Region 3 Interagency Working Group Webinar on Workplace and Worker’s Rights

Region 3 Interagency Working Group Webinar on Workplace and Worker’s Rights


Welcome and thank you for standing by. At
this time all participants are in listen-only mode. During the question-and-answer session,
to ask a question, please press star and then 1. This call is being recorded. If you have
any objections you may disconnect at this point. I will now turn the meeting over to
your host, Ms. Bessie Chan. Ma’am, you may begin. Hi everyone. Good morning and thank you for
joining our Region 3 Interagency Working Group Webinar on Workplace and Workers’ Rights.
Just as a reminder for those of you on the conference line today, please be sure to also
log onto the WebEx portion of the webinar in order to view the presentation that accompanies
today’s webinar. The link was included in the confirmation e-mail that you received. So the mission of the White House Initiative
on Asian-Americans and Pacific Islanders is to improve the quality of life and opportunities
for Asian-Americans and Pacific Islanders. As part of this mission, we are working with
a regional interagency working group, an entity comprised of more than 220 members from federal
agencies and sub-agencies across the country to bring you in-person and online events and
trainings to raise awareness of and promote participation in federal programs, resources
and services where our community is underserved. Today’s webinar is hosted in collaboration
with the US Department of Labor Occupational Safety and Health Administration, the US Department
of Labor Wage and Hour Division and the US Equal Employment Opportunity Commission. First, we will hear from Ms. Isabel DeOliveira,
Philadelphia Regional Office’s Compliance Assistance Specialist on OSHA’s efforts
to ensure safe and healthy workplaces, information on employee rights and employee resources
and compliance. Isabel? Thank you. Hello and welcome and thank you
for taking the time to briefly learn more about workers’ rights and compliance under
the OSHA Act. The Occupational Safety and Health Act covers most private sector employers
and their workers, federal workplaces and their workers in the 50 states and certain
territories and jurisdictions. In the last four decades, OSHA and our state
partners, with the efforts of many, many employers, safety and health professionals, unions and
(unintelligible), we’ve had a dramatic effect on workplace safety and health. Since 1970, workplace fatalities have been
reduced by more than 65% and occupational injury and illness rates have declined by
67%. And at the same time, US employment has almost doubled. We can be proud that workers’ deaths in
the United States are down, on average from about 38 workers’ deaths a day in 1970 to
about 12 a day in 2012. But that really is 12 too many. Workers’ injuries and illnesses are down
from 10.9 incidence per 100 workers in 1972 to 3.4 incidence per 100 workers in 2012.
And what this means is that there is still much more work for all of us to do. It has been said that Latino workers often
do the most dangerous work with the least amount of protection but I believe that any
vulnerable worker can be exploited if their employer does not provide a safe and healthy
workplace and implement an effective safety and health programs because of language barriers,
literacy issues, lack of training and many other challenges. Immigrant workers are often hard to reach
and are also at the greatest risk for injury, illness and death from the job. These vulnerable
workers are the least likely to pick up for their rights. And their rights are that all
workers in the United States are entitled to a safe and healthy workplace. They are to work in a place free from recognized
hazards. With few exceptions, employers must provide the proper personal protective equipment
required to do the job and train workers to use it. They have the right to talk to or
complain to OSHA without fear of discrimination or retaliation. And all personal employee
information is confidential during any complaint (unintelligible) as well as during inspection
interviews. Other OSHA rights that we provide employees
is the right to ask OSHA for an inspection, receive information and training about their
hazards and get copies of test results done in workplaces. As I said, all training must be provided to
employees or workers must be trained on how to properly perform their work and it must
be provided in a language and a manner in which they understand, whether that be pictures
or pictograms, sign language or a foreign language such as Mandarin or Tagalog. All workers are to be trained in the proper
use of the chemicals in their workplace, how to gather the information from the label and
be, again, provided and trained on proper personal protected equipment. All workplaces must also have a process on
how to report any unsafe conditions, whether that be through the temporary staffing agency
that placed them or their host employer. Also, some training is required annually,
such as (unintelligible) training. Also, training is required when a process or a procedure
changes with regards – examples being chemical substitutions or when emergency exit routes
are blocked by excessive grass growth, no blockage or building construction. This is a bit of information on how to contact
OSHA from the Employee Information page. It has information on how to properly file a
complaint, how to report any emergency with our emergency number and our contact information
being 1-800-321-OSHA or 1-800-321-6742. On these pages, you’ll learn more information
about our regional and area offices and how their business hours are 8:00 am to 4:30 pm
in the local standard time, how we have language and translation services available during
business hours if you feel more comfortable calling in a language that is not English,
and resources on how to contact a compliance assistance specialist or a labor liaison to
help navigate the OSHA’s organizational structure, Internet Web pages, further explain
the complaint process and assist them with their safety and health programs. This is a screenshot of our OSHA Web page,
osha.gov, and you’ll see that accessing our OSHA Web page through mobile devices and
tablets has now become a little bit more friendly. So it does not matter if you don’t have
a laptop or a computer at home or at work. In the top, you’ll see that we have recently
updated our reporting regulation across the United States. Under 1904.39, each and every
workplace-related fatality, including heart attacks, needs to be reported to OSHA within
eight hours. All work-related in-patient hospitalizations, amputations or losses of an eye must be reported
to OSHA within 24 hours. All OSHA regulations apply to employers. But if employees do not
believe that their employer is reporting it, they too can make the notification. As I had said earlier, OSHA covers most private
sector employers and workers in the United States, the District of Columbia and our territories.
