. 23, the Fourth Circuit Court of Appeals ruled that, as long as a temporary impairment is sufficiently severe, it would qualify as a disability, reversing a district court decision regarding a wrongful-discharge claim.

200249331-001The case involved Carl Summers, who, as a senior analyst for Altarum Institute, fell and injured himself while exiting a commuter train. Summers, who underwent leg surgery and was told by doctors he might not be able to walk normally for at least seven months, was provided with short-term-disability benefits. He suggested that he start working part-time from home and gradually return to full-time work, but representatives from Altarum failed to follow up on Summer’s return-to-work plan or suggest any alternative reasonable accommodation. The firm eventually terminated him, installing another analyst in his position.

In Sept. 2012, Summers filed a complaint under the ADA, alleging he was wrongfully terminated because of his disability.

In its ruling, the Fourth Circuit said “an impairment is not categorically excluded from being a disability simply because it is temporary” and that Summer’s alleged impairment “falls under the amended Act’s expanded definition of disability.”

I asked Paul Mollica, of council with Outten & Golden LLP in Chicago, for his thoughts on what the decision—which many believe could be the first ruling of its kind under the ADAAA—means for employers.

Going forward, he told me, employers are going to need to accept that the “lessons learned up to this point aren’t true anymore” and “retool” accordingly.

A Workplace-Centric SOTU

President ObamaFrom the employer’s and HR leader’s perspectives, there were plenty of reasons to tune in to last night’s State of the Union Address—from minimum-wage issues and gender-pay equality to the announcement of a new savings bond designed to help working Americans start their own retirement savings.

For example, President Barack Obama announced an executive order that will require all federal contractors to raise their minimum wage to $10.10 per hour. He urged private employers to take similar action, pointing to organizations such as Costco as examples of large companies that had taken the initiative to raise pay rates to more than $10 an hour on their own.

President Obama also advocated the enactment of legislation that would increase the federal minimum wage to $10.10 per hour. “I am going to call this the 1010 Act,” he said, and urged Congress to pass the bill in 2014. “Let’s give America a raise,” added the president, to rousing applause.

While “the scope of the [aforementioned] executive order is unclear,” we should expect to see movement on the minimum-wage front in the days and months to come, even if it occurs first at the state level, says Connie Bertram, a Washington-based partner in the labor and employment department at Proskauer.

“I do think we’re going to see increases [in minimum wage] at the state level,” says Bertram, who is also head of the firm’s D.C. labor employment practice and co-head of Proskauer’s whistleblowing and retaliation, and government regulatory compliance and relations groups. “I doubt we’ll see across-the-board federal increases in the near future. But very often, when the federal government can’t take action, the states step in.”

Increasing pay rates and job opportunities was a recurring theme on Tuesday night, as President Obama announced a White House initiative geared at aiding the unemployed, and later this week will meet with a group of CEOs and business leaders in an effort to open up more opportunities for the long-term unemployed. And, as HRE Senior Editor Andrew R. McIlvaine writes today, the president also shared plans for improving the nation’s economy by connecting out-of-work individuals with skills-starved employers and strengthening the manufacturing sector.

Obama called on Congress to take action on other fronts as well, reiterating his call for passage of the Paycheck Fairness Act, which would strengthen the Equal Pay Act.

“As President Obama said, it’s time to leave ‘Mad Men’ attitudes and policies behind and adopt programs that allow people to hold jobs and care for their families,” said Debra L. Ness, president of the National Partnership for Women & Families, in a statement.

“We need Congress to advance the Paycheck Fairness Act, to finally reduce the punitive wage gap,” said Ness, adding that “we need a higher minimum wage, unemployment benefits we can count on and a real chance at retirement security.”

Indeed, retirement saving was on President Obama’s radar as well, as he offered details of a new retirement savings account—”myRA”—that he hopes will aid American workers in saving adequately for retirement.

“It’s a new savings bond that encourages folks to build a nest egg,” said President Obama. “MyRA guarantees a decent return with no risk of losing what you put in.”

The accounts, he explained, would be geared toward workers whose employers don’t offer traditional retirement accounts such as 401(k)s, and would essentially function like a Roth IRA, with government backing akin to that of a savings bond. As such, the balance of a myRA account could not go down, he said, with the investments having principal protection.

