employment practices liability – Premier Risk Management

EEOC Playing Hardball When it Comes to Employee Background Checks

Recently some predominant companies have been in the cross-hairs of the Equal Employment Opportunity Commission (EEOC). Since the EEOC found it necessary to release new guidelines related to background checks I thought I would share various articles that can be insightful for business today and a good read for the HR departments. Additionally here are some of those specific stories as they relate to some of those large companies answering to the EEOC.

Bottom line … whether you win or lose against the EEOC each employment practice liability insurance (EPLI) policy has a deductible. Premiums are impacted based on claim activity thus you can be financially impacted. End of the day, policy and procedures can be an important aspect of your risk management program to mitigate cost.

New Guidelines On Pregnancy Discrimination & Related Issues

Equal Employment Opportunity Commission (EEOC) Issues Updated Enforcement Guidance On Pregnancy Discrimination And Related Issues

Fact Sheet for Small Businesses and Question and Answer Document Also Released

WASHINGTON — The U.S. Equal Employment Opportunity Commission (EEOC) today issued Enforcement Guidance on Pregnancy Discrimination and Related Issues, along with a question and answer document about the guidance and a Fact Sheet for Small Businesses. The Enforcement Guidance, Q&A document, and Fact Sheet will be available on the EEOC’s website.

This is the first comprehensive update of the Commission’s guidance on the subject of discrimination against pregnant workers since the 1983 publication of a Compliance Manual chapter on the subject. This guidance supersedes that document and incorporates significant developments in the law during the past 30 years.

In addition to addressing the requirements of the Pregnancy Discrimination Act (PDA), the guidance discusses the application of the Americans with Disabilities Act (ADA) as amended in 2008, to individuals who have pregnancy-related disabilities.

“Pregnancy is not a justification for excluding women from jobs that they are qualified to perform, and it cannot be a basis for denying employment or treating women less favorably than co-workers similar in their ability or inability to work,” said EEOC Chair Jacqueline A. Berrien. “Despite much progress, we continue to see a significant number of charges alleging pregnancy discrimination, and our investigations have revealed the persistence of overt pregnancy discrimination, as well as the emergence of more subtle discriminatory practices. This guidance will aid employers, job seekers, and workers in complying with the Pregnancy Discrimination Act and Americans with Disabilities Act, and thus advance EEOC’s Strategic Enforcement Plan priority of addressing the emerging issue of the interaction between these two anti-discrimination statutes.”

Much of the analysis in the enforcement guidance is an update of longstanding EEOC policy. The guidance sets out the fundamental PDA requirements that an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; and that women affected by pregnancy, childbirth or related medical conditions must be treated the same as other persons similar in their ability or inability to work. The guidance also explains how the ADA’s definition of “disability” might apply to workers with impairments related to pregnancy.

Among other issues, the guidance discusses:

The fact that the PDA covers not only current pregnancy, but discrimination based on past pregnancy and a woman’s potential to become pregnant;
Lactation as a covered pregnancy-related medical condition;
The circumstances under which employers may have to provide light duty for pregnant workers;
Issues related to leave for pregnancy and for medical conditions related to pregnancy;
The PDA’s prohibition against requiring pregnant workers who are able to do their jobs to take leave;
The requirement that parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated men and women on the same terms;
When employers may have to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the types of accommodations that may be necessary; and
Best practices for employers to avoid unlawful discrimination against pregnant workers.

In February, 2012, the Commission held a public meeting to hear from stakeholders about issues related to pregnancy discrimination and discrimination against individuals with care giving responsibilities. The Commission Meeting record was held open for 15 days following the meeting, to facilitate public comment. The materials from that meeting, including testimony and transcripts, are available at www.eeoc.gov/eeoc/meetings/2-15-12/index.cfm.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.

You Never Know Who is Looking Over Your Shoulder

Recently there was an article about a security chief who was alleging wrongdoing against the company he worked for. He accused the company of not doing all it could do to protect client information. The accusation was that they performed only 27% of the minimum intrusion prevention, data leakage and encryption, and other security measures needed to protect its customers’ sensitive information.

The story gets more complicated…he was fired and all kinds of allegations were leveled against him as well, needless to say – what a mess.

A couple of takeaways jump out:

First: As a corporation/company, are you doing all that you can do to protect personal information of clients, customers and employees? This is a very hot topic, we read about cyber breach just about every day in the paper or hear about them in the news. It is incumbent on the management team, board and other people in positions of responsibility to make sure that appropriate measures are being taken to protect the entity against such intrusive breaches. This also speaks to the heart of D&O insurance and fiduciary duty. As a director or officer you have been charged with the overall stewardship of the organization and thus any breach of duty will fall directly on your shoulders. The type of litigation mentioned in this article is very expensive. Enough said.

Second: Understand your employment practices liability. Here the employer is being sued because of a wrongful termination claim apparently due to the employees “whistle blowing”. Again, these types of actions can get very expensive. Sometimes employment practices liability policies share the same limit with the D&O – I’m not say this is good or bad – but potential exposures must be evaluated to make sure appropriate limits are purchased.

Third: This type of lawsuit especially in a public forum can dramatically damage a company’s reputation. Imagine word getting out that the company you are counting on to protect your personal information is not doing all they should be to protect it.

To wrap this up I would ask… Have you done all that you can do as a company to protect your clients, customers and reputation against harm – from without and from within?