• EEOC Charges Again at Record Levels
• Experts Predict Increase in “Regarded As” Disabled Claims
• Increase in Telework as an Accommodation
• New IRS Program Re: Independent Contractor Misclassification
• HR Law Brief News Alerts

These updates are information only and not intended to be legal advice.  Receipt of this information does not create an attorney-client relationship.

EEOC CHARGES AGAIN AT RECORD LEVELS

For its fiscal year ending September 30, 2011, the Equal Employment Opportunity Commission (EEOC) received a record number of charges and obtained the largest amount of monetary relief ever through its administrative enforcement actions. The EEOC received 99,947 charges last year, the most in its half a century of operation. This is the second straight year the EEOC has received a record number of charges. The agency also recovered $364.6 million- another record amount- from employers accused of discrimination, harassment and retaliation. These recent statistics confirm that EEO issues continue to pose significant litigation and financial risks for today’s employers. Indeed, while most government agencies must face cuts this year, the EEOC is likely to get an increase in its enforcement budget, allowing it to restore enforcement jobs, modernize technology and increase training.

EXPERTS PREDICT INCREASE IN “REGARDED AS” DISABLED CLAIMS

HR law commentators are predicting an increase in the number of persons claiming they were “regarded as” disabled in violation of the Americans With Disabilities Act Amendments Act (ADAAA). “Regarded as” claims typically involve persons who are not disabled but who are treated differently in terms or conditions of employment because of an employer’s perceptions about their health or abilities. The ADAAA, effective as of January 1, 2009, revised the relevant definition so that someone is “regarded as” disabled if “subjected to an action prohibited under [the ADA] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” Commentators think that those asserting disability discrimination claims also will try to assert “regarded as” claims because one does not actually have to be disabled to assert it. The best defenses to a “regarded as” claim are lack of knowledge and legitimate business reason. In other words, it is best not to know about the health condition if possible (and if you can do so without violating your other obligations to give reasonable accommodations and provide FMLA leave). Moreover, all employment actions should be justified by legitimate business reasons independent of someone’s health.

INCREASE IN TELEWORK AS AN ACCOMMODATION

Speaking of ADAAA accommodations, a recent news article reports that employers are increasingly using telework as a reasonable accommodation. The increases appears to result both from improvements in technology allowing persons to work at home as well as the passage of the ADAAA, which liberalized the coverage of the laws prohibiting disability discrimination and requiring reasonable accommodation. Employer requests for information about telework from the Job Accommodation Network (JAN) have tripled in the last few years. Telework issues are probably best managed with an overall company policy addressing the issue as well as specific instructions given to and signed by teleworkers indicating the logistics of the accommodation (e.g. expectations, length of time, equipment management issues, etc.).

NEW IRS PROGRAM RE: INDEPENDENT CONTRACTOR MISCLASSIFICATION

The National Society of Human Resource Management (SHRM) reports that the Internal Revenue Service has launched a new voluntary worker misclassification settlement program. The program is designed to help employers reclassify workers with a minimum of bureaucratic red tape and cost. State and federal agencies are aggressively auditing employers to ensure that employees are not misclassified as contractors. For more details, go to: http://www.shrm.org/LegalIssues/FederalResources/Pages/
NewIRSProgram.aspx.

HR LAW BRIEF NEWS ALERTS

Here are a few brief points on HR issues currently in the news. First, we have all heard about the Penn State scandal dealing with failure to report potential child abuse problems and the criminal. Some commentators also are warning that the matter suggests a failure to adequately enforce policies designed to prevent an environment of sexual harassment in the workplace. Second, the United States Supreme Court will likely decide by June of 2012 whether the national health reform laws passed by Congress are constitutional. Federal appeals courts have reached different conclusions on this question. Finally, the federal Justice Department has filed a lawsuit in Utah federal court challenging certain immigration reform provisions passed last year by the Utah Legislature. For more details, see: http://www.sltrib.com/sltrib/politics/52972971-90/497-attorney-bill-department.html.csp.