Hot Topics - January 5, 2009

New Rule Affects Foreign Agricultural Workers

In an attempt to streamline processing and improve worker protections, the U.S. Department of Labor (DOL) has amended its regulations regarding employment of foreign workers under the H-2A temporary agricultural worker program. The rule, effective on January 17, 2009, marks the first change for the guest worker program in over two decades.

The H-2A temporary agricultural worker program is the only visa program that allows foreign agricultural workers to work legally on farms in the United States. The program is intended to provide labor to meet a seasonal or temporary need and does not allow long-term or permanent employment of foreign agricultural workers.

Instead of the current process that requires DOL certification of wage rates, working conditions, provision of housing, recruitment, and other elements, the new H-2A rule requires employers only to attest that statutorily mandated procedures have been followed. Employer obligations under existing H-2A program requirements, nonetheless, have not changed.

The new rule also grants greater authority to DOL to audit H-2A applications either randomly or for cause. And, the regulation grants DOL the authority to revoke already approved H-2A labor certifications or to debar employers from the H-2A program if fraud or other problems are discovered. Finally, the rule prohibits H-2A workers from paying any fees related to their employment in the United States.

EEOC Releases Charge Data and Discusses Plans for 2009

The EEOC recently released preliminary data on the number of charges of discrimination filed with the agency for the fiscal year ending September 30, 2008. This data demonstrates what many employers are experiencing in this tight economy. The EEOC received 95,402 private sector discrimination charges which represents a 15.2% increase over fiscal year 2007. The EEOC also reported that it filed 290 lawsuits, 111 of which were class action lawsuits (just under 40%). The EEOC will likely continue pursuing a significant number of class action lawsuits based on its increased focus in revitalizing systemic enforcement but specifically mentioned that the systemic initiative will not result in neglect of individual claims, especially those charges under the Americans with Disabilities Act. The EEOC reported that it recovered approximately $274.4 million for Charging Parties. The report also notes that less that half of the charges filed are resolved within 180 days; a statistic most employers are very, very aware of as they wait for a determination.

In 2009, the EEOC also expects to issue final rules on two issues impacting employers. First, the EEOC is required to issue regulations one year after the enactment of the Genetic Information Non-Discrimination Act (GINA). GINA prohibits discrimination in employment based on genetic information. The law is effective November 2009. The EEOC will issue proposed rules in January 2009 and expects to adopt the final rules no later than May 21, 2009. Second, the EEOC will complete its rulemaking for disparate impact claims under the Age Discrimination in Employment Act (ADEA) in light of a 2005 Supreme Court case, Smith v. Jackson, which affirmed that disparate impact is a cognizable theory of discrimination under the ADEA but indicated that "reasonable factors other than age" ("RFOA"), not "business necessity," is the appropriate model for the employers' defense against such a claim. Accordingly, the EEOC intends to revise its regulation on disparate impact.

Government and Employers Should Focus on Workplace Flexibility and Training in Downturn

A Washington, D.C. think tank, the New America Foundation, held a program entitled "Social Policy After the Economic Crisis" on December 5, 2008. A panel concluded that the new administration should attend to job training programs and workplace flexibility options. This would most help the needs of workers in the current economic climate. The panel had speakers who talked of various aspects of workforce development policy, including unemployment insurance, training programs, and infrastructure.

One panel member, David Gray, summed up the issue of training and said "the idea of workforce training has been ignored over the past few years." He felt that a new administration and a new Congress created an opportunity to refocus on workforce training and how it's done. With regard to unemployment, Ray Uhalde with the National Center on Education and the Economy emphasized the current unemployment insurance system only provides a small amount of income and fails to treat the underlying issues affecting unemployment. He felt strongly that there needs to be a connection between unemployment insurance and training. To fix this he recommended "one-stop career centers," which he referred to as emergency rooms for unemployed people. Such a center would put adult education, technical education, postsecondary career education, and workforce training programs together.

Katie Corrigan of Workplace Flexibility 2010, based at Georgetown University Law Center, said "[There's] a basic mismatch between the structure of the workplace and the needs of the workforce." More employees now enter and leave the workforce for many reasons. Her idea is to integrate flexibility issues into the workforce through on-going job training and development and having business look more carefully at the cost of flexible work arrangements compared to replacing and retraining new workers.

Are you training your best workers for your future business needs in a stronger economy? We can help with that. Call our Organizational Development and Learning Department at 303.839.5177.

Question of the Month - January 2009

English-Only Policies - Are They Ever Acceptable?
With a growing number of multi-lingual employees in the workforce, employers should be aware of the guidelines for and possible consequences of implementing and enforcing English-only policies.

A federal court recently approved a consent decree settlement of an Equal Employment Opportunity Commission (EEOC) lawsuit against the Salvation Army over the firing of two Spanish-speaking employees who failed to adhere to the employer's "English only" policy.

In that suit, the EEOC accused the Salvation Army of national origin discrimination under Title VII for enforcing an English-only policy that required its thrift store employees to speak only English in the workplace, even when on breaks. The EEOC argued that the English-only policy violated Title VII because it was not justified by "business necessity" when it was used to terminate two clothes sorters who had no customer contact.

Perhaps under pressure from Congress, which debated prohibiting the EEOC from utilizing any funds to file English-only suits, the agency somewhat moderated its position. The consent degree was unusual in that it did not involve any monetary penalty against the Salvation Army nor did the Salvation Army admit to any wrongdoing. The EEOC accepted that an employer's policy can require employees to use English in the workplace "to the best of their abilities when speaking to any other employee, beneficiary, customer, or a supervisor." The Salvation Army, however, agreed that employees are allowed to speak their native language during work breaks and to use languages other than English with customers who speak the same foreign language.

English-only policies may be used and enforced if speaking English is a business necessity. Requiring employees to speak English during working time when speaking to customers, supervisors, and coworkers is generally accepted. Requiring employees to speak only English during breaks, in private, or requiring employees to demonstrate English proficiency when English is not a bona fide job requirement, however, is risky. This position is consistent with a decision of the Tenth Circuit Court of Appeals that found, "the less the apparent justification for mandating English, the more reasonable it is to infer hostility toward employees whose ethnic group or nationality favors another language." Maldonado v. City of Altus (10th Cir. 2006). The Tenth Circuit covers Colorado, Wyoming, New Mexico, Utah, Kansas, and Oklahoma.

If you have or are considering an English-only policy for your workplace, you should contact MSEC for assistance.