RSS Feed!

Archives

Archive for December, 2014

LABOR DEPARTMENT ADVISORY: TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 10-14 (issued October 17, 2014)

Saturday, December 27th, 2014

As a reminder, the following guidance issued jointly by the Labor Department’s Office of Contract Compliance Programs and the Civil Rights Center is reissued in this blog. For the complete document, go to http://wdr.doleta.gov/directives/attach/TEGL/TEGL-10-14_Acc.pdf.

TO:
AMERICAN JOB CENTERS
STATE WORKFORCE AGENCIES
STATE WORKFORCE ADMINISTRATORS
STATE WORKFORCE LIAISONS
STATE AND LOCAL WORKFORCE BOARD CHAIRS AND DIRECTORS
STATE AND LOCAL EQUAL OPPORTUNITY OFFICERS
STATE LABOR COMMISSIONERS
WORKFORCE INVESTMENT ACT SECTION 166 INDIAN AND NATIVE
AMERICAN GRANTEES
WORKFORCE INVESTMENT ACT SECTION 167 MIGRANT AND
SEASONAL FARMWORKER JOBS PROGRAM GRANTEES
SENIOR COMMUNITY SERVICE EMPLOYMENT PROGRAM GRANTEES
EMPLOYMENT AND TRAINING ADMINISTRATION REGIONAL
ADMINISTRATORS
JOB CORPS CONTRACTORS
RECIPIENTS OF DEPARTMENT OF LABOR FINANCIAL ASSISTANCE
SUB-RECIPIENTS OF DEPARTMENT OF LABOR FINANCIAL
ASSISTANCE

SUBJECT: Update on Complying with Nondiscrimination Provisions: Unemployment Status Restrictions and Possible Disparate Impact Based on Race, National Origin, Sex, and Disability

1. Purpose. The public workforce system should take proactive steps to help the unemployed and especially the long-term unemployed return to work. As outlined in the accompanying Training and Employment Notice (TEN) 12-14: Promising Practices and Resources for Addressing Long-Term Unemployment, and workforce agencies have implemented or pledged to implement specific actions, policies, and/or services for addressing the unique barriers to employment facing many of the longterm unemployed. One of these barriers, which is the subject of this Training and
Employment Guidance Letter (TEGL), is the practice among some employers to exclude unemployed and especially long-term unemployed individuals from hiring consideration.

The purpose of this TEGL is to provide information to the public workforce system and other entities (including the “covered entities” listed above) that receive federal financial assistance to operate job banks, about the practice of some employers to exclude unemployed persons from hiring consideration, and to provide tools to educate employers about the practical and legal drawbacks of this practice. This guidance is being issued by the Department of Labor’s Employment and Training Administration (ETA), in conjunction with the Civil Rights Center (CRC).

2. Background. This TEGL addresses the hiring practice of automatically excluding unemployed applicants from consideration for job vacancies. This practice is sometimes overt, such as where a job posting requires applicants to “be currently employed,” but it more often occurs when employers, flooded by job applications, use the lack of current employment or evidence of long-term unemployment as a screen to reduce the applicant pool. This practice is detrimental to the interests of both employers and applicants. Employers may be excluding applicants who possess strong skills and had a strong employment record until they lost their jobs in the economic downturn. Further, applicants, despite their qualifications, may be denied the opportunity to re-join the workforce and rebuild a productive economic life.

This TEGL provides entities in the public workforce system, listed above (and their employer customers), with tools to ensure these exclusionary policies are not at cross-purposes with the public workforce system’s efforts to promote employment opportunities for unemployed workers. This problem can be addressed by promoting job postings that are open to all applicants and otherwise encouraging open and fair access to job opportunities, training, and placement programs. This TEGL applies to all jobs available through a covered entity’s job bank.

Actions to be taken by covered entities.

a. Covered entities must provide the attached Notices to Employers (Attachments 1 and 2), which describe the drawbacks of excluding the unemployed from hiring consideration. At a minimum, covered entities must advise employers, through use of the Notices to Employers, about common misperceptions about hiring the unemployed. Employers should make clear that:

• Employment status alone does not indicate whether someone possesses the qualifications for success on the job. Particularly during difficult economic periods, there are many reasons why a person may be unemployed that are unrelated to job performance. These reasons may include, but are not limited to, an individual:

o having been in school or in a training program (including many recent high school and college graduates entering the job market);
o having to leave a job because of spousal relocation;
o having lost a job because of lack of seniority during employer downsizing;
o having lost a job because the employer eliminated an entire division or
production line, or shut down completely;
o having left employment temporarily due to illness, injury, disability, or
pregnancy; and
o having left employment to assume family care-giving responsibilities or to flee situations of domestic violence.

