Ever since the ADA Amendments Act got passed in January, employers and HR managers have been asking, “So, what does all this mean?” The Equal Employment Opportunity Commission has finally gotten around to giving some answers.

Last week, the EEOC laid out an explanation of employer responsibilities for following the act (knows as “ADAAA”).

• First, in a key passage, the agency summarized the intent of the act:

“The definition of disability … shall be construed broadly, to the maximum extent permitted by the terms of the ADA. The focus of an ADA case should be on whether discrimination occurred, not on whether an individual meets the definition of ‘disability.’”

Meaning: Besides broadening the circumstances under which a worker is considered disabled, the act also broadens the circumstances under which a worker can sue for disability discrimination. In other words, if a worker can show that an employer discriminated because of perceived disability — even if the worker wasn’t disabled — the worker has a case against the employer.

• The agency also put into focus some of the broader circumstances that make up a disability:

“An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered a disability.”

Here’s how that differs from earlier rules: Previously, an inability to do the physical requirements of a job wasn’t enough to qualify a worker as disabled. The individual also had to show some limitation in performing “major life activities,” such as walking, eating, etc. The EEOC’s interpretation of the new rules turns all that around to a point that a limitation in doing the specific tasks of a job could be enough to categorize someone as disabled.

The EEOC provides an example:

“Someone with a 20-pound lifting restriction that is not of short-term duration is substantially limited in lifting, and need not also show that he is unable to perform activities of daily living that require lifting in order to be considered substantially limited in lifting.”

Meaning: A long-term limitation on doing a work function is a disability.

• Short-term limits on major life activities now also fall under the definition:

“An impairment may substantially limit a major life activity even if it lasts, or is expected to last, for fewer than six months.”

Meaning: What was considered a “temporary condition” can now be considered a “disability.”

Any good news?
It’s not all bad. The regulations maintain the existing requirement that a worker must be a “qualified individual with a disability.” That means the individual “satisfies the requisite skill, experience, education and other job-related requirements … and who, with or without reasonable accommodation, can perform the essential functions of such position.”

So you still can require applicants and employees to meet essential job requirements, which, for most jobs, include regular and predictable attendance and conformance to the basic standards of performance and behavior.

And even in the case of the employee with a 20-pound lifting restriction, yes, that person may be disabled, but you still can disqualify the person because lifting is an essential part of the job and no reasonable accommodation is available.

As for the temporary part (”fewer than six months”) of the regs,  the EEOC recognizes that not all temporary conditions are disabilities:

“Temporary, non-chronic impairments of short duration . . . such as the common cold, seasonal or common influenza, a sprained joint, minor or non-chronic gastrointestinal disorders, or a broken bone that is expected to heal completely” generally are not disabilities.

The form requires affected employers to provide a count of their employees by job category, ethnicity, race and gender. Here are the types of employers that must file:

• All private employers subject to Title VII  with 100 or more employees, excluding state and local governments, primary and secondary school systems, institutions of higher learning, Indian tribes and tax-exempt private membership clubs other than labor organizations.
• All employers with fewer than 100 employees if the company is owned or affiliated with another company or there is central ownership, control or management, so that the group constitutes a single enterprise and the entire enterprise employs a total of 100 or more employees. In other words, “branches” with fewer than 100 employees are required to file if part of a larger organization that employs more than 100.
• All federal contractors (private employers), who (1) have 50 or more employees and are prime contractors or first-tier subcontractors and have a contract, subcontract or purchase order amounting to $50,000 or more; (2) serve as a depository of government funds in any amount; or (3) are financial institutions but aren’t issuing and paying agents for U.S. savings bonds and notes.

Employment figures from any pay period in July through September of the current survey year may be used.

The preferred method for completing the EEO-1 report is the EEOC’s Web-based filing system.

Click here for the filing instruction booklet; here for a sample form;  and here for the online filing procedure.

The Equal Employment Opportunity Commission just came out with a document that some are calling “How to Sue Your Employer.” Rather than cursing (and hiding) the document, employers might be better served by using its contents to avoid a lawsuit.

The document, issued this month,  is officially titled “Understanding Waivers of Discrimination Claims in Employee Severance Agreements.” It’s intended to provide guidance to employees who may receive such an agreement — and who need guidance on whether they have valid grounds for a lawsuit against an employer.

