Government Agencies & Agendas:
More than just alphabet soup!
Presented by:
R. Andrew Hutchinson, Esq.
Phone: (423) 928-0181
Email: dhutchinson@bakerdonelson.com
United States Department of Labor ("DOL")
• Regulates issues relating to businesses, job seekers,
workers, retirees, contractors, and grantees
• Wages & Hours - Fair Labor Standards Act ("FLSA")
• Workplace Safety & Health
• Occupational Safety and Health ("OSH") Act is administered
by the Occupational Safety and Health Administration
("OSHA")
• Workers' Compensation
• Employee Benefit Security
• Reconciliation Act of 1985 ("COBRA") and the Employee
Retirement Income Security Act ("ERISA") - administered
by the Employee Benefits Security Administration ("EBSA")
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DOL Continued
• Unions & Their Members - Labor-Management
Reporting and Disclosure Act ("LMRDA")
• Uniformed Services Employment and Reemployment
Rights Act - administered by the Veterans' Employment
and Training Service ("VETS")
• The Family and Medical Leave Act ("FMLA")
• Mine Safety & Health - administered by The Mine Safety
and Health Administration ("MSHA")
• Plant Closings & Layoffs - Worker Adjustment and
Retraining Notification Act ("WARN")
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Fair Labor Standards Act
• 1 or more employees AND engaged in interstate
commerce with gross annual sales of over $500,000
• All hospitals and schools are covered
• Requires that employees be paid the federal minimum
wage, plus time-and-a-half for hours worked over 40 in a
work week
– $7.25 per hour for now
• Certain executive, administrative, learned professional,
outside sales, and computer-skilled workers are exempt
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FLSA continued
• Also Regulates Child Labor Laws
• Prohibits Retaliation
• Enforces Penalties
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Workers’ Compensation
• Local DOL office is located in Kingsport
• Is a no fault system
• Must have Workers’ Compensation Insurance if your
business has 5 or more employees
• Governor has proposed significant changes
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Office of Federal Contract Compliance
Programs
•
Monitors affirmative action and equal employment opportunities
•
Conducts compliance evaluations and complaint investigations of
federal contractors and subcontractors personnel policies and
procedures
•
Obtains Conciliation Agreements from contractors and
subcontractors who are in violation of regulatory requirements
•
Monitors contractors and subcontractors progress in fulfilling the
terms of their agreements through periodic compliance reports.
•
Recommends enforcement actions to the Solicitor of Labor
•
The ultimate sanction for violations is debarment - the loss of a
company's federal contracts. Other forms of relief to victims of
discrimination may also be available, including back pay for lost
wages
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OFCCP Strategies
•
Determine if you are a government contractor or subcontractor and
are covered under the affirmative action regulations. Typically it is
those organizations with 50 or more employees in a 25 mile radius,
who have a contract of $50,000 or more in federal funds.
•
Produce a plan every year
•
Maintain employee data
•
Review compensation equity – Compensation equity is coming
under increased scrutiny under the Obama administration
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OSHA
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Occupational Safety and Health Act of 1970 ("OSH Act")
Under the OSH Act, employers are responsible for providing a safe
and healthful workplace.
Sets and enforces workplace safety and health standards
Specific rules for some industries such as construction and
agriculture
Has interagency agreements with just about every other federal
agency
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OSHA continued
• Each year, almost 6,000 Americans die from workplace
injuries and perhaps as many as 50,000 workers die
from illnesses in which workplace exposures were a
contributing factor. See, Bureau of Labor Statistics, U.S.
Dep’t. of Labor, Census of Fatal Occupational Injuries
• OSHA’s general duty clause requires that each
employer: "furnish to each of his employees ... a place of
employment which [is] free from recognized hazards that
are causing or likely to cause death or serious physical
harm to his employees . . ." 29 U.S.C. § 654(a)(1).
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OSHA continued
Cases involving violations of OSHA standards are initiated
by the issuance of a citation. The Department of Labor
issues the citation through OSHA’s compliance officers.