An initial pilot program will include companies that agree to enroll by the end of 2014, and workers making less than $191,000 annually will be able to invest, added President Obama.

The essential concept behind myRA accounts “has been around for a while,” says Lynn Dudley, senior vice president of retirement and international benefits policy with the Washington-based American Benefits Council, who likens the new myRA bond to R-bonds.

While more details on myRAs have yet to emerge, the accounts may prove to be an attractive option for many employers, especially those with large numbers of part-time or temporary workers, or employees who are in and out of the workforce, says Dudley.

“If a large employer is already offering a retirement plan, [it's] not going to eliminate that plan and send everyone to an [myRA] bond. [It's] going to keep [its] plan,” she says. “This is really targeted to people who aren’t already participating, or aren’t eligible to participate. It’s a select population, but it’s a growing one.

“And [such an account] is relatively easy to open up and offer through an employer,” adds Dudley. “It’s easy for HR to administer, and it’s portable for workers. The one drawback is that it’s an investment with a guaranteed rate of return, so it’s a conservative investment. But it’s a good idea.”

Whistleblower Protections Keep Expanding

whistleTwo weeks from today, a bill will take effect that expands protection for whistleblowing employees in California. While only applicable to companies operating in the Golden State, one new wrinkle in the legislation should perk up the ears of employers everywhere.

On Jan. 1, 2014, California’s Senate Bill 496 will increase whistleblower protections for employees who have made internal reports alleging illegal behavior internally to a person with authority over the employee or to another employee with the authority to investigate, discover or correct the reported violation.

Interestingly, the law also subjects employers to liability for “anticipatory retaliation,” meaning companies can be held accountable for retaliating against an employee based on the mere belief that he or she might be a whistleblower.

Kenneth Sulzer, co-head of the California labor and employment law group with international law firm Proskauer, offers up an example.

“Say you have an employee who prepares an expense report for their manager, and that employee suspects the expenses were fudged a bit. That employee asks some questions, and is later fired for something else,” explains Sulzer. “But that employee has emails including those questions, and believes the supervisor anticipated he or she was going to make a complaint. Those emails record that the employee asked the questions, and, legally speaking, the employee has a factual leg to stand on.”

Again, such a claim could only be made in California at this point, and whether other states pursue similar legislation remains to be seen. But the enactment of the California bill signals the latest state-level move to provide a wider safety net for whistleblowers, and employers throughout the U.S. should take note, says Sulzer.

“We expect to see a substantial expansion in whistleblower protections in states around the country,” says Sulzer. “Driving this trend are several high-profile cases that have stoked the interest of the plaintiff’s bar, feeding on the public’s distrust of institutions, disparity of income and federal legislation such as the False Claims Act, Sarbanes-Oxley and Dodd-Frank, and the SEC whistleblower bounties.”

Provisions that leave employers potentially liable for “anticipatory retaliation,” however, could be “more problematic for employers than many other whistleblower protection laws,” says Sulzer, “as it provides a cause of action where an employee does not actually engage in whistleblowing, but is merely expected to do so, and provides a cause of action even where the employee’s job is to point out flaws and review quality of work.”

What’s Missing from the Retirement Debate

CapitolThe paternalistic employers of days past are long gone — and will probably never return. That seemed to be the general consensus at the Employee Benefits Research Institute‘s biannual policy conference, held yesterday at the Shriners Auditorium Ballroom on a blustery cold day in Washington.

The big question, of course, is what will replace them — and do they even need to be replaced? EBRI, which is celebrating its 35th anniversary, convened an eclectic group of experts to debate what the future holds for employee benefits in the wake of the Affordable Care Act, the prevalence of defined-contribution retirement plans and the apparent unwillingness — or inability — of baby boomers to retire from the workforce. (The latest research from EBRI suggests DC plan participants are likely to, in some cases, end up better off than traditional defined-benefit plan participants.)

“When the [Employee Retirement Income Security Act] was passed in 1974, the question was whether it would be good or bad for employee benefits,” said Howard Fluhr, chairman of New York-based Segal Group, during a panel on the changing role of employers in employee benefits that was moderated by Business Insurance editor-at-large Jerry Geisel. “Well, for a while it was good, then it became bad, and then it became stifling. Now we’ve shifted to self-reliance as the end-all, be-all because of pressure from public policies. What it really means is, we’ve essentially shifted responsibility for managing volatility onto the backs of employees.”

