Lexology (01/30/12) Paul Monsees

The U.S. Equal Employment Opportunity Commission recently released its latest enforcement statistics and issued a draft strategic plan highlighting a particular emphasis on pursuing systemic bias cases. The statistics reflect an increase in the number of employment discrimination charges received by the EEOC to 99,947, with retaliation the most frequently asserted complaint. The EEOC filed 300 lawsuits in fiscal year 2011, an increase of more than 10% over the prior year, but reduced the number of case filings from five years ago by more than 100.

In its draft Strategic Plan for 2012-16, EEOC announced that it will emphasize pursuit of systemic discrimination, which it describes as a “pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area.” EEOC statistics indicate that 23 systemic discrimination cases were filed in FY 2011 and that nearly 600 investigations were underway. Employers should continually examine their policies and practices to ensure that there is no disproportionate impact on any protected group.

USA Today (02/03/12) Paul Davidson

The number of states that have increased or could increase the minimum wage this year has reached a six-year high. In eight states that index the minimum wage to cost-of-living increases—Arizona, Colorado, Florida, Montana, Ohio, Oregon, Vermont, and Washington—the minimum wage automatically increased in January. New York and Connecticut are considering legislation that would boost the minimum wage and index further increases to inflation, and legislation that would implement basic wage increases is under consideration in California, Delaware, Hawaii, Illinois, Massachusetts, Missouri, and New Jersey.

Greater Lansing Business Monthly (Michigan) (02/02/12) Dennis Theis

Worker misclassification can result in substantial exposure to tax liabilities. The U.S. Internal Revenue Service recently announced the Voluntary Classification Settlement Program for companies that have misclassified their employees as independent contractors or other nonemployees. This may be a good time for companies to analyze how they have classified their employees and write a check to the IRS if necessary to put to rest previous classification problems.

Behavioral control, financial control, and the relationship of employer and worker are typically the primary factors to weigh, although no one factor will determine the classification. Criteria that may indicate the individual is an employee include providing instructions on where, when, and how to do the work; mandating or providing specific tools, equipment, or assistants to be used; and providing training about how the work is to be performed. Criteria that may indicate the individual is an independent contractor include substantial financial investment in the work performed; opportunity for profit or loss on the work; and significant unreimbursed expenses.

HR.BLR.com (01/31/12) Joan S. Farrell

Over the past few years, more laws prohibiting retaliation in the workplace have been added to the books at both the state and local level. In addition, decisions by courts and regulatory agencies have broadened the scope of existing laws. Federal laws such as the Fair Labor Standards Act and the Family and Medical Leave Act prohibit retaliation by employers when a worker complains about workplace discrimination or engages in a “protected activity” like being a witness in an investigation or filing a workplace discrimination charge with the U.S. Equal Employment Opportunity Commission. Several other laws (whistleblower laws, state workers’ compensation laws, and laws governing jury service, for example) contain retaliatory prohibitions as well.

To avoid retaliation claims companies should have a written policy prohibiting retaliation; train supervisors and managers about what constitutes retaliation and how to avoid it; refrain from firing workers out of anger; and apply policies and practices consistently.

The Cook Political Report (02/02/12)

The Democratic Party has unveiled an initial list of 36 U.S. congressional districts currently held by Republicans but targeted for takeover by the Democrats. The list—promoted as “Red to Blue”—will have to be made longer for Democrats to have a legitimate chance of capturing the majority in the U.S. House of Representatives, since they will probably need to win between 35 to 45 newly created and Republican-held seats. Anticipating the need to expand the playing field, the Democratic Congressional Campaign Committee has added a list of 18 “emerging races,” most of which will inevitably be added to “Red to Blue” when candidates meet certain fundraising and/or polling benchmarks.