The EEOC and OSHA Are Expanding Their Focus To the Whole Company … All of It.

An EEOC “systemic” investigation can be as miserable as a class action lawsuit for employers.  As we have discussed before, the EEOC has encouraged its management and investigators to scrutinize single claimant EEOC charges for possible expansion to a burdensome corporate wide examination of hiring, promotion or other practices.  In FY 2013, the EEOC began using it’s “Systematic Watch list,” a software application designed to identify charges and litigation involving the same issues against the same employer throughout the country.  Last year, OSHA rolled out a similar internal IT system to look for citation patterns in companies with numerous locations.  Likewise, OSHA is slowly using its Severe Violators Enforcement Program (SVEP) to address an entire company because of one site’s transgressions.

Despite daily diatribes against the NSA’s supposed omniscience, the U.S. DOL, EEOC, NLRB and other agencies have not traditionally been able to “connect-the-dots” and view companies as a single  entity.  Trust me, until recently, no matter what your corporate history, OSHA and the EEOC generally treated each location as . . . well . . . an individual location.  Labor lawyers had been warning employers to not evaluate their exposure solely based on past experiences because the process is “gradually” changing.  One recalls the old saying about slowly turning up the heat of a pan in which an unfortunate frog has been placed.  Supposedly the frog is lulled to sleep by the gradual increase in heat instead of screaming “what the heck” and leaping out.  Ok.  I’m getting melodramatic, but you really do need to be vigilant and  continuously critically examine your employee processes.

Why Pass Regulations When You Can Expand The Law Through Suits and Enforcement Positions?

No Administration since Reagan has had much success in “rulemaking,” let alone passing new laws.  And with our polarized government, I also wouldn’t expect too many new laws; especially with midterm elections approaching.

I understand the frustration of the Democrats and their appointed heads of OSHA, the EEOC and the  NLRB.  Nevertheless, the “ends don’t justify the means.”  A pattern has emerged of this Administration by passing rulemaking and legislation to change 40 years of legal precedent.  Thus, the EEOC can be expected to pursue its goals of change with increased vigor.  The EEOC’s stated goals include:

  • eliminating systemic barriers in recruitment and hiring;
  • protecting immigrant, migrant, and other vulnerable workers;
  • emerging issues such as under the ADA, and to a lesser extent lesbian, gay, bisexual, and transsexual individuals (LGTB) under Title VII;
  • pregnancy;
  • equal pay;
  • preserving and expanding access of claimants to the legal system; and
  • attacking an ever-growing variety of harassment claims through enforcement, outreach, promotion and solicitation.

Your risk of a systemic claim are still not that high, depending on your size or industry, but that’s of little consolation if you are the lucky company to see that failure to hire EEOC charge expand to a nationwide examination.  And don’t think that the EEOC’s efforts are limited to California or the Northeast.  North Carolina, for example, was one of the EEOC’s most active areas for systemic investigations last year.  Just ask our Charlotte and Columbia offices.

And while we’re at it, don’t forget the always present and ever-growing wage-hour class actions and corporate wide investigations, as discussed in this week’s article by my friend and partner, Hagood Tighe:

Fast-Food Chain Employers: Take Steps Now to Avoid Being the Next FLSA Headline

On almost a daily basis, we read articles about class action lawsuits and settlements against fast-food chains.  Almost all chains have had them.  Fisher & Phillips has defended many of these lawsuits for different chains in all parts of the country.  Most class claims are based on one or more of the following types of allegations under the FLSA and/or state wage-related laws:

•    Managers illegally adjusted timesheets to avoid overtime,

•    Improper use of tip credit,

•    Mileage reimbursement or other business expense reimbursement insufficient,

•    Improper calculations of overtime pay,

•    Employer-retained delivery charges belong to employees,

•    Improper uniform deductions, and

•     Retaliation against those who complain.

A number of large plaintiff-oriented law firms around the country are bringing these class action cases and looking for more.  Adding further fuel to the fire, the New York Attorney General is investigating potential “wage theft” in the fast-food industry.  Many fast-food restaurants have received subpoenas from the Attorney General as part of this investigation. Click here to read more about the investigation.

This action should serve as a reminder to employers in all states that sometimes even compliance with the FLSA is not enough.  Employers must also take into account the restrictions that states and other jurisdictions might impose under their own laws, particularly with respect to deductions and the payment of wages.

With the recent announcements of million-dollar-plus settlements, fast-food employers would be wise to immediately audit their pay practices to ensure they are not the next big headline.

About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
This entry was posted in class actions/systemic investigation, discipline and discharge, discrimination, EEOC, employer policies, government inspections, OSHA. Bookmark the permalink.

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