Legal Solutions At Work

Update: Government Employers Must Provide Pay Transparency

As we reported in our November 23, 2016 Employment Alert, a Texas judge issued a preliminary injunction in response to President Obama’s Fair and Safe Workplaces Executive Order 13673. This Executive Order: (1) directed prospective contractors to disclose labor law violations and provided an explanation on how they would be factored into federal contract awards; (2) required contractors’ employees be provided with information regarding their pay; and (3) ensured that victims of sexual assault and harassment are not forced to arbitrate their claims if they work for companies with large federal contracts.

Prongs 1 and 3 (above) were enjoined by the Texas judge, meaning they will not go into effect unless something changes. But the preliminary injunction did not prevent the pay transparency provisions (prong 2) from taking effect on January 1, 2017. These provisions require contractors to provide employees on federal contracts exceeding $500,000 with a document listing certain information each pay period, including hours works, overtime hours, rate of pay, gross pay, and an itemized summary of all additions to or deductions from the employee’s earnings for that pay period. Employers do not have to provide this information to independent contractors or exempt employees made aware of their status.

It is unclear at this time how the incoming Administration may change this Executive Order. Federal contractors, however, are advised to comply with the pay transparency provisions until further notice.

The EEOC Strikes Back: Updated Guidance on Retaliation

The EEOC recently released updated guidance for retaliation claims as they relate to Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, Title V of the Americans with Disabilities Act, Section 501 of the Rehabilitation Act, the Equal Pay Act, and Title II of the Genetic Information Nondiscrimination Act. The new guidance addresses the intersection between these statutes and enforcement by the EEOC, including information on the scope of protected employee activity, evidence necessary to support a retaliation claim, remedies available, and specific examples of employer retaliation. Even though the guidance has not been updated since 1998, retaliation remains one of the most frequent bases of discrimination. The update came with two additional resources: a Q&A publication and a small business fact sheet (which can be found here and here). We recommend that employers review and keep this information in mind when interacting with employees.

In addition, the EEOC has collaborated with the NLRB, DOL, OSHA, and the Office of Federal Contract Compliance Programs to release a joint Fact Sheet focusing on the various anti-retaliation provisions of the workplace laws enforced by these agencies. Specifically, the Fact Sheet – “Retaliation Based on the Exercise of Workplace Rights is Unlawful” – clarifies that employers are prohibited from retaliating against workers for exercising their workplace rights, regardless of the workers’ immigration status. This joint effort by the agencies responsible for enforcing workplace rights underscores the focus on ensuring that all workers are protected against retaliation for seeking to enforce their rights. The Fact Sheet can be found here.