Feds Increase Enforcement Against Employers

The Bush administration made significant changes in the laws affecting employers, most significantly to the Americans with Disabilities Act, which now treats almost every employee as disabled and provides enormous protection from discrimination to employees. I’ve written before about the laws that were changed during the Bush years and what employers should do to protect themselves from missteps. (Click here for that article).

The Obama administration has not yet passed as many significant pieces of legislation in the area of employment law, other than the Lilly Ledbetter Fair Pay Act. However, the new president has put a much greater emphasis on enforcing the laws that are already on the books. Employers can no longer expect an understanding and cooperative investigator when the Department of Labor, the EEOC, the immigration service or another federal agency comes to call on your business.

President Obama’s executive branch, which is charged with enforcement of the existing employment laws, is pouring money and personnel into enforcing laws that protect employees. For example, the administration’s budget for the Department of Labor included a $104.5 billion increase, some of which the Secretary of Labor explained would be used to hire 500 additional full-time enforcement personnel in the areas of worker safety and wage and hour investigations. In Amarillo, that means that the number of investigators has doubled from one to two local field officers auditing your pay practices for overtime and minimum wage violations.

After Congress appropriated an extra $15 million to the Equal Employment Opportunity Commission in March 2009, the EEOC began actively filing many more cases against employers. In September 2009 alone, the EEOC filed 90 cases, with 22% of those filed against Texas employers. These 90 cases in one month should be compared to the 325 cases that the Bush administration’s EEOC filed in all of fiscal year 2008. The EEOC did not back off in October 2009, continuing to file multiple suits in Texas and nationwide against employers accused of sexual harassment, disability discrimination, age discrimination and other violations of federal employment law.

Other agencies are also beefing up their enforcement efforts. As far as worker safety is concerned, OSHA is conducting comprehensive safety inspections for nearly 4000 high-hazard worksites, including nursing homes, animal processing facilities and manufacturing plants. The Department of Justice is hiring more than 50 new civil rights attorneys to prosecute violations of criminal civil rights statutes.

Finally, U.S. Immigration and Customs Enforcement (ICE) announced on July 1 that it issued notices of inspection to 652 businesses nationwide, beginning the involuntary inspection and auditing of those companies’ hiring records. The purpose was to determine whether the businesses are complying with the immigration laws, particularly the requirement that companies have an I-9 employment eligibility form completed on each employee and that the documentation used by the employee reasonably appears genuine. ICE recently announced that this effort revealed that 16% of the I-9s reviewed were suspect, which could lead to civil penalties.

On November 19, another 1000 businesses were notified that they would be audited by ICE. These businesses were selected because they had a connection to public safety and national security.

How should you react as an employer to all of these upgraded enforcement efforts by the federal government? You must pay special attention to all of your employment practices to eliminate any liability. This attention should be focused on your pay practices (to avoid overtime and minimum wage violations), your hiring practices (particularly accurate completion of the I-9 forms), your supervisory practices (to eliminate illegal discrimination of any kind), your medical and leave policies (to prevent FMLA and ADA claims), and most importantly, your firing practices, because more than half of all federal employment law claims occur because of or after the employee is terminated.

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