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The EEOC's New Acting Commissioner: What Employers Need to Know

On January 25th, Victoria Lipnic was appointed the new Acting Commissioner of the Equal Employment Opportunity Committee (EEOC) by President Trump. Prior to her appointment, she served on the EEOC’s board since 2010. Several of her contributions in the EEOC have given guidance on important workplace issues,  including as the use of leave as a reasonable accommodation under the ADAemployer-provided wellness programsharassment prevention, and the use of social media in the workplace and big data in employment.

Upon her appointment as Acting Commissioner, Lipnic stated that President Trump claimed her responsibilities were related to “Jobs, jobs, jobs.” She twice emphasized that the key words in the EEOC were ‘Employment Opportunity.’ Going forward in 2017, Lipnic states that while Systemic Lawsuits provide broad impact and are important, individual cases still matter. In 2016, there were 91,000 charges with 139 Merit suits being resolved. This is the largest number of charges related to Retaliation, followed by Race (35.3%) and Disability.

In the future, Lipnic says cases that will have close attention will be related to equal pay, joint employer relationships, and EEO-1 reporting for compensation. Furthermore, it is the Age Discrimination in Employment Act of 1967’s 50th anniversary, and this act may need to be reviewed.

In the beginning of February, Lipnic began seeking the public’s input regarding an Enforcement Guidance on Harassment.  Since 2013, systemic harassment has been one of the EEOC’s top enforcement priorities. This is especially true after seeing allegations rise slightly between the fiscal years of 2012 and 2015. Employers will need to increase their efforts to train managers as the new guidance becomes implemented. Chair Jenny R. Yang states that “The laws enforced by the EEOC protect individuals from harassment based on race, color, religion, sex, national origin, disability, age, or genetic information. … It is important for employers to understand the action they can take today to prevent and address harassment in their workplaces.”

These changes, along with cases like Tyson Foods, Inc. v. Bouaphakeo and Spokeo, Inc. v. Robins have opened the door for new class action lawsuits that we will see in 2017. Jerry Maatman, ESQ., the second speaker in the Seyfarth Shaw LLP’s 13th Annual Workplace Class Action Litigation Conference has some recommendations for employers. Maatman says that employers should do everything they can to work through Human Resources and other methods to resolve these matters before going to court. There has been a threefold increase in Wage and Settlement hours; settlements amounted to $52.3 million in 2016. He also advises to watch out for ERISA Certifications Decisions. Just 50% of actions were granted, meaning this is a low entry point for lawsuits. Wage and Hours lawsuits have continued to rise each year, except for in 2016 when there were 8,308 cases with recorded settlements.

In regards to government initiated litigations, the states will be filling in any possible void should the federal government reduce its efforts. In the Q&A portion of the Annual Workplace Class Action Litigation Conference, EPIC was brought up. They recently sent a letter to a House Subcommittee and Communications and Technology warning that "American consumers face unprecedented privacy and security threats" and urging them to review such technology policies related to “Connected Devices.” Employers are cautioned to watch for an outcome to be released this September.

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Posted by Robert Drusendahl in General

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