But we do have 22 state plan states. And these, highlighted in blue, are state-run safety
and health programs and they must be at least as effective as the federal OSHA programs. If you feel more comfortable, you certainly
can reach out to the federal OSHA or if you are in a state with an OSHA-approved state
program, you may be subjected to different or additional requirements and have different
resources available to you by contacting that state plan directly. Here is Help for Employers. This is our new
Help for Employers page which is a portal to help employers find relevant information
on the OSHA Web site. Some of the information on this page is what are my responsibilities
as an employer? How do I identify and control safety and health hazards in my business?
How do I comply with OSHA rules and regulations? I highly recommend starting with the quick
start which is in the lower right corner. It will allow for employers and employees
to have a better awareness of what the hazards in their workplace will be and provide — especially
small and new businesses — some of the compliance assistance resources that are available to
all workplaces. By following the step-to-step guide, your
users can see an initial set of OSHA’s compliance assistance material that they can use to improve
their safety and health program in their workplace. The compliance assistance quick start for
general industry covers factories, warehouses, retail, grocery store and restaurants just
to be a few examples. We also have a quick start for construction, healthcare and Hispanic
outreach. If employers are asking for more help, they
could certainly use the on-site consultation service. In fiscal year 2013, nearly 27,000
site visits were done through the 50 states’ and most territories’ consultation program. The service is free and confidential. And
it’s separate from enforcement and do not result in penalties or citations. Consultants
will work with employers to identify workplace hazards provided based on compliance and our
standard. Other small business resources can be found
on the Small Business page. Examples are Safety Pays, uses a company’s profit margin, the
average cost of an injury or illness and projects the amount of sales a company would need to
generate to cover these costs. One of OSHA’s most popular downloaded publications
is the Small Business Handbook. And this handbook assists employees and small business employers
to comply with OSHA’s requirements by featuring a lot of self-inspection checklists. This is an example of just some of OSHA’s
language resources — Mandarin Chinese, Korean, Polish, Vietnamese and Spanish. And how would
an employee make a complaint? In accordance with Chapter 9 of the Field Operations Manual,
there are two types of complaint — formal and non-formal. Formal complaints are made by current employees
or a representative of that employee. And it must meet all of the requirements. That’s
it. Asserting that there is an unsafe working condition exposing employees to a potential
physical or health hazard in the workplace, be in writing, submitted on any paper, mail
or fax, and it could even be written in a foreign language. It must be signed by a current employee or
their representative. We ask that it also provides contact information for any follow-up
questions that the OSHA area office may have. Formal complaints typically and may result
in an inspection in on-site of the facility that the complaint is referencing. Non-formal complaints will likely result in
an inquiry, a telephone call and a faxed letter. All electronic complaints submitted via OSHA’s
public Web page are considered non-formal. And non-formal complaints are complaints that
do not meet the requirements of the formal complaints. For confidentiality, OSHA never asks about
immigration status or country of origin for employees’ or employers’ side. Employees
can also designate their representative. A representative could be a family member,
an authorized bargaining unit, an attorney acting on behalf of that employee, your consulate,
your embassy, immunity-based organizations or other faith-based organizations such as
synagogues or temples, anyone that the employee may designate. Other information that we would ask about
the employer would be the address and telephone number of the facility if it is a structure
or a transient work site, like a construction site that will be finished up at the end of
the week. Other information that would be very relevant
and important to put on the complaint is what work is unsafe? Is it that the ladder is not
being provided? Is the ladder not long enough? Is the ladder broken or unstable? Were you
not trained on how to properly construct the scaffolding? Was training not in a manner
or a language that was understood? Have there been any accidents with a piece of equipment?
Has someone else gotten hurt? Is the condition continuing or did it happen a year ago because,
unfortunately, we do have a six-month time limit? So thank you very much for listening to the
OSHA information. Twelve people is too many per se. We want to help. We know employers
sometimes just need help. So we ask that you contact OSHA at 1-800-321-6742 or visit the
OSHA page at osha.gov. Now, we will hear from Jack Rudzki, OSHA’s
Philadelphia Regional Supervisory Investigator about the various whistleblower statutes that
have been delegated to OSHA which is considered – what is considered protected activity in
order to be afforded protection of the act and how to file a complaint. Thank you Isabel. My name is Jack Rudzki and
I’m representing OSHA’s Whistleblower Protection Program. As Isabel mentioned earlier,
employees have a right to raise workplace safety and health concerns and they should
not be retaliated against for doing so. However, raising issues which we refer to
as whistleblowing at times does result in employer reprisals. Our office exists in order
to investigate these allegations of retaliation and to remedy the wrongs when we find that
they in fact have occurred. Our goal is to create an environment in workplaces
where employees can raise concerns without fear of retribution for doing so. While we
work for the Occupational Safety and Health Administration, investigating complaints of
workplace safety and health retaliation claims is only one example of a type of whistleblower
work that we in fact do. As we’ll note from this slide, OSHA’s
Whistleblower Protection Program enforces various whistleblower provisions of more than
20 whistleblower statutes — that number now actually stands at 23 — that protects employees
who report violations of not only occupational safety and health concerns but also of certain
public safety issues. Our scope most recently has extended to include
protecting employees who raise issues regarding health insurance reform and various financial
and securities laws and reforms. Whistleblower rights afforded by these acts
include but are not limited to worker participation in safety and health activities, reporting
work-related injury, illness or fatality, or reporting an actual or reasonably believed
violation of the various statutes. The foundation of the Whistleblower Protection
Program’s work is to enforce the provisions of Section 11(c) of the Occupational Safety
and Health Act. Section 11(c) is the specific section that enforces protection for employees
to raise concerns about the health and safety conditions of their workplace and to have
those concerns addressed without fear of reprisal. The other 22 acts we’d cover fall into several
broad categories as follows. First, we have several acts that address public
transportation safety issues. Those include the Surface Transportation Assistance Act
which protects drivers and other employees that operate commercial motor vehicles regarding
their allegations of safe operation of commercial motor vehicles. We also enforce the whistleblower provisions
of the Wendell H. Ford Aviation Investment and Reform Act which we refer to as AIR21.
That protects employees of air carriers, specifically think of pilots, flight attendants or mechanics
who raise safety and security issues. We also enforce the Pipeline Safety Improvement
Act, the Federal Railroad Safety Act, the National Transit Systems Security Act and
the International Safe Container Act. The Federal Railroad Safety Act protects employees
of railroads who raise safety or security concerns. And it differs from the National
Transportation Systems Security Act which protects employees of public transportation
entities who raise not only public transportation safety issues but also who raise issues of
abuse of federal grants or other public funds appropriated for public transportation – in
transportation. The International Safe Container Act contains
employee protection provisions for employees who work with intermodal shipping containers.
An example of these types of protections might be a driver who is being forced to work over
the hours of service regulations and who raises issue about doing that or refuses to do that
and who in turn is subject to some retaliatory action such as termination. Next, we are responsible for various acts
to deal with employees who raise environmental concerns. The purposes of the acts are fairly
self-explanatory in the names of the acts. We enforce the Safe Drinking Water Act and
the Federal Water Pollution Control Act. We also enforce the whistleblower provisions
of the Toxic Substances Control Act. That act protects employees from reporting violations
relating to industrial chemicals produced or imported into the United States. Also on the list are the Solid Waste Disposal
Act, the Clean Air Act and the Comprehensive Environmental Response, Compensation and Liability
Act. CERCLA as it’s known, it protects employees who report accidents, spills or emergency
releases of pollutants at super-fund sites. It also protects employees who raise issues
regarding the cleanup of uncontrolled or abandoned waste. Lastly on this list you’ll find the Asbestos
Hazardous Emergency Response Act which protects employees who report violations of asbestos
in public or non-profit private elementary and secondary schools. We also have afforded protections to employees
in the nuclear field. The Energy Reorganization Act protects employees in the nuclear industry
who raise concerns about nuclear safety. Specifically, these are employees at nuclear power generation
facilities or work in the medical field, working with nuclear products. We also protect – have maritime safety protections
under the Seaman’s Protection Act which protects seamen from retaliation for reporting
to the Coast Guard or other agencies violations of maritime safety law or regulations. We’re also involved in providing protections
for whistleblowers in consumer safety issues. This includes the Consumer Product Safety
Improvement Act, the Food Safety Modernization Act and, lastly, the Moving Ahead for Progress
in the 21st Century Act. The Consumer Product Safety Improvement Act
and Food Safety Modernization Act are fairly self-explanatory. The MAP21 Act protects employees
of motor vehicle manufacturers, parts suppliers and dealerships who raise issues of motor