The citation notifies the employer of the nature of the
violation in the employer’s workplace and states the period
within which the violation must be corrected or abated. 29
C.F.R. § 1903.14(h). The citations must be posted so that
employees may see them. 29 U.S.C. § 1903.16(a). A
notice of the proposed penalty will accompany the citation.
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NLRB
• Charged with safeguarding employees’ rights to organize
• Established in 1935 under President Franklin
Roosevelt’s administration
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NLRB continued
•
The National Labor Relations Act applies to most private sector
employers, including manufacturers, retailers, private universities,
and health care facilities.
•
The NLRB is expanding its reach to nonunion employers by
investigating "unfair labor practices" very broadly.
•
Social media
•
HR investigations
•
At-will clauses in employee handbooks
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EEOC
•
Responsible for enforcing federal laws that make it illegal to
discriminate against a job applicant or an employee because of the
person's race, color, religion, sex (including pregnancy), national
origin, age (40 or older), disability or genetic information
•
Illegal to discriminate against a person because the person
complained about discrimination, filed a charge of discrimination, or
participated in an employment discrimination investigation or lawsuit
•
Most employers with at least 15 employees are covered by EEOC
laws (20 employees in age discrimination cases). Most labor unions
and employment agencies are also covered.
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EEOC continued
• Renewed sense of enforcement
• Increase in follow-up on requests for additional
information
• More on-site investigations
• The use of fact finding conferences
• New commitment to cooperation between the EEOC and
the DOL
• Public disclosure of intent to pursue more detailed
investigations of charges
• Use of Universal Mediation Agreements
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EEOC Statistics
•
FY 2011 – 99,947
•
FY 2012 – preliminary numbers -- 99,632
•
EEOC secured more than $365.4 million in monetary benefits for
individuals – the highest level of relief obtained through
administrative enforcement in the EEOC’s history
•
Retaliation is still the most common charge of discrimination
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EEOC Request Example
• Describe all training on
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Equal Employment Opportunity
The ADA and similar state statutes
Requests for accommodations
Retaliation
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Request Example continued
• Provide documents to show:
− The process used to evaluate an employee’s request
for accommodations and the criteria considered in
evaluating a request;
− All accommodations that were considered in response
to Charging Party’s request for accommodation; and
− An explanation for why each accommodation was
rejected.
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Tennessee Human Rights Commission
("THRC")
• Responsible for enforcing the Tennessee Human Rights
Act and the Tennessee Disability Act which prohibit
discrimination in housing, employment, and public
accommodation on the basis of race, color, creed,
national origin, religion, sex, disability, familial status
(housing only) and age (40 and over in employment)
• THRC has cooperative agreements with the U.S.
Department of Housing and Urban Development ("HUD")
and the EEOC
• Governed by a 15 member board of Commissioners
appointed by the Governor
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THRC continued
• 8 or more employees
• Prohibits employment discrimination on the basis of:
– Race
Pregnancy
– Creed
Handicap
– Color
– Religion
– Sex
– Age
– National origin
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THRC continued
• Remedies Available
− Employment
− Reinstatement or Front Pay
− Back Pay
− Lost Benefits
− Interest
− Costs
− Attorneys’ Fees
− Damages (Humiliation and Embarrassment)
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EEOC/THRC
• Joint Sharing Agreement
• Charges of Discrimination
• Mediation
• Investigations
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U.S. Department of Housing and Urban
Development
• Federal Fair Housing Act - prohibits housing
discrimination based on your race, color, national origin,
religion, sex, family status, or disability
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Employee Complaints
• Retaliatory Discharge
• Cannot "get back at" an employee for reporting unlawful
activities or perceived discrimination, or for participating
in an investigation regarding same
• Test under Title VII as to whether employer conduct was
retaliatory: Would the conduct dissuade a reasonable
worker from making or supporting a charge of
discrimination?
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Whistleblower Actions
Most labor and public safety laws and many environmental
laws mandate whistleblower protections for employees who
complain about violations of the law by their employers.
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Questions?
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