Employment Law Alert

February 29, 2016

THE EEOC HAS GONE DIGITAL

On January 1, 2016, the Equal Employment Opportunity Commission expanded its Digital Charge System (“DCS”) to all of its offices. This is what you need to know about the EEOC’s new secure online portal:

• The DCS will send an email to an employer against whom a charge has been filed and will provide a unique password for the employer to access and download the charge, review an invitation to mediate, submit a position statement, and provide and verify contact information, including designating counsel to receive and access information through the secure portal.
• The EEOC is encouraging employers to contact their local EEOC office to provide a preferred point of contact and email address for future charges. [Consider creating a special email address for this purpose so notices don’t get lost in a busy inbox.]
• The System will notify the EEOC if an employer does not access the portal within 10 days after the email is sent so that the EEOC can re-serve the notice.

The EEOC also recently announced that it will provide charging parties with a copy of the employer’s position statement, but not the attachments. This change calls for a new strategy in preparing position statements:

• Employers should refer to, but not identify, confidential information in the position statement.
• Confidential information should be provided in separately labeled attachments.
  • This includes personally identifiable information of others, race or age statistics, financial information and trade secrets.

Other EEOC News

The EEOC continues to look for cases in its identified areas of focus, including:

• Religious accommodation claims – The key to avoiding these claims is training front line managers to recognize accommodation requests and to respond appropriately. The EEOC expects employers to explore options with the employee.
• Reassignment requests under the ADA – Employers do not have to create a new position or promote an employee as an accommodation. But, the EEOC does expect employers to engage in a rigorous interactive process to determine whether a requested reassignment will address the disability or create an undue hardship.

Be sure to document accommodation discussions and any undue hardship analysis.

FLSA salary rule status check

Speculation continues regarding when the Department of Labor will issue the final rule increasing the salary level for white collar exemptions under the FLSA. The most recent word from the DOL puts the target at “spring 2016.” This updated schedule may be attributable to the Congressional Review Act (“CRA”), which gives Congress 60 legislative session days to review major regulations promulgated by federal agencies. Under the CRA, the next Congress and President will have an opportunity to review and overturn the rule if it is submitted to Congress with fewer than 60 legislative session days remaining on the legislative calendar.

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