vehicle defects, non-compliance or violations of any regulations under the jurisdiction
of the National Highway Transportation Safety Administration. We’re also involved in the enforcement of
whistleblower provisions for several non-safety-related acts. These include acts that involve financial
integrity such as the Sarbanes-Oxley Act, the Dodd-Frank Act and the Consumer Financial
Protection Act. The Sarbanes-Oxley Act specifically protects
employees of publicly traded companies, their contractors and subcontractors who raise issue
of various types of fraud or violations of SEC rules and regulations. The Dodd-Frank Act amended the Sarbanes-Oxley
Act to include coverage of employees of nationally recognized statistical rating organizations,
as well as their contractors and subcontractors. An example of such companies would be Standard
& Poor’s, Moody’s and Fitch group. The Consumer Financial Protection Act provides
employees who raise issues related to consumer financial products or services for violations
of law subject to the jurisdiction of the Bureau of Consumer Financial Protection. And lastly, we are responsible for enforcing
the whistleblower provisions of the Affordable Care Act or better known as ObamaCare. The
whistleblower provisions under the Affordable Care Act that we enforce protect employees
from retaliation for reporting violations of Title I of the Act regarding an individual’s
receipt of health insurance subsidies, the denial of coverage based on preexisting conditions
or an insurer’s failure to rebate a portion of an excess premium. Now for some of the details about the process
of whistleblower investigation’s work, each act has unique coverage details, filing periods
which range from 30 to 180 days, various burdens of proof, appeal rights and other nuances. We encourage you to visit the Web site to
learn more about the details of each of these. I would like to point out that regarding the
filing periods for each of these acts, the statute of limitations starts when the employee
becomes aware that they are going to be subject to an adverse action. For example, if an employee receives a notice
of termination to occur in two weeks, the filing period or the clock starting actually
starts on the date that the notice is received, not the date that the termination becomes
effective. This is particularly important for those acts which have the relatively short
filing period of 30 days such as the Occupational Safety and Health Act. What is protected activity? This was that
you’re saying now is not all inclusive but it involves activity such as making complaints
to government agencies such as filing complaints with OSHA, the Environmental Protection Agency
or its state equivalents, various health departments, the Federal Aviation Administration or the
Department of Transportation, the Nuclear Regulatory Commission or the Securities and
Exchange Commission. Also included are cooperating with government
investigations. Also making complaints directly to employers is protected under the various
acts. And lastly, testifying before Congress is also considered a protected activity. What are the types of actions that may prompt
an employee to follow whistleblower complaint? Most of the acts read that the employer may
not discharge or otherwise discriminate against an employee for engaging in protected activity.
These are just some of the examples that are considered to be adverse actions. I’d like to point out that a recent Supreme
Court decision has changed the way that we look at these adverse actions to include any
act that would discourage a like-situated employee from raising these concerns to their
employer. If OSHA investigates and evidence establishes
that the employee was in fact retaliated against, the agency can order remedies to include these
types of remedies. Reinstatement, back pay, sanitizing personnel records — by sanitizing
personnel records we mean removing the adverse actions from the file so that may not follow
the employee when they go to other employers — (postings), other compensatory damages,
and punitive damages in only certain circumstances under certain acts. Also, several of the acts
allow for reasonable attorney’s fees in certain circumstances. How can an employee file complaints? We accept
complaints in any form. Complaints can be filed by telephone at the 1-800-321-OSHA number
that Isabel had mentioned earlier or by calling any OSHA area or regional office. Complaints can also be made in person at any
OSHA area or regional office. We also accept mail and fax or e-mail at any OSHA area or
regional office. And we also have the online whistleblower complaint forum that a complaint
can actually be filed online at the site that’s indicated in this slide. We invite you to
contact anyone in the Whistleblower Protection Program with any questions that you may have.
Thank you. Now we will hear from Mr. James Cain, Philadelphia
District Director for the Wage and Hour Division who will speak about the labor laws that Wage
and Hour Division enforces, how to file a complaint with the Wage and Hour Division,
and what information will be helpful or should be available when filing a complaint. James Cain: Thanks Jack. Good morning there
buddy. The Wage and Hour Division has the enforcement authority for several different
acts and we cover most of the workers. It’s not quite all but most of the workers in the
US, as you can see, over seven million businesses and over 135 million workers. The employees are entitled to protection and
laws regardless of their immigration status. When we receive a complaint or if we’re
doing an investigation, we don’t actually even inquire about somebody’s status. And
it makes no difference to us when we enforce the law or when we compute back wages or other
remedies under the particular act that we’re enforcing. We are located throughout the US and Puerto
Rico. One of the things that we like to point out is our language capability in the Wage
and Hour Division, as you can see, the majority of our investigators speak a language in addition
to English. As a matter of fact, here in my district office
in Philadelphia, we’re able to speak a total of nine different languages. You know, in
addition, to each individual that is able to do that, you know, we use investigators
