In January, the U.S. Equal Employment Opportunity Commission (EEOC) issued a press release announcing that 93,277 workplace discrimination charges were filed with the federal agency nationwide during Fiscal Year 2009 - the second highest level ever. The number of charges alleging age-based discrimination reached the second-highest level ever. Continuing a decade-long trend, the most frequently filed charges with the EEOC in FY 2009 were charges alleging discrimination based on race (36%), retaliation (36%), and sex-based discrimination (30%). Monetary relief obtained by the EEOC for victims in FY 2009 totaled over $376 million.
In releasing these statistics, EEOC Acting Chairman Stuart J. Ishimaru stated, “[t]he latest data tell us that, as the first decade of the 21st century comes to a close, the Commission’s work is far from finished.” The EEOC opined that the near-historic level of total discrimination charge filings may be due to multiple factors, including greater accessibility of the EEOC to the public, economic conditions, increased diversity and demographic shifts in the labor force, employees’ greater awareness of their rights under the law, and changes to the agency’s intake practices that cut down on the steps needed for an individual to file a charge.
Undoubtedly, from the ADA Amendments Act, to new FMLA regulations, to the stimulus package, 2009 was a year of change in the employment law arena. With such sweeping changes and in light of the EEOC’s reported statistics for FY 2009, this is a good time for schools to internally audit, update and review Board policies, administrative guidelines, and employee handbooks. Here are some recommendations for avoiding liability.
1. Review and update job descriptions. Accurate job descriptions can be a school district’s best tool in ADA matters, interviewing, evaluations and workers’ compensation claims. However in order for job descriptions to be a useful tool, they must be current and accurate. A task to accomplish this year may be to review job descriptions to ensure they are complete, accurate, and correspond to the actual duties performed.
2. Check your postings. The new FMLA/DOL poster has been published including the new provisions on military leave. Ensure that your DOL, state, federal and workers’ compensation notifications are all current and up to date. Don’t wait for a surprise audit or investigation to alert you to deficiencies.
3. Provide harassment training. Harassment training is a great way to reiterate the commitment to a harassment free workplace. It is also a way to alert individuals to the means by which to report those concerns. Review applicable policies, administrative regulations and employee handbooks on harassment and/or hostile work environment with all staff. Each year have all employees acknowledge, in writing, that they have received and understand such policies and regulations. Taking these actions will not only deter harassment, but may alert you to potential problems and aid in the defense of future claims.
4. Conduct ADA training. The ADA Amendments Act went into effect in 2009. Ensure that your administrative team, supervisors and managers understand the new definitions and obligations to better engage and interact with your employees and job applicants.
5. Update military leave policies. With the recent passage and amendment to the FMLA military leave provisions for the family of military members, ensure that policies and regulations accurately reflect the obligations under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and FMLA, with regard to protection extended to military members and their families.
6. Review, update or implement performance evaluations. Is your district using the same evaluation instrument it used a decade ago? Are all employees (including all classified employees) subject to a regular performance evaluation cycle? Performance evaluations are only as good as the information they solicit and the timeliness of such information. Review evaluation instruments, and if necessary, update them to accurately capture the data you need. Train administrators, supervisors and managers to understand the deadlines, procedures and content of performance evaluations that are required for each class of employees by law, policy, and if applicable, collective bargaining agreement. If a class of employees are unionized, review the current collective bargaining agreement to ensure any desired changes to the evaluation instrument can be made mid-term.
7. Update FMLA forms. With the new regulations that came into effect in 2009, the Department of Labor published new FMLA certification forms and notifications that must be provided to employees. Review your forms and notices to ensure they are in compliance with the new regulations and DOL requirements.
8. Conduct a thorough handbook review. Update any employee handbooks to ensure that all necessary policies are included, are current, and reflective of the above-mentioned 2009 laws. If updates are necessary, the employee handbook should reflect the date such changes were made. Have each employee acknowledge, in writing, that they have received, reviewed, and understand the updated handbooks.
9. Update COBRA notices and policies. Effective March 1, 2009, the American Recovery and Reinvestment Act of 2009 (ARRA) expands COBRA continuation coverage to provide a 65% federal subsidy toward COBRA premiums for up to nine months to individuals who were involuntarily terminated from their employment between September 1, 2008 and December 31, 2009. Employers are obligated to notify eligible individuals of their rights. School districts may need to update COBRA policies and materials to include these provisions and new DOL notices. Identify those employees who were laid off and/or involuntarily terminated after September 1, 2008 and notify these former employees of their rights and responsibilities under ARRA. Develop procedures for administration of the COBRA subsidy and reimbursement of the 65% of premiums.
10. Audit your Collective Bargaining Agreements. If your district is unionized, review all current collective bargaining agreements to determine if any of the aforementioned changes to the law may have a bearing on any provisions in your current labor contract.