by Kelli P. Lieurance, Attorney, Baird Holm, LLP
In December 2012, the U.S. Equal Employment Opportunity Commission (EEOC) approved its Strategic Enforcement Plan (SEP), which establishes national enforcement priorities and better integrates the agency’s enforcement responsibilities. The SEP passed 3-1 with bipartisan support.
The SEP grew out of the EEOC’s Strategic Plan for Fiscal Years 2012-2016, which was approved on February 22, 2012. The purpose of the SEP is to focus and coordinate the EEOC’s programs to have a sustainable impact in reducing and deterring discriminatory practices in the workplace. The SEP identifies six national priorities as the focus of the EEOC’s enforcement efforts over the next few years. This focus includes:
- Eliminating barriers in recruitment and hiring;
- Protecting immigrant, migrant and other vulnerable workers;
- Addressing emerging and developing employment discrimination issues;
- Enforcing equal pay laws;
- Preserving access to the legal system; and
- Preventing harassment through systemic enforcement and targeted outreach.
In addition to these national priorities, the SEP also calls for the development of local and federal sector priorities to address particular issues prevalent in either a geographic location or within the federal sector.
What does this mean for employers?
Employers should review their policies to assure compliance with the myriad of employment laws related to their employment practices. For instance, considering the EEOC recently issued guidance on the use of criminal background information, it is likely that the EEOC will focus its attention on an employer’s use of background checks in the hiring process. Specifically, if a company decides to use a prior conviction to disqualify an applicant from employment, it must make sure it applies such practice consistently, and that the reason for the disqualification is job-related and consistent with business necessity.
Employers should also note the EEOC’s emphasis on enforcing equal pay laws. For pay claims, the EEOC does not necessarily need an individualized complaint from an employee to initiate an investigation, but can file directed charges or commissioner charges as a means of enforcement. Because of this, the agency may not focus on a specific employee’s pay, but look at the pay practices for the entire workforce. Employers should audit their compensation systems on an at least annual basis to assure any potential areas of concern are addressed before they fall under the scrutiny of the EEOC. We encourage clients to consult with counsel to conduct such audits so that they are arguably protected by the attorney-client privilege.
Indeed, in light of the aggressive enforcement agendas of the EEOC and other federal agencies, a thorough audit of all employment practices is highly recommended. Such proactive efforts will go far to minimize the consequences should the EEOC or another federal agency come knocking—and in this current enforcement climate, they likely will. Please contact your counsel with questions about conducting an employment practices audit.
Kelli P. Lieurance is a member of Baird Holm‘s Labor, Employment and Employee Benefits Law Group. She advises clients on general day-to-day employment issues, including those related to the FLSA, FMLA, and other federal and state regulations. Follow Kelli on Twitter (@Employ_attny) for breaking employment law news! Kelli will be speaking at the IBA Human Resources Conference on April 16-17 in Ankeny.