EEOC issued the document after noting an increase in age discrimination charges filed with the Commission, and what the EEOC characterized as “recent controversial Supreme Court decisions on enforcement of the Age Discrimination in Employment Act (ADEA).”

In summary, the document provides:

• guidance to terminated employees who are offered severance pay in exchange for a waiver of discrimination claims
• explains the purpose of severance agreements and releases, as well as the legal requirements for such agreements to be valid, including requirements for a valid release of age discrimination claims under the Older Workers Benefit Protection Act
• advises employees that even if they have signed a waiver releasing their employer from claims, they can still file a charge of discrimination with the EEOC without first returning their severance pay

The document even contains an “Employee Checklist,” advising employees of factors to consider when they are offered a severance agreement.

How to use it to your advantage
Rather than hiding the document, HR can consider it  a useful resource for when drawing up a severance agreement. For instance, you can find in the document a sample waiver that’s just about bulletproof against lawsuits.

Further, you can use the document to draw up a list of “don’ts” when drafting a severance agreement — what not to put in the agreement.

And consider the document a heads-up that EEOC is giving all such agreements a closer look.

Go here to see the full document.

Time-strapped managers wear several different hats over the course of a busy work day. With all of these responsibilities, it’s no wonder some tasks slide to the back burner. 

But documentation is a task that has to be a priority every single day.

Truth is, in today’s lawsuit-happy world, most court cases are won — or lost — based on the thoroughness of documentation.

Here are seven common documentation mistakes — and the fixes:

1. Not outlining company expectations. When documenting, supervisors should describe specific expectations so employees understand exactly what’s required of them. When the company’s expectations are recorded on paper, the employee knows exactly what was expected. And, if the company finds itself in court, good documentation provides evidence that backs up business decisions.
2. Failing to state specific changes employees need to make. A solid paper trail outlines the conduct that needs to change. The best documentation focuses on the behavior rather than the person. Give detailed examples, so employees understand exactly what’s not working.
3. Skipping the employee’s story. Of course, there are always two sides to a story. And good documentation records both the supervisor’s side as well as workers’ perspectives on the situation. First of all, including employees’ reactions may open up the lines of communication and solve a problem. And second, if you do end up in court, comprehensive documentation shows the judge that the manager made a good-faith effort to correct the problem.
4. Not outlining the plan. Effective documentation is a blueprint, which maps out specific goals — and how employees are going to get there. For instance, if workers need to increase productivity, good documentation lists the specific steps employees should take to meet production goals.
5. Forgetting to list possible consequences if improvements aren’t made. A solid paper trail lists the possible consequences if employees fail to make necessary improvements. For example, employees may be disciplined, demoted or terminated. One caveat: Don’t paint yourself into a corner by using absolute language — use “may” rather than “will” when listing consequences.
6. Failing to establish a time frame. When creating a time line for improvement, managers should use a realistic time period. If the documentation lists an exact time frame — such as a 30-day performance improvement plan — then it must be followed.
7. Not following up on documentation. Often overlooked, follow-up is a crucial part of documentation. Savvy managers use follow-up sessions to gauge progress, offer feedback and make further recommendations for continued improvement.

EEOC says if you want to avoid problems, tell your managers to be careful about:

• assuming that female workers’ caretaking responsibilities will interfere with their ability to succeed in a fast-paced environment
• assuming that female workers who work part-time or take advantage of flexible work arrangements are less committed to their jobs than full-time employees
• assuming that male workers do not, or should not, have significant caregiving responsibilities
• assuming that female workers prefer, or should prefer, to spend time with their families rather than time at work
• assuming that female workers who are caregivers are less capable than other workers
• assuming that pregnant workers are less reliable than other workers
• asking female applicants and employees, but not male applicants and employees, about their child care responsibilities
• making stereotypical comments about pregnant workers or female caregivers
• treating female workers without caregiving responsibilities more favorably than female caregivers
• steering women with caregiving responsibilities to less prestigious or lower-paid positions
• treating male workers with caregiving responsibilities more, or less, favorably than female workers with caregiving responsibilities
• denying male workers’ requests for leave related to caregiving responsibilities while routinely approving female workers’ requests

The instances and examples listed have shown up often in lawsuits and complaints against employers for violating the rights of family caregivers.