Federal legislation and tax policy has been beset by the law of unintended consequences, said Fluhr, with the result that laws and regulations which were originally intended to strengthen employee benefits have, over the years, become so complex that employers were practically forced to dispense with the more-paternalistic benefits of years past. This has been accompanied by an embrace of “short-term thinking” among businesses and lawmakers, he said.

“We as a society have lost some control because we’ve lost sight of public policy, and employers have no control over that,” said Fluhr.

Larry Zimpleman, chairman and CEO of Des Moines, Iowa-based Principal Financial Group, urged attendees to not view the past with rose-tinted glasses.

“The good old days were not necessarily as good as we remember them,” he said. “We’ve moved the employee-benefits platform to be more voluntary. Why? Because employees like choice, employers like having control over costs, and defined-contribution plans and voluntary benefits lets them have that.”

He concurred with Fluhr, however, on the short-sightedness that is prevalent in policymaking these days.

“There haven’t been strong voices on both sides of the aisle in Congress on employee benefits for a long time,” said Zimpleman. “Remember when Sen. Ben Cardin, a Democrat, and Sen. Bob Portman, a Republican, worked together on the Pension Protection Act of 2006? Intitiatives like that have been drowned out by ideology-driven debates. And now there’s this mind-set that retirement benefits cost the U.S. government money — that’s destructive thinking.”

Indeed, for every $1 the government forgoes for tax-advantaged retirement plans, he said, it reaps $4 in tax revenue later on as retirees are able to continue spending. “The government more than gets its revenue back; it just has to wait a little longer for it,” said Zimpleman.

“The idea that, one way or another, we have to take care of one another has been lost in Congress,” said Fluhr.

When asked which is better — traditional defined-benefit plans or DC plans — Zimpleman took issue with the question. “The ideal is, both,” he said. “Hybrid plans … are a healthy approach.”

There’s more to come from this EBRI conference, so tune in this Monday …

 

Will the EEOC Be Updating National-Origin Guidance?

There were some good signs in a public meeting in Washington yesterday (Nov. 13) that the U.S. Equal Employment Opportunity Commission may be willing to consider updating its guidance on national-origin discrimination issued after the 9/11 attacks.

177818736-- public meetingSuch is the gist of a blog post on Seyfarth Shaw’s Workplace Class Action Blog by Paul Kehoe, senior counsel in the employment law firm’s Washington office, who attended the meeting — aimed at hearing testimony about the challenges in today’s workplace related to national-origin discrimination, including English-only policies.

In a separate note about the meeting, Kehoe says the testimony “indicated some level of support for updated guidance from the EEOC.” He adds that, while it’s unclear whether the agency will actually revise the guidance, “an initial step to updating [a] guidance is to hold a public hearing.”

In his blog post, Kehoe describes some of testimony on both employer and employee sides:

Employer representatives suggested clarifying certain aspects of the current EEOC guidance and providing best practices, while fully considering employers’ legitimate interests and Title VII’s statutory intent. Advocates for workers suggested providing additional guidance narrowing the permissible instances where English-only policies would be appropriate and addressing ‘listener’or ‘implicit’ bias as it relates to customer preference and other issues.”

He also explains what’s at stake:

Currently, the EEOC’s guidance recognizes that claims may be brought under both disparate-treatment and disparate-impact theories of discrimination. Of course, in a disparate-treatment claim, the plaintiff would bear the ultimate burden of establishing pretext, while in a disparate-impact claim, the ultimate burden would fall on the employer to establish that the policy at issue was job-related and consistent with business necessity. Updated guidance would likely provide more context for the regulated community, but may ultimately make it more difficult for employers to comply with the EEOC’s view of Title VII.”

And in signing off, he provides some worthy employer caution:

Will the EEOC choose to update guidance in this area, which by Commission standards was recently completed in 2002, when there are other more pressing guidance documents to update? Only time will tell, but employers should review their language-related policies to determine whether they are in compliance with Title VII or if the policy needs additional consideration.”