– you know, lend them to other offices when needed, you know, for their language ability. We also have a language alliance that we’re
able to utilize to cover just about any other language that we’re not able to handle,
you know, through an investigator. You know – and, again, as you can see, the predominant
second language that we have is Spanish. As I said, we enforce a number of different
laws. The most common ones are listed here. The Fair Labor Standards Act, which is the
federal law, deals with minimum wage, overtime and child labor standards. The Family Medical
Leave Act which allows people to take a time off for their own medical needs or the medical
needs of their immediate family member. The Davis-Bacon and Related Acts which is
government contracts for construction. The Service Contract Act which is government contracts
for services to the federal government. The Employee Polygraph Protection Act; Wage Garnishment
Law; and temporary worker programs; in addition, there’s one that is listed here that we
actually spend a lot of time doing as well is the Migrant and Seasonal Worker Protection
Act. The ways, in which our laws are able to help
individuals, as I said, the Fair Labor Standards Act covers the minimum wages and overtime
and sets the standards for child labor. Child labor under the federal laws, basically, what
we’re talking about is individuals under the age of 18. The Family Medical Leave Act, again, allows
job protections for people taking a time off for the birth of a child or caring for sick
family members or for their own serious health condition. The Migrant and Seasonal Worker Protection
Act allows such standards for farm workers regarding housing, transportation and wages
as well. The next one we’d talk about is for the government contracts, the Davis-Bacon
and Service Contract Acts that (unintelligible) wages for workers and also require fringe
benefit payments as necessary. And then the last one, again, was standards
for hiring and paying workers temporarily in the US. There’s a number of different
pieces that we enforce the wage portions of, so workers that are here on H1B, H2A, H2B
and some others. They’re protected – well they have certain protections regarding their
wages and their working conditions and that’s, of course, by us. How do we actually go about achieving compliance
with the employers? You know, we spend most of our time actually doing enforcement activities,
doing investigations. There are two different types of investigations that we do. We do
what we call directed investigations or investigations based on complaints. Directed investigations — and I’ll get
into it in a little bit as well — that’s where we pick out place ourselves. It’s
not based on a complaint but it’s typically based on a particular industry or a geographical
location where we go out and we do the investigations. We also achieve compliance through outreach
that’s both – you know, we’ll do presentations to workers and employers. We do compliance
through partnerships. One of the things — when I was looking through
this, this morning — that I thought was kind of an interesting note to show how well partnerships
work, is that we have partnerships with several of the consulates that service the Philadelphia
area. And last week we had a worker who was due
back wages, who came to our office to pick up the back-wage check. But unfortunately,
he didn’t have a form of ID with him and that’s, you know, obviously something that
we would require just to make sure that the money, you know, is actually getting disbursed
to the correct individual. So what we worked out was that he was able
to actually go to the Mexican consulate to work out with them, to be able to get a form
of ID, to come back and get his back-wage check. And then, also, the use of media to achieve
compliance. There are times that we do certain case activities either, you know, if it was
part of a directed program or a significant case, we’ll often do a press release to
get the information out, you know, to increase compliance in an industry rather than just
with a particular employer. As I said, we do have a directed program.
Directed programs vary. You know, from (unintelligible) district office to district office, there
are three different levels where we do directed programs. Sometimes the national office will
do a program that – you know, throughout the nation (unintelligible) particular district
offices to participate. There are also regional and local initiatives. And this, again, is
where we, you know, pick out places that we know that we find issues with. For example, again, here in Philadelphia,
we have a local initiative dealing with temporary help companies. And that’s because what
we have found over the last several years is a high violation rate in that industry
where they typically will employ workers and not only do they not pay them overtime but
they also often pay them rates under the minimum wage. And we found that to be a substantial
problem. We wanted to dedicate, you know, a fair amount of our resources to impact that
industry and get it cleaned up. The directed programs are, you know, typically
are directed to places where we have vulnerable workers. You know, what are vulnerable workers?
They’re basically – it’s people that are in positions of where it’s difficult for
them to, you know, make a complaint against the employer, whether it’s, you know, even
with us or just even directly saying something to the employer, typically for fear of a reprisal
such as job loss. Here’s a list of the number of industries where we typically find vulnerable
workers. I would certainly add temporary help industry to this list as well as these. So moving onto complaints, where do complaints
come from? They actually come from a number of different sources, the most common of which
is actually employees. We accept complaints from both current and former employees for
the most cases. Like I said, we enforce a number of different laws, so we can have a
little bit of variation from law to law, but typically we do accept complaints for both
former and present employees. It can be from third parties, you know, such
as a parent or guardian. Usually, what we’re talking about there is, you know, like a child
labor violation. From school officials, again, that often deals with child labor violations.
Other employers, we don’t give a lot and we certainly screen to make sure that’s
not something where somebody is just, you know, trying to cause trouble with somebody
else but we do accept complaints from other employers. Certainly, from advocacy groups, typically
what we’ll get is, you know, somebody who goes to that group for help and that group
is aware, you know, of the way (unintelligible) of what we’re able to do, so they will refer
the individual to us to be able to help them out and, certainly, other agencies as well. So how are complaints accepted? We accept
complaints, really, in any form. Here it says that they’re submitted by a person or by
phone. But we do also accept a written complaint, you know, if something was e-mailed to us
or mailed to us that, you know, we certainly take that information and accept a complaint
that way as well. One thing that we like to point out is that
when we deal with complaints, again, for the vast majority of the laws that we enforce,
the complaints are kept confidential. That means that when we go out and we do an investigation
based on a complaint, and not only do we not tell the employer, you know, who made the
complaint, we won’t even say that we’re there based on a complaint, because as I stated
earlier, there are different reasons why we do investigations, you know, with our directed
programs, so we won’t even say that we’re actually there because of a complaint. And,
as I said, there’s no fee to file a complaint. Just submit the information to us and we’ll
work on it. So what is needed during a complaint (unintelligible)
is the employee’s name, their contact information and then information about the employer. We
do accept anonymous complaints. You know, we’ll do our best to try to get the person,
you know, to give us their name and contact information, again, by, you know, assuring
them about our confidentiality. But it’s particularly important to be able
to follow up a lot of times with the complainant, you know, and to be able to keep them updated
of our progress in conducting an investigation. But as I said, you know, if it really comes
down to it, we will accept an anonymous complaint. Other information that’s taken, you know,
during the complaint process is the type of work that the employee does, you know, the
circumstances that surround the alleged violation, and then the last thing in this list is there
are copies of pay stubs or personal hours if available. Certainly, it’s not required, you know,
as part of the complaint that they submit this. But, again, it helps us in actually
going through and reviewing a complaint, to help make a determination whether or not,
you know, there’s like a high likelihood of a violation. To quickly go through the investigation process
for Wage and Hour, typically, what we do is we’ll go in. We’ll hold an initial conference
with the employer, explain the law that we’re – what we’re enforcing and, again, talk
about the process of the investigation with them through the establishment, so we can
have a good understanding of how the business operates. The next phase is fact-finding. That’s where
they interview employees and go through a review typically of the time in payroll records
for the company. When we do employee interviews, we do keep the interview information confidential. While the employer may be aware, you know,
that we’re interviewing a specific employee, if we’re doing it at their establishment,
we don’t really see anything that can be traced back to that individual as to what
they said. And we also do interviews off-site as well. After all the fact-finding is completed, we
can make a determination of whether or not there were any violations. If there were violations,
we’ll determine what are the remedies. Typically, what we’re talking about there
is back wages, such as with the Fair Labor Standards Act, if we found, you know, minimum
wage and/or overtime violation, we would actually compute the back wages. And, typically, we
go back for a period of two years. Once all that determination is made, then
we sit down with the employer. And we have a final conference to explain to them the
violations that we found. We first get their agreement to comply in the future because
that’s actually our number one goal in this, is to get them to comply in the future. As
we get their agreement to comply, then we’ll discuss, you know, any back wages that are
due. This is the information on how to contact
us. The number that’s up there, the 866-4US-WAGE, it’s a toll-free number. That goes to our
national office. If somebody calls that number, they’ll give the basic information (unintelligible)
answering the phone. And if they make a determination, I guess it is an issue that’s handled by
Wage and Hour Division. Typically, they’ll refer that individual back over, you know,
to the appropriate district office or if it’s something that’s handled by another agency,
they’ll typically make that referral as well. So that concludes what I have to cover with
the Wage and Hour Division today. Lastly, we will hear from Ms. Karen McDonough, the
Philadelphia District Office Enforcement Manager for the United States Equal Employment Opportunity
Commission also known as EEOC, on the employment discrimination laws that EEOC enforces, how
to file a charge with the EEOC and the timeframes for filing a charge. All right. Thanks James. Good morning everyone.
How are you? As James just highlighted, I’m going to be talking about the laws enforced
by the EEOC. I can tell you right off, you know, right off from the get-go here that
we only have six to talk about unlike OSHA that mentioned 23. I’m not sure – I didn’t get the total
on Wage and Hour but it’s way more than EEOC has. But I can tell you that the ones
that we’re doing for — which I’ll talk about in a minute — are very important and
can be complex and very helpful. I’m sure you’re going to find in a second. We basically – our laws cover private employers,
state and local governments, as well as unions. The laws that I’m going to speak about today
are Title VII of the of Civil Rights Act of 1964, otherwise known as Title VII, and specific
with – I guess with respect to what I’m going to talk about is mainly going to be
employment discrimination. And Title VII is prohibiting employment discrimination because
of your race, your color, your sex, your national origin. Reprisal, we’ve heard that from all the
other agencies today — reprisal for filing a charge or participating in any kind of EEOC
proceedings. And also prohibiting harassment; I’ll talk a little bit about that. Harassment
pertains to all the statutes that are mentioned there. But, with respect to Title VII, again,
it’s your race, color, religion, sex and national origin. The Age Discrimination and Employment Act
of 1967 covers those that are 40 and over. That’s the protected age group. And we just
want to make sure individuals within that age group, you know, are not being treated
less favorably than other employees. So I’ll talk a little bit about that in a moment. The Equal Pay Act – it basically protects
employees with respect to gender differences in wages. So it’s something like you were
talking about, James, with respect to Wage and Hour, but it prohibits discrimination
in the payment of wages to men or women performing substantially equal work under similar working
conditions in the same establishment. It’s a little different. Let me see what else we have here. The ADA,
you can’t discriminate against anyone with respect to their disability. We’ve heard
the OSHA regulations already today mentioned with respect to accommodation issues. And
there’s a little overlap there but it’s going to be different. And I’ll talk about
that in a moment. You know – but underneath our law, this is
different across many several agencies. A person is disabled if they have a physical
or a mental impairment that substantially limits one or more of the major life activities
of an individual. And this definition has changed; it has, you know, within the last
ten years. It also covers individuals who have a record
of such an impairment, and that’s important, and also those being regarded as having the
impairment even if they don’t. So the Disabilities Act of 1990, you know, kind of pertains to
that and covers those individuals. GINA or the Genetic Information Nondiscrimination
Act of 2009 is a fairly new law that we enforce to the commission. So that’s really getting
into genetic tests that are out there and using any of that genetic information. You
know, you fill out a form. Maybe you’re hired in a company where they’re self-insured.