Those instances and other advice about how to prevent caregiver discrimination are in the EEOC document “Employer Best Practices for Workers with Caregiving Responsibilities.”

How employers respond to an Equal Employment Opportunity Commission complaint often spells the difference between a speedy, successful defense and a nightmare investigation.

A disgruntled employee goes to the EEOC and files charges of bias. Here’s how to respond:

1. Tell the whole story. Because an EEOC charge often contains just one or two paragraphs, companies tend to respond in a similar, brief way. Don’t.

Put together a comprehensive response, detailing the circumstances surrounding the employment relationship and the reasons for an adverse employment action. This is the time you cut the claim off at the knees, so don’t skimp on info.

2. Include documentation. If you have supporting documents, attach them in your response. What’s appropriate? You name it: time sheets, e-mails, performance evaluations — anything that supports your case.

3. Check and double-check your documentation. Then check it again, bringing in others to help. The documentation should be accurate and consistent. If it isn’t, a smart attorney will use glitches to show a judge that you’re not being honest.

4. Mention similar decisions. One of the best ways to demonstrate that a decision wasn’t motivated by unlawful discrimination is to point to the same actions being taken in similar situations against other employees.

For example, if you terminated a woman for misconduct and she says her termination was motivated by sex  discrimination, detail instances when you terminated men for the same misconduct.

5. Explain what your company does. Give an EEOC investigator a full picture of your business and how the employee’s behavior or conduct affected your business. For instance, if you fired someone for being late too many times, explain why punctuality is so important to your operation.

6. Let employees know only what they need to know. There’s a chance investigators will contact employees, and they should be prepared for it, without knowing all the details. A typical message to employees: “While we do not feel there is any merit to the allegations, we respect Employee X’s right to bring this charge. If you are contacted by the agency, you should cooperate and be completely honest with the investigator.”

7. Don’t delay. Putting off your response is never a good idea.

8. Contact a lawyer. It’s almost unavoidable. At the very least, you’ll want an attorney to review your response and be prepared for a legal chain of events.

9. Contact your insurer. Many employment-practices liability policies define claims to include discrimination charges. Failing to let your  insurer know about the charge could result in denial of coverage, not only for the charge but all subsequent legal claims.

10. Put all relevant documents in a “lock box.” When you receive a notice of a charge, collect and preserve all documents that could be relevant. That means you may want to let IT and other departments know that they have to suspend routine “cleaning out” procedures that could result in destruction of relevant records. If you don’t, your lawyer will have a hard time convincing a judge that the destruction of documents was all just a big, unintentional mistake.

The government’s watchdog agency got nabbed for giving some of its employees comp time instead of overtime pay for working more than 40 hours in a week.

Not only that, but a federal arbitrator in the case ruled that the violation wasn’t just some silly mistake by the EEOC. The arbitrator said the violation was “willful negligence.” In other words, the folks at EEOC knew they were circumventing the rules, and continued to do so anyway.

Officials at the EEOC have vowed to straighten up and fly right, but all of this raises a question for private-employer HR managers:

Who’s watching the people who are supposed to be watching you?

First, the numbers. At the end of the last fiscal year, the EEOC reported 95,402 claims — a jump of 15% over the previous year and the most in the agency’s 44-year history. The agency said it recovered $376 million in settlements and judgments against employers as it filed 290 new lawsuits and resolved 339 suits and 81,081 non-court claims.

The EEOC doesn’t analyze the “why” but speculation rests on three main factors:

Economic conditions. When money’s tight at home or people lose their jobs or see a threat of job loss, they’re more likely to file complaints. That means companies that go through layoffs have to make sure every step of the process is buttoned up and can withstand a lawyer’s scrutiny.

Demographic changes in the workplace. This one’s tied to layoffs, too. A lot of companies have already laid off many of their younger, low-seniority workers, and now the ax is starting to hitting older workers with more seniority. They have grounds to sue — age discrimination — and often do so when they get a pink slip.

A change in complaint procedures. Last year, the U.S. Supreme Court ruled workers don’t have to file a formal complaint with the EEOC before suing an employer for age discrimination. In the particular case, the court’s 7-2 ruling upheld the right of FedEx employees to file legal claims against the company, assisted by EEOC,  even though the employees had never filed a formal charge with the agency.

Answer: The Fifth, Sixth, and Seventh Circuit Courts of Appeals have held that the ADAAA does not apply retroactively. In general, the federal courts have determined that Congress indicated no intent that ADAAA cases in effect at the signing date would be covered by the new law.

That, of course, is good news for employers and HR managers. The ADA amendments mostly make it easier for employees to win accommodations and put a greater burden on employers to offer accommodations. Specifically, the new law says employers will have to:

• make accommodations and treat as disabled any applicant or employee who qualifies as such, without regard to mitigating measures. Previously, the Supreme Court had ruled that mitigating measures such as medications or prosthetics would take the employee out of the official category of “disabled” and exempt the employer from offering workplace accommodations.
• take into account a broader range of activities, or “functions,” that are considered when classifying a worker as disabled: performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. None of those appeared in the pre-Jan. 1, 2009, ADA regs.

The Equal Employment Opportunity Commission offers guidance on the ADA amendment in the form of a new publication, “The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities.”

On January 29, President Obama signed into law the Lilly Ledbetter Fair Pay Act, opening a new door for employees who file discrimination complaints over pay decisions. Question: Should HR do a self-audit to make sure the company has no weak spots in its pay system?

First, a quick recap of the law (see “Obama signs Ledbetter Act: What it means to HR”):

The Fair Pay Act, S. 181, alters statute of limitations for pay discrimination claims. It also overrules the U. S. Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Company, Inc. Congress believed the High Court, in Ledbetter, unduly restricted the time period for bringing pay discrimination claims. The new law will will extend the shelf life of claims employees make against their employers.

Under the new law, an unlawful employment practice occurs when:

• the discriminatory pay decision is made
• an individual becomes subject to the discriminatory pay decision, or
• an individual is affected by the discriminatory compensation decision or other practice” – meaning that the deadline for filing a claim starts anew each time an employee receives wages, benefits, or other compensation tainted by the discriminatory pay decision, and may go back as far as two years from the date a charge was filed with the Equal Employment Opportunity Commission.

Now, back to the question(s): Should you do a self-audit? If so, how should you go about doing it? And what records should be examined and retained? And for how long should they be retained?

Record Retention
Because the law is new, and there haven’t been any court cases or rulings, there is no definite answer on how long you should keep pay records. Most law firms that have done a preliminary analysis of the law say you should retain pertinent records “indefinitely.”

Outside of IRS regulations on record retention, the only real guidance you have comes out of federal contracting regulations, which  require retention of  all employment records for a minimum of two years  for larger contractors and one year for on smaller contractors — those with fewer than 150 employees. But no one is saying those limits will apply to Ledbetter complaints.

Self-audit
The first question anyone might ask are: Why should we do a self-audit? What’s the upside? Are there downsides?

Why to do one.  First, realize that there are no provisions under Ledbetter where an employer avoids penalties because of “accidental,” “unintentional” or “uncovered” violations. A violation is a violation. And if one is discovered as a result of a complaint, the employer will pay for it. So a self-audit would serve the purpose of uncovering violations that you didn’t even know existed, simply because no one ever analyzed the pay data for your employer.

How to do one.  The typical self-audit would involve examining written policies relating to pay decisions in (a) starting pay, (b) promotional pay increases and (c) merit pay increases.

Let’s say you don’t have a formal pay structure, with grades and merit increases, and that your managers have wide discretion in setting pay. That could be particularly dangerous in a Ledbetter complaint, and as a result you may want to come out of the audit with some written policies to ensure that managers’ decisions aren’t based on discriminatory factors. 

How far back to go.  Courts usually recognize the practical limitations on companies. Some law firms say if you do a an examination of your records for the last two years, that’s considered a valid audit and proof of best intentions.

The downside. Let’s say you do a self-audit and discover a problem in the way you’ve set pay scales. You’re just about obligated to go back and make things right — by, for instance, offering back pay  or backdated promotions to employees who were victimized by the problem.

Why are you obligated? Because about the worst scenario you’ll ever face in court, in case there’s a complaint, is that that you uncovered an instance of a failure to follow the law and did nothing about it. On the flip side, if you went back and did your best to fix the problem and make amends, that’s a plus for an employer facing a complaint.

And remember, except as part of consultation with legal counsel, self-audit records usually are are fair game as evidence in a court fight — for either side. That’s another reason you’ll want to right any wrongs revealed during a self-audit.