What's New?

On November 19, 2009, The U.S. Department of Defense (DOD) published final regulations giving whistleblower protections to employees of federal contractors. As of that date, DOD contractor employees are protected if they disclose to Government officials information regarding waste or mismanagement, danger to public health or safety, or violation of law related to a DOD contract.

DOD Contractor Whistleblower Rule
(PDF File, 40KB)

On June 29, 2009, the U.S. Supreme Court issued its ruling on the Ricci v. DeStefano (City of New Haven). It said, among other things that employment testing results must be used if they are shown to be valid according to the Uniform Guidelines on Employee Selection Procedures.

Ricci v. DeStefano (City of New Haven)
(PDF File, 59KB)

On April 30, 2009, the U.S. Department of Homeland Security's Customs and Immigration Service (USCIS) issued notice that it has turned its focus on immigration enforcement toward employers who are knowingly violating the law.

Following an Immigrations and Customs Enforcement (ICE) investigation, on May 6, 2009, the owner of a Chinese restaurant in DePere, Wisconsin was sentenced in federal court to 15 months in prison for harboring illegal aliens to work at his restaurant. He was also ordered to forfeit the residence he used to harbor the illegal workers. (www.ice.gov/pi/nr/0905/090506greenbay.htm)

For a copy of the Fact Sheet go to ICE Fact Sheet on Worksite Enforcement Strategy.

On December 18, 2008, the U.S. Department of Labor released the updated poster content for the Family and Medical Leave Act (FMLA) changes implemented in 2007 legislation. It is mandatory to post as of January 16, 2009, along with all other federal poster and notice requirements. You can order an updated All-On-One poster for your state by going to Compliance Posters. Our All-On-One posters contain both federal and state poster requirements for your state and are laminated with plastic to protect the documents and make the display look more professional.

If you simply wish to print a copy of the new poster and put it on the wall next to the other required materials, you can download a copy by clicking here. You will receive a PDF file 42.25 KB in size.

On December 24, 2007, a new regulation became effective that touches all federal contractors. The new rule applies to all federal agency contracts other than what the government considers "commercial contracts." It requires all contractors to have and maintain a Code of Business Ethics and Conduct.

Contractors that have contracts valued at $5,000,000 or more which are expected to last 120 days or longer are required to prepare their Code of Business Ethics and Conduct in writing and to meet other requirements.

If the government agency has its own Fraud Hotline poster, the contractor must post that document at each work location. If the agency doesn't have its own specific Fraud Hotline poster, the contractor must post the generic poster published by the Office of the Inspector General (OIG).

Click here for a copy of the regulation. (PDF file, 85.8 KB)

On October 9, 2007, California Governor Arnold Schwarzenneger signed AB 392. Because it was designated an emergency measure, its requirements become effective immediately.

If you are an employer with 25 or more workers, you must allow an employee who is a spouse of a member of the Armed Forces, National Guard, or Reserves to take up to 10 days of unpaid leave during a "qualified leave period" when the employee's spouse is home on leave.

The state legislature approved the new requirements to support "the families of those troops currently serving in military conflicts in Iraq and Afghanistan."

For a copy of the new AB 392 law in PDF format Click Here (71.60 KB, 2 pages, PDF format)

If you are a federal contractor, selling goods and/or services to the U.S. Government, and you are required to have an affirmative action program, life just got a bit more complicated...and expensive.

Compensation analysis is now a requirement for all federal affirmative action contractors. And, if you have 500 or more people on your payroll, you can be judged in compliance by the Department of Labor if you do a regression analysis on your compensation data. It is called a voluntary program, but employers with 500 or more workers must perform a detailed regression analysis every year to be sure there is no illegal discrimination in their employee compensation programs and to "comport" with Department of Labor requirements for statistical significance. If your headcount falls under 500, regression analysis is recommended, but not an annual requirement for "comportment."

If you have never heard of regression analysis, don't feel badly. Most folks haven't. It is a very reliable statistical analysis tool used mostly, up to now, by people with green eye shades. From now on, you may be the one wearing the green eye shade. It is very expensive because it requires large data bases filled with information that is not retained or used for any other purpose. Up to this point, regression analysis has been the nearly exclusive tool of specialists testifying in discrimination court cases.

Sure, you can thumb your nose at the new requirements, and the Office of Federal Contract Compliance Programs (OFCCP) will be able to conduct its own regression analysis on your program. They will even be responsible for gathering the data that they use in the analysis. You don't have to provide it to them. So, if avoiding the expense of data collection, verification and assembly was your main reason for not performing the regression analysis, you can side step the cost quite easily.

If a contractor performs all of the "recommended" analysis actions, OFCCP promises to accept the results and not probe further. That is, of course, assuming the results do not point to any problems of discrimination.

OFCCP has traditionally had a difficult time with data analysis, sometimes asking more of its Compliance Officers than they have been prepared or equipped to deliver. Now, with Ph.D. level statisticians on staff, we can only presume that the analysis will be conducted by these professionals rather than field-based Compliance Officers.

The problem remains one of data accuracy. Data used in a compensation regression analysis goes well beyond the information normally collected and maintained in a Human Resource Information System. Beyond name, rank and serial number, regression probes other factors used in decision making, such as

• Which university was attended?
• What employer provided specific work experience?
• Which training programs have been attended and with what result?
• How long was a certain work assignment?
• How many special assignments have been accomplished?
• How much work experience exists in a certain specialty?
• What has been the individual's performance rating for the past several years?
• What was the individual's starting compensation level?
• And, an infinite number of other possible factors ...

Any factor used in determining compensation treatment is fair game. Once you have all that information on one person, you only have to go get it for every other person in the same Similarly Situated Employee Group (SSEG).

The new regulations are effective now ... June 16, 2006. Get your personal copy of both regulatory statements.

Compensation Analysis Regulations (PDF File, 189KB)
Voluntary Compensation Analysis Provisions (PDF File, 131KB)

Employers in the 9th U.S. Circuit Court of Appeals received a jolt on September 2, 2005, when the appellate body published its ruling in the case of EEOC v. National Education Association.

Circuit Judge Alfred T. Goodwin wrote in the Court's opinion, "This appeal presents the question whether harassing conduct directed at female employees may violate Title VII in the absence of direct evidence that the harassing conduct or the intent that produced it was because of sex. We hold that offensive conduct that is not facially sex-specific nonetheless may violate Title VII if there is sufficient circumstantial evidence of qualitative and quantitative differences in the harassment suffered by female and male employees."

There was no demand for sexual favors. There were no sex-related jokes. There were no photos or drawings of a sexual nature in the workplace. But, the impact of this supervisor's abusive behavior was terrifying to the female employees while the male employees pretty much ignored it. The Court said there is a difference in impact on the women, therefore the impact of the abusive behavior is sex related. And, that is illegal discrimination based on sex.

Judge Goodwin concludes, "There was sufficient evidence for a rational trier of fact to conclude that the alleged harassment by [the boss] was both because of sex and sufficiently severe to support a hostile work environment claim under Title VII."

Click Here for a PDF copy of the 13-page opinion.

With the revision and finalization of regulations in California, AB 1825 is fully implemented. Some interesting changes were made in the requirements for California employers.

As you know AB 1825 requires employers with 50 or more workers in the state to provide training to every supervisor on sexual harassment prevention. That training must be updated every two years and there is a minimum 2-hours required on the length of training.

What you may not know is that the new requirements specify the training must be "presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination and retaliation." (CA Government Code, Section 12950.1)

Further, the new requirements specify, "The training and education required by this section shall include information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment in employment." If all this material is not included in your training program, you are not in compliance.

When AB 1825 was first being implemented, it seemed that everyone was holding themselves out as an expert in sexual harassment prevention and offering training. It was a lucrative market. Training is mandatory. There is no certification for trainers, contrary to what some people would have you believe. It is up to the employer to determine the qualifications of the trainer.

Here's the test you should apply...

Ask yourself the following question. "Would you be comfortable with your trainer (or vendor/contractor) being cross-examined about his/her credentials in a lawsuit?" If the "expert" looks silly on the witness stand, you will look silly and your defense can be seriously injured.

If you want help with training your supervisors on sexual harassment prevention, call us. We offer extensive background in hundreds of discrimination complaint investigations, expert witness work on employment discrimination lawsuits, and teaching experience at the University of California at Berkeley extension program. That is in addition to the many seminars we have conducted for employers on the subject of sexual harassment prevention. We can easily defend our qualifications when asked.

"Supervisor" includes not only those located in California, but those located outside California who supervise employees at California work sites. The threshold of 50 employees can be any combination of payroll employees and independent contractors. How do you demonstrate that each supervisor participated in the training? Consider having a sign-in log sheet where people can indicate by their signature that they attended.

You can get a copy of the final Government Code section in PDF format by clicking New Harassment Training Regulations for California Employers. (10KB)