You know, does the employer get a hold of that information? Perhaps there’s a background test that’s
being done and it’s not just, you know, your criminal activity but they want to do
a full drug scan and find out all the medications you’re on, and that information can lead
to learning things about that individual and the background history as well as their family. So GINA prohibits the use of genetic information
to discriminate against individuals and employment. There’s no exceptions to it. It restricts
the delivered acquisition of genetic information by employers and other entities. It requires
that covered entities keep genetic information confidential. They can’t mix – you know,
they have to have separate medical files from personnel files. We’ll make sure we look
at that and try to make sure that that practice is ongoing. And it prohibits, again, retaliation or reprisal.
We’ve kind of talked about this even with the whistleblowing and with respect to Wage
and Hour as well. And the Rehabilitation Act is just kind of an act that absorbs into the
other ones. And I’ll talk a little bit about that on the next slide. Thanks. The laws enforced by EEOC protects you from
unfair treatment and we’ve heard about that throughout today — different (unintelligible)
treatment, harassment — and like I said, I went over the statutes and it could be anything
from the race, the color, the religion, the sex, the national origin, age, disability,
genetic information, it has to be one of those protected characteristics or else we won’t
be able to cover you. So you have to fall underneath one of those statutes. Denial of a reasonable accommodation workplace,
I already touched on that, and that could mean not only because of disability but also
because of religious beliefs that you have. And retaliation, again, I talked about that,
because you complain about job discrimination or assisting with the job discrimination investigation
or even a lawsuit. Discrimination can occur in many different
scenarios. They can occur at the hiring, the promotion stage, the discharge stage. Wages,
I just mentioned the Equal Pay Act, when you get demoted, harassment, different terms and
conditions. You know, are they treating you different
from someone else who’s performing the same job functions, job assignments, benefits,
leaves, training? And again, we had heard the training with OSHA earlier as well. And
a failure to accommodate, I already mentioned these. Who is protected from discrimination? An employee
– and I kind of mentioned that we cover, you know, private employers, state and local governments
and unions. So an employee who works for any of those three would be covered. It could
be a temporary employee. It could be a job applicant. And it could also be a former employee. Also, an important – James had mentioned,
and (Bessie) as well, these vulnerable workers and we also cover undocumented workers as
well. So – and I’ll talk about that in a moment because that’s one of the commission’s
priorities under a strategic enforcement plan, is to make sure that we’re looking at these
types of cases and the impact on marginalized and vulnerable workers. Employers – employers’ coverage underneath
these laws. Title VII would be you have to have 15 employees; for the Age Discrimination
and Employment Act, it’s 20; and most employers are covered by the Equal Pay Act which makes
it, again, illegally to pay different wages to men and women if they perform substantially
equal work in the same workplace. There are state and local – I just want to
say there are state and local anti-discrimination laws which may actually cover a smaller number
of employees. And I’ll touch base on that in a second. And if you go to www.eeoc.gov,
it has all that information and all the links to the state laws as well for coverage. We do have strict time deadlines as both of
the other agencies had mentioned as well to file charges with the EEOC. So you have to
file within 180 days from the date of the alleged violation. Again, it’s similar to
OSHA with respect to the date that you were put on notice. And this can be extended to
300 if your state has what they call a fair employment agency there. They’re called FEPAs. And what is that?
They’re agencies with the state or the city and we have a relationship, a work-sharing
agreement with them. And that 180 days, if there are state laws or city laws, will be
extended to 300 as long as you have those fair employment agencies. You may be in a state that doesn’t have
them, so you have to kind of work within the timeframe of 180 days until you get, you know,
advice, otherwise. And our Web site has that information on it. You can go directly to court underneath the
Equal Pay Act. A lot of times, charges are filed underneath Title VII for gender discrimination,
as well as the Equal Pay Act. And in order to file in court under Title VII, you have
to come through our agency first. So we’re very mindful that you only have
two years underneath the Equal Pay Act to file in court. So when those cases come in,
we do try to track them to make sure that we get them pushed through so that, you know,
if you want to file underneath Title VII and the Equal Pay Act, that you’re not going
to be untimely with that with respect to filing in court. Okay. Again, there’s different deadlines
for state and local laws. And, please, consult our Web site for those as well. How to file a charge? You can come in person
to the EEOC, to the district offices, to the local offices. If you look at our Web site,
it has the complete listing of all our offices. We will take your charge in person. You can
also send it in. You can complete it online. You can send it into the address that’s
listed on our Web site or you can actually print it out and take it into our office.