• The pool of the unemployed includes better-educated, more skilled, and more experienced individuals than in pre-recession years, providing employers with a wealth of viable candidates to hire. Since the peak of the last recession, approximately 45 percent of displaced workers had three years or more experience in their previous job.

• The share of the unemployed with a bachelor’s degree or higher is currently 22.4 percent, and was 20.0 percent during the peak of the last recession; and the share of the unemployed without a high school diploma has been trending downward since the peak of the last recession and is currently 14.8 percent.

• The qualifications and experience that applicants acquired through past jobs do not automatically disappear during a period of unemployment. Many of those who are unemployed for long periods of time before returning to work see their earnings bounce back eventually to their pre-unemployment levels, suggesting little loss of their skills during unemployment. Even for those jobs that require state-of-the-art knowledge, skills and/or abilities, current employment may not be an appropriate gauge for determining an applicant’s relevant experience and knowledge. Many unemployed and underemployed workers volunteer or participate in training programs to maintain proficiency in their skills.

Instead of automatically excluding all applicants who are currently unemployed, employers should assess applicants on an individual basis, such as by posing questions in interviews or using other nondiscriminatory selection procedures that are predictive of successful job performance or measure an individual’s ability to perform important aspects of the job.

b. Covered entities should conduct their activities using safeguards to prevent discrimination against individuals in protected groups because they are unemployed. Excluding individuals from hiring consideration due to their unemployment may amount to unlawful discrimination under federal civil rights laws, as discussed in Part 4 of this document.

i. Posting job announcements in Job Banks. Covered entities should establish policies and procedures to ensure that job announcements containing restrictions based on unemployment status are handled as described below.

o When an employer registers with the American Job Center (or other covered entity) to use the Job Bank, it must receive the notice that appears as Attachment 1 to this TEGL. The notice explains practical considerations that counsel against screening out unemployed workers. The notice also advises employers not to automatically exclude job seekers based on their unemployment status or any other qualification that may not be job-related and consistent with business necessity. These types of screens may have a disparate impact on protected groups and could violate federal civil rights laws if not job related and consistent with business necessity.

o Covered entities should use a system (automated or otherwise) for identifying job postings that include hiring restrictions based on an individual’s current unemployment status. This system may be the same system that entities already use to identify other discriminatory language in job postings.

o When job postings that exclude individuals based on an individual’s current unemployment status have been identified, covered entities must provide employers that have posted these vacancy announcements the notice that appears as Attachment 2 to this TEGL, which states that the employer will be given the opportunity to remove or edit the vacancy announcement. The notice and opportunity to remove or edit must be provided to the employer whether the vacancy announcement has been posted directly with the covered entity or has instead been made available in the job bank through other means.

o Any job postings containing language excluding candidates based on an individual’s current unemployment status should only remain posted when accompanied by the Notice to Job Seekers that appears as Attachment 3 to this TEGL, which explains that such exclusions may be unlawful under certain circumstances. The notice further informs job seekers that individuals without current employment are not prohibited by the American Job Center from applying for the posted position.

Covered entities that accept job applications from job seekers should continue to forward the applications of all applicants, who otherwise
meet the job qualifications, to employers despite language in vacancy announcements excluding candidates based on an individual’s current
unemployment status.

The Department recognizes that covered entities have a variety of systems in place to comply with nondiscrimination obligations, and that entities engage with employer customers in varying ways. Covered entities may elect to take steps other than those listed above that are at least equally effective to prevent the unjustified exclusion of unemployed persons, except that covered entities must provide the attached notices as discussed in this TEGL.

ii. Screening and referral using restrictions based on an individual’s current unemployment status. When screening or referring individuals for job postings, job orders, training, or other employment-related services, covered entity staff should not allow an individual’s unemployment status to impede the individual in seeking employment or participating in a training program or other services:

o Covered entity staff should refrain from screening and refusing to make job referrals because an applicant lacks current employment. Job seekers without current employment who are referred for positions where the job posting takes an individual’s current employment status into account must receive a copy of the notice to job seekers, Attachment 3 to this TEGL, along with the job announcement.
o Nothing in this TEGL prevents covered entity staff from taking into account an individual’s current unemployment status for receiving employment-related services or participating in a program designed to benefit the unemployed.
o Covered entities are also encouraged to consult the TEN 12-14: Promising Practices and Resources for Addressing Long-Term Unemployment, which contains best practices for overcoming barriers to employment for the long-term unemployed.

4. Applicable civil rights statutes, regulations, and guidance. The nondiscrimination provisions that apply to the federally-assisted workforce system prohibit intentional discrimination on the basis of race, national origin, sex, disability and other protected bases, as well as policies or practices which, though neutral on their face, have a disproportionate impact on these protected groups and cannot be justified as job related and consistent with business necessity. Although individuals without current employment are not a protected group under the applicable federal laws, certain anti-discrimination laws may be implicated when an employer disqualifies job seekers from hiring consideration because they are unemployed.

