The Equal Employment Opportunity Commission recently released preliminary figures on sexual harassment activity for Fiscal Year 2018, which ended September 30. The EEOC’s figures indicate an increase in sexual harassment charges and EEOC lawsuits, and a dramatic increase in the amount paid to settle sexual harassment charges. Then, last week, the Trump Administration issued its regulatory agenda for Fall 2018, which contains a number of labor and employment-related matters.

EEOC #MeToo uptick

The following are highlights of the EEOC’s recently released preliminary numbers on sexual harassment for Fiscal Year 2018:

There was a 12 percent increase in charges alleging sexual harassment in FY 2018 versus FY 2017. This doesn’t sound outlandish, but only about a month ago Commissioner Chai Feldblum was quoted as saying that the EEOC had had about a 3 percent increase in sexual harassment charges since #MeToo. Before that, the EEOC was saying that it hadn’t seen any increase.
The agency recovered $70 million “through litigation and administrative enforcement” in FY 2018, compared with only $47.5 million in FY 2017. This is a dramatic increase, but it is not surprising. In light of #MeToo, many employers have probably been anxious to resolve sexual harassment charges quickly and may have been willing to pay more to do it.
The agency filed 41 lawsuits alleging sexual harassment in FY 2018. The EEOC claims this is a 50 percent increase over the prior fiscal year, but it is unclear whether this is a 50 percent increase in sexual harassment lawsuits. The EEOC’s wording is imprecise: “The EEOC filed 66 lawsuits challenging workplace harassment, 41 of which alleged sexual harassment. This is more than a 50 percent increase in suits challenging sexual harassment over FY 2017.” It isn’t clear what “This” refers to, and it isn’t clear what type of lawsuit in FY 2017 was the comparator.

That said, employment lawyers know that the EEOC filed a flurry of sexual harassment lawsuits shortly before FY 2018 ended. There has even been speculation that the agency may have had a “quota.” Whether these lawsuits have more merit than sexual harassment lawsuits that the EEOC has filed in the past remains to be seen.

It’s important to note that the EEOC normally releases its official charge and litigation statistics early in the calendar year following the end of its fiscal year, meaning that the real numbers for FY 2018 probably won’t be available until January or February 2019.

Although these numbers are preliminary and perhaps subject to refinement, it does appear that the long-dreaded #MeToo “uptick” in charges may be occurring and that the EEOC is more willing to sue than it was in the past. Employer-side attorneys should make their clients aware.

Fall 2018 regulatory agenda

Last week, the Trump Administration issued its Fall 2018 regulatory agenda, and several items will be of interest to labor and employment lawyers:

No wellness rules until June 2019. In May 2016, the EEOC issued regulations relating to wellness programs and how participation could be considered “voluntary” for purposes of the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. The AARP sued the EEOC, and a federal judge in the District of Columbia found in favor of the AARP on most points. After giving the EEOC a chance to revise the rules, which the EEOC didn’t do, the judge vacated portions of the rules. However, his decision was not to take effect until January 2019. The purpose of the delay was to allow the EEOC another chance to issue amended regulations. The regulatory agenda says there will be no new wellness regulations until June 2019, which appears to mean that the existing regulations will be officially vacated as of January 2019.
No end to “quickie elections” anytime soon. The regulatory agenda says there are no plans in the next 12 months to issue regulations to amend or replace the so-called “quickie election rule” issued by the Obama Administration and currently in effect. The current rule shortened the time for campaigns and streamlined election procedures, both of which are believed to disadvantage employers in union campaigns.
“Joint employer” standard under the National Labor Relations Act. The National Labor Relations Board issued proposed regulations in September to tighten the standard for finding a joint employer relationship for NLRA purposes. The comment period on the proposed regulations will close November 13.
Tracking of workplace injuries and illnesses. Proposed regulations issued in July would require employers to submit information about workplace injuries and illnesses electronically to the Occupational Safety and Health Administration but would not require employers to submit their OSHA 300 logs or 301 incident reports. Final regulations are expected in June 2019.
Religious conscience protections for federal contractors. The Office of Federal Contract Compliance Programs will issue proposed regulations regarding protections for federal contractors who have religious objections to complying with certain OFCCP requirements, presumably directives prohibiting discrimination based on sexual orientation or gender identity. The proposed regulations may be issued in December 2018.
Overtime rule. The Wage and Hour Division of the U.S. Department of Labor expects to issue proposed regulations on the white-collar exemptions to the Fair Labor Standards Act in January 2019. The proposed rule is expected to raise the salary threshold from the current $455 a week, but not as high as the threshold of $913 a week that was adopted by the Obama Administration (and ultimately enjoined by a court).
“Joint employment” under the FLSA. Proposed regulations on when entities are “joint employers” for FLSA purposes are expected in December 2018.

October 24, 2018/by Labor

You might also like