We do take charges. Each office is a little different. Some offices
have appointments. Other ones – it’s kind of walk-in and we take as many as we can during
the day. So you have to check the Web site of the office and it will have that specific
information with what the hours are for taking a charge. Information for how to do it by mail or fax
is online. You just have to make sure your name, your address, your telephone number
is on what they call an intake questionnaire and, like I said, that intake questionnaire
can be printed online as well. And if you – in the case that you want to
file a charge, we will automatically document that. If you indicate that and it’s signed,
and you have the allegations on that questionnaire, and we will inform the employer within ten
days that you’ve come to the commission to file a charge. You can also check off that you just wanted
counseling and then we don’t inform the employer. We wait until we speak with you
and counsel you before going forward with the charges of discrimination. Some of the things on the intake questionnaire
are, again, a short description of the events you believe were discriminatory. I kind of
mentioned these earlier. Were you fired? Were you demoted? Why aren’t you promoted? Were
you harassed? You know, when the action took place is important
because it could be 180 days from that date or 300 depending on your state, and why you
believe you’re discriminated against. Most importantly, we had a lot of kickback for
people who (unintelligible) sign them, so it’s one of the things that we just tell
people to be mindful of. We protect federal – we don’t protect federal
employees. There is another system for application for federal jobs and protections and that’s
not part of what our agency enforces. However, we do have a hearing unit within the EEOC
that, you know, after the individual has exhausted the complaint procedures in the federal sector
through their agency, then the individual can – then it can be appealed up to our EEO
judges that we have in our office. They fall underneath the directors but it’s
a separate system that I’m not really speaking of today. But there’s information. If you
are a federal employee, there is information about that complaint process online. EEOC investigations, so again, I talked about
the copy of the employer being put on notice. A charge is sent to the employer. We do have
a mediation program in the house. Most charges depending on their assessment are sent to
try to get under the (unintelligible). So we have a team of mediators in all of our
offices. After a mediation, if it’s unsuccessful, it gets assigned to an investigator. The investigation,
we try to have it done within eight months or so. We collaborate with other federal agencies. Wage and Hour Division, we have some investigations
ongoing with them in a collaborative nature in our districts. And also, OFCCP, we will
also have investigations because they cover federal contract – individuals who are – that
have federal contractors. So that’s pretty much where I’m at. There’s
all the different – you know, aside from, you know, the investigations, real quick,
I’ll just say that, after the investigators have done collecting all the evidence, they
issue a letter of determination and that would either say whether they believe a violation
has occurred or hasn’t occurred. We conciliate cases and, in some cases, move
forward with respect to litigations. At all times, individuals can – after 180 days — excuse
me — an individual can request a right to (unintelligible) filing report themselves. That’s pretty much where I’m concluding
today. I’ve mentioned our Web site for more information about filing-a-charge process.
Our number is up there, 1-800-669-4000. We’re also (TTY) and there’s our Web site. And
now, I’m going to give you back to Bessie Chan, Adviser at the White House Initiative
for Asian Americans and Pacific Islanders. Bessie? Thank you. Thank you to our speakers for sharing
this very valuable information today. Before we get started with our Q&A, I’d like to
ask a few questions that we received from participants via e-mails. And the first one
is what if a worker has an issue that is relevant to more than one agency? This is Isabel DeOliveira from OSHA and I’ll
just let you know how OSHA would handle it. If the area officer received a complaint that
had multiple agency issues on it, we would then PDF it and then e-mail it to one of our
associate district offices or EEOC offices in the local jurisdictional area, and then
they can make their own internal determination of what to do with it and process it. We would
also probably provide a notification letter to the complainant of where we sent the letter. Okay. Thank you Isabel. And then also, are
all complaints and charges investigated? Hi, this is James Cain from the Wage and Hour
Division. For us, unfortunately, the answer is no. We don’t investigate all complaints.
First of all, we’ll go through a screening process to determine whether or not we have
a valid, what we consider a valid complaint, and that means that there’s, you know, a
high likelihood that there is a violation of the one of the laws that we enforce. But even so, we receive so many complaints,
you know, throughout the course of the year. And, unfortunately, we have a limited number
of, you know, resources and investigators actually conduct the investigations. So we
actually go through a process of determining – even if we think that there’s a violation,
whether or not we’ll actually go out and conduct an investigation. One of the things that we do, if we decide
that we’re (unintelligible) actually conduct the investigation, then certainly we would
notify, you know, the individual that we’re not going to take any further action. But,
typically, what we also do is notify them of, you know, any independent rights that
they have which they do under, you know, most of the laws that we enforce. They have private
rights of action where basically it allows them to get an attorney and pursue it on their
own behalf. Okay. Thank you. Can we please have the operator
jump onto start the Q&A? Thank you. We will now begin the question-and-answer
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question. At this time, speakers, there are no questions on queue. Okay. Well, if anyone has any questions, definitely
feel free to e-mail us after this webinar and you can contact us at [email protected]
That’s [email protected] And I just want to thank you, again, all our
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