The potential impact of this practice upon members of protected groups is apparent in light of national unemployment statistics. The Department of Labor’s analysis shows that African Americans, Hispanics and individuals with certain disabilities are disproportionately unemployed and that requiring applicants to be currently employed may have a disparate impact on these groups. At the national level in 2013, for example, the unemployment rate was 6.8 percent for white men, 14.2 percent for African-American men, 12.1 percent for African-American women and 9.1 percent for Hispanics. The unemployment rate of working age individuals with certain disabilities also remains significantly higher than for those without disabilities. In 2013, the unemployment rate for individuals with certain disabilities who were age 16 to 64 was 14.7 percent, compared to 7.4 percent for individuals with no disabilities in that same age range.

The possible disparate impact of such a policy on members of protected groups is particularly evident among long-term unemployed individuals.10 African-Americans are disproportionately represented among long-term unemployed individuals, making up 24.4 percent of the long-term unemployed. Hispanic individuals make up 18.1 percent of long-term unemployed individuals. By comparison, African-American and Hispanic individuals make up 11 and 16 percent of the labor force, respectively. Additionally, of unemployed workers, 43.3 percent of African-Americans and 41.7 percent of Asian-American and Pacific Islanders, a significantly higher percentage than among Whites, have been unemployed for 27 weeks or longer.

To determine whether a particular employer has violated federal anti-discrimination statutes, an analysis of the relevant facts of the particular case and, if available, more refined data would be necessary.

a. Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., prohibits employment discrimination based on race, color, religion, sex, and national origin. See 42 U.S.C. 2000e-2. Entities within the public workforce system, such as the Nation’s State Workforce Agencies and American Job Centers, may be regarded as “employment agencies” under Title VII. Thus, if they “print or publish or cause to be printed” any job announcement that discriminates based on race, color, religion, sex, or national origin, they may be liable for violating Title VII.

Title VII also prohibits employment agencies from failing or refusing to refer an individual for employment or otherwise to discriminate against any individual based on race, color, religion, sex, or national origin. 42 U.S.C. 2000e-2(b).

b. Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, applies to all programs or activities receiving federal financial assistance, such as covered entities that receive assistance under the Workforce Investment Act and/or the Wagner-Peyser Act. Title VI and its implementing regulations prohibit any program or activity from excluding from participation in or denying the benefits of programs, or otherwise subjecting anyone to discrimination, on the ground of race, color, or national origin. 42 U.S.C. 2000d; 29 C.F.R. 31.3(a). The Department’s Civil Rights Center (CRC) administers and enforces these requirements.

Recipients may not use any “criteria or methods of administration which have the effect of subjecting individuals to discrimination because of race, color or national origin.” 29 C.F.R. 31.3(b)(2). Further, the “selection, and referral of individuals for job openings or training opportunities and all other activities performed by or through employment service offices” must be done without regard to race, color, or national origin. 29 C.F.R. 31.3(d)(1)(i).

c. The Americans with Disabilities Act of 1990, (ADA), 42 U.S.C. 12101 et seq., prohibits employment discrimination against qualified individuals with a disability. 42 U.S.C. 12112. The ADA applies to employers and employment agencies, 42 U.S.C. 12111(2), as well as state and local government programs, services, and activities. 42 U.S.C. 12132; 28 C.F.R. Part 35. DOL’s CRC is responsible for enforcing Title II of the ADA with regard to “[a]ll programs, services, and regulatory activities relating to labor and the work force.” See 28 C.F.R. 35.190(b)(7).

d. The Rehabilitation Act of 1973, (Section 504), 29 U.S.C. 794, prohibits discrimination against qualified individuals with a disability “under any program or activity receivingfederal financial assistance.” CRC administers and enforces the Department’s regulations implementing Section 504 that apply to recipients of financial assistance from the Department. These regulations state that no qualified individual shall, on the basis of disability, “be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity,” 29 C.F.R. 32.4(a), nor may a recipient “use criteria or methods of administration that have the effect of subjecting qualified [individuals with disabilities] to discrimination on the basis of [disability].” 29 C.F.R. 32.4(b)(4)(i).

e. The Workforce Investment Act (WIA), 29 U.S.C. 2801 et seq., is the key source of federal assistance for state and local workforce development activities. The relevant nondiscrimination provision in WIA states that no “individual shall be excluded from participation in, denied the benefits of, subjected to discrimination under, or denied employment in the administration of or in connection with, any such program or activity” on the basis of race, color, religion, sex, national origin, age, disability, or political affiliation or belief, among other bases. 29 U.S.C. 2938(a)(2). The regulations implementing this provision, administered and enforced by CRC, apply to all programs and activities that are operated by One-Stop partners as part of the One-Stop delivery system. 29 C.F.R. 37.2(a)(2). Similarly, under the Wagner-Peyser Act regulations, states are required to assure nondiscrimination regarding any services or activities authorized under that Act. 20 C.F.R. 652.8(j)(1). The WIA nondiscrimination eegulations prohibit recipients from using “standards, procedures, criteria, or administrative methods” that have the purpose or effect of subjecting individuals to discrimination on a prohibited ground due to the recipient’s administration of programs providing aid, benefits, services, training or facilities “in any manner.” 29 C.F.R. 37.6(d). In addition, the Wagner-Peyser Act regulations specifically require states to “[a]ssure that discriminatory job orders will not be accepted, except where the stated requirement is a bona fide occupational qualification (BFOQ).” 20 C.F.R.
652.8(j)(2).

5. Action Requested. Covered entities and their program operators are directed to review their existing policies and procedures and make any changes necessary to implement the guidance discussed in this TEGL. They are also encouraged to consult TEN 12-14: Promising Practices and Resources for Addressing Long-Term Unemployment, which contains best practices for overcoming barriers to employment for the long-term unemployed.

6. Contact Information. Inquiries about incentive programs and other efforts to promote employment opportunities for the unemployed should be addressed to the appropriate ETA regional or national office. Inquiries about civil rights issues should be addressed to CRC, by phone at 202-693-6500 (voice) or 202-693-6516 (TTY); by relay at 800-877-8339 (TTY/TDD), or (877) 709-5797 or myfedvrs.tv (video); or by e-mail at CivilRightsCenter@dol.gov. Complaints alleging discrimination by entities in the public workforce system may be filed with CRC by postal mail, e-mail, or fax, addressed to Director, Civil Rights Center, U.S. Department of Labor, 200 Constitution Avenue, NW, Room N-4123, Washington, DC 20210, CRCExternalComplaints@dol.gov, 202-693-6505 (fax). Further information about the discrimination complaint process is available on CRC’s website at http://www.dol.gov/oasam/programs/crc/external-enforc-complaints.htm.

Inquiries relating to discrimination in employment by federal contractors and subcontractors should be addressed to Office of Federal Contract Compliance Programs, U.S. Department of Labor, 200 Constitution Avenue, NW, Room C-3310, Washington, DC 20210. http://www.dol.gov/ofccp, 1-800-397-6251 (Help Desk).

Sony to Pay $85,000 under Decree Resolving EEOC Disability Discrimination Suit: Electronics Giant Allegedly Engineered Firing of Employee Because of Her Prosthetic Leg (December 23, 2014)

Tuesday, December 23rd, 2014

CHICAGO – Sony Electronics, Inc. will pay $85,000 under a consent decree entered in federal court today ending a lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC alleged that Sony violated the Americans with Disabilities Act (ADA) when it brought about the termination of a woman with a prosthetic leg because of her disability.

The employee had been sent by Staffmark Investment LLC, a staffing agency, to inspect Sony televisions on a temporary basis at a facility located in Romeoville, Ill. According to the EEOC, on the employee’s second day on the job, a Staffmark employee approached and removed the employee from the worksite, explaining that there were concerns she would be bumped into or knocked down.

Julianne Bowman, the EEOC Acting Chicago District Director who managed the agency’s investigation, said, “We found that although the employee’s removal was executed by Staffmark employees, it was actually prompted by a request from Sony’s management which made Sony complicit in the discrimination.”

The EEOC filed suit against both Staffmark and Sony. The case against Staffmark ended in a consent decree entered June 25, 2013 under which Staffmark paid $100,000 to the employee.

The consent decree, entered today by U.S. District Judge James B. Zagel of the Northern District of Illinois, ends the EEOC’s lawsuit against Sony and provides an additional $85,000 in monetary relief to the victim. The decree also requires Sony to report all employee complaints of disability discrimination to the EEOC for the next two years. Sony must also train certain of its managerial and supervisory employees on the laws pertaining to employment discrimination, including the ADA. The decree also specifically provides that Sony cannot require the employee to keep the facts underlying the case confidential, waive her rights to file charges of discrimination with a government agency, or refrain from applying for work with Sony or any of its clients.

John Hendrickson, the EEOC’s regional attorney in Chicago, said, “The ADA provides robust employee protections, even for short-term temporary workers hired through staffing agencies. Smart employers will learn from this case that they cannot insulate themselves from liability for discrimination by acting through employment and staffing agencies. That’s axiomatic under the civil rights laws we enforce-if you can’t do it directly, you can’t do it through someone else.”

EEOC filed the case, EEOC v. Staffmark Investment LLC and Sony Electronics, Inc., No. 12-cv-9628, on Dec. 4, 2012, after first attempting to reach a negotiated settlement through the agency’s conciliation process. EEOC Trial Attorneys Ann Henry and Brad Fiorito, and Supervisory Trial Attorney Diane Smason, litