Employment Law Update on EEOC Guidelines, Emergency Preparedness, Furloughs and EFCA
By Dunn, Carney, Allen, Higgins & Tongue 
April proved to be a very active month, and ended with new challenges for employers. In addition to the frenzy of tax season and winding up Q1, employers learned of several new developments including: the EEOC announcement of new guidance for the protection of employees who provide care to others; the possibility that emergency preparedness plans may be tested if Swine Flu continues to spread; the realization that employee furloughs are not as easy as originally thought; and new questions about the future of the Employee Free Choice Act following Senator Specter’s announced intention to switch parties. Given this, it’s no wonder you are all feeling more than a little stretched.
EEOC Issues Supplemental Guidelines for Workers with Caregiving Responsibilities
On April 22, 2009, the EEOC issued guidelines containing Best Practices for employers who employ workers with caregiving responsibilities. These guidelines supplement the prior 2007 EEOC guidelines, which explained the circumstances under which discrimination against workers with caregiving responsibilities may constitute discrimination based on sex, disability or other protected characteristics.
The updated guidelines include the following suggestions for employers:
• Ensure managers at all levels are aware of and comply with the organization’s work/life policies and discrimination laws;
• Monitor compensation practices and performance evaluation systems for patterns of potential discrimination against caregivers;
• Review policies that limit flexibility;
• Ensure employment decisions are documented; and
• Identify and remove barriers to re-entry for those who have taken leave for caregiving responsibilities.
Employers should be aware that these guidelines do not create a new protected class for caregivers; however, discrimination against those with caregiving responsibilities could give rise to a claim of discrimination against a member of a protected class. For instance, asking female applicants, but not male applicants, about their caregiving responsibilities is prohibited conduct under Title VII as a form of sex discrimination. More specific examples are set forth in the EEOC guidelines.
Emergency Preparedness and the H1N1 Flu (Swine Flu)
Many HR professionals remember the push to create Emergency Preparedness policies several years ago. The need for such policies, and perhaps even to update them, has come again.
In addition to your own policies, you may want to access the many resources assembled by the federal government. Its new website, www.PandemicFlu.gov, is filled with resources and helpful information to reduce health risks in the workplace, particularly in the workplace resources section. Finally, the EEOC has issued a reminder that any employment actions relating to the flu should be based solely on legitimate and neutral considerations, and should not focus on, or be influenced by, any employee’s place of national origin or perceived disability. To review this Notice, click here.
Some Businesses Discover Unintended Consequences With Employee Furloughs
At first blush, furlough programs seemed to be a positive and creative alternative to job eliminations or RIFs. However, as they have been implemented, many employers are experiencing consequences they never expected. Here are just a few:
• Lower than expected cost savings due to the employer’s ongoing benefit obligations and possible increased overtime, not to mention the difficult scheduling logistics in certain industries;
• Decreased quality and/or productivity as employees hurry to complete projects, lose time and progress during the furlough period, ignore deadlines, let work pile up, or decide that their results are ‘good enough’ at the end of their shortened week. These problems may even lead to angry customers, lost revenue, and even more serious long-term damage to the Company;
• A noted drop in morale, particularly among your best performers who know they work hard and deserve better. Other employees may be distracted by the change, spend time speculating, worrying, or gossiping about what this means and whether they will have a job when it is time to return from furlough or begin their search for a new job – on Company time;
• Discontent among employees may lead to a variety of problems, such as destruction of team dynamic, loss of creativity and motivation, or desire for something better, and susceptibility to the promises of a union organizer; and
• Disappointment or even anger if the Company is not able to reverse the economic challenges and moves in the direction of a RIF anyway.
The decision to adopt a furlough policy or strategy is not a one-size-fits-all solution. Companies are well served to carefully evaluate the reality of their workforce, industry, and economic condition before deciding on this interim step as an alternative to layoffs.
New Life Breathed Into The Employee Free Choice Act?
Senator Specter’s recent announcement to switch from the Republican to the Democratic Party has many people speculating about the future. Senator Specter initially declined to support the current version of the Employee Free Choice Act. Whether he will feel differently now remains to be seen. We will continue to watch this Bill and provide updates as it works its way through the legislative process.