In light of recent changes by the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Labor (DOL), employers should conduct a compliance check to ensure they are abiding by federal law posting requirements.
On June 2, the EEOC announced that it is more than doubling the fines for employers that violate notice posting provisions of Title VII and other statutes from $210 to $525 per violation. The EEOC said it was adjusting the penalty for inflation, in accordance with the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. Employers covered by Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act or the Genetic Information Nondiscrimination Act must post notices describing the key provisions of these acts in “prominent and accessible” spots in the workplace, according to the EEOC. The requirement applies to private employers, state and local governments, and educational institutions employing 15 or more individuals, as well as to federal contractors and subcontractors. The “EEO is the Law” poster, prepared by the EEOC, summarizes these laws and is available for free here in English, Arabic, Chinese and Spanish
In May, the DOL issued a new user-friendly Family and Medical Leave Act (FMLA) poster. Employers who are covered by the FMLA are required to display a DOL-prepared poster advising employees and applicants of the major provisions of the Act. Employers are still permitted to display the prior version of the poster (dated February 2013) or may elect to use the new poster (dated April 2016). A copy of the new poster is available for free from the DOL here.
On January 20, 2014, the City of Philadelphia amended its Fair Practices Ordinance: Protections Against Unlawful Discrimination (“Philadelphia Ordinance”) to require all Philadelphia employers, regardless of size, to provide reasonable accommodations for employees with special needs resulting from pregnancy or childbirth. The new law makes it unlawful for any Philadelphia employer to fail to provide reasonable accommodations to an employee for needs related to pregnancy, childbirth, or a related medical condition, as long as the accommodation does not pose an undue hardship to the business. Reasonable accommodations may include: restroom breaks, periodic rest breaks, assistance with manual labor, maternity leave, reassignment to a vacant position, and/or job restructuring. The undue hardship test closely mirrors the Americans with Disabilities Act (“ADA”) undue hardship test, and requires an evaluation of the nature and cost of the accommodation; the overall financial resources of the employer’s facility or facilities involved in the provision of the reasonable accommodations, including the number of persons employed at such facility, the effect on expenses and resources or the impact of such accommodations on the operations of the employer; the number of the employer’s employees and the number, type and location of its facilities; and the type of operation or operations of the employer.
Importantly, the ordinance expands an employer’s obligations beyond those currently required under the ADA. Pregnancy itself is not a disability covered by the ADA, although pregnancy-related impairments such as hypertension, gestational diabetes, severe nausea, and sciatica are disabilities covered by the ADA when they substantially limit a major life activity. The Philadelphia Ordinance, however, requires employers to provide reasonable accommodations for needs relating to pregnancy and/or childbirth. Current federal and state laws prohibit employers from discriminating against applicants or employees on the basis of pregnancy.
All current employees and any new employees must be provided with written notice of their rights under the new law by April 20, 2014. Notice must also be posted conspicuously at the employer’s place of business in a location accessible to all employees. A copy of the applicable notice can be found here.
Philadelphia employers should review their equal employment opportunity, reasonable accommodation, and leave policies, as well as related training materials, to ensure that they are in alignment with the new requirements of this Ordinance.
As discussed in prior posts (available here and here), on September 19, 2012, New Jersey Governor Chris Christie signed into law an amendment to the New Jersey Equal Pay Act (“Act”), which requires an employer with fifty or more employees to provide written notice and post notices that detail an employee’s right “to be free of gender inequity or bias in pay, compensation, benefits or other terms or conditions of employment” under the New Jersey Law Against Discrimination, Title VII of the Civil Rights Act of 1964, and the Equal Pay Act of 1963.
Although this new law went into effect on November 19, 2012, employers were not obligated to comply with the notice posting requirement until a final form notice and rules were issued. On December 11, 2013 the New Jersey Department of Labor and Workforce Development (“NJDOL”) released the final notice, thus triggering the start of employer’s duties and obligations under the Act.
This year, employers with 50 or more employees, whether they work inside or outside New Jersey, must comply with the following actions by the following deadlines:
- January 6, 2014: Covered employers must post the Gender Equity Notice in each of their locations in an area that is accessible to all employees. If an employer has an employee-only internet site or intranet site to which all employees have access, the employer may satisfy the posting requirement by placing the notice on the site. A copy of the poster is available here.
- February 5, 2014: For each employee hired on or before January 6, 2014, covered employers must provide the employee with a copy of the Gender Equity Notice. For employees hired after January 6, 2014, employers have a continuing obligation to provide a copy of the Gender Equity Notice to each employee hired after January 6, 2014, at the time of hire.
- On or before December 31 of each year: Each year beginning in 2014, covered employers must provide each employee with a written copy of the Gender Equity Notice.
Written copies of the notice may be provided by e-mail, hard-copy, or on an Intranet website if the site is for the exclusive use of all employees, can be accessed by all employees, and the employer provides notice to the employees of its posting.
The Act requires that employees must sign an acknowledgement, either in writing or by electronic verification, that they have received the Gender Equity Notice and have read and understood its terms within thirty days of its receipt.
If you have questions regarding the administrative implementation of the Gender Pay Equity notice, please contact Amanda Lavis at ALavis@rhoads-sinon.com or 717-237-6797.
The recent Supreme Court case of the United States v. Windsor that struck down a key provision of the Defense of Marriage Act (“DOMA”) has been a landmark decision for the rights of same-sex couples. While there are some clear, highly publicized impacts of the decision, the legal implications of the decision are much broader than many people realize. The now unconstitutional provision of DOMA defined marriage as one between one man and one woman. As such, DOMA previously blocked the recognition of same-sex couples at the federal level. This included the validity of same-sex marriages for the purpose of immigration. So-called “sponsor visas,” or those brought by one U.S. citizen on behalf of their foreign spouse, were automatically denied for same-sex couples. The repeal of DOMA now affords same-sex couples the ability to apply for these sponsor visas.
Currently, there are an estimated 36,000 same-sex couples in the United States with one partner that is not a U.S. citizen. Already, in light of the recent Supreme Court ruling, many of those couples have applied for sponsored visas with the U.S. Citizen and Immigration Service (“USCIS”).
In order to apply for an immigrant visa, couples must (1) complete relevant forms with the USCIS, (2) submit a medical evaluation for the spouse applying for the visa, (3) demonstrate that the foreign spouse will not present a financial burden to the U.S., (4) prove that the foreign spouse has entered into the country legally, and (5) complete an interview showing that the couple is in a bona-fide marriage. If the visa is granted, and provided that the marriage is still intact, the applicant can then apply for U.S. citizenship in three years. This is the same process by which heterosexual couples obtain support visas that was previously denied to same-sex couples.
Special thanks to Sara E. Myirski for her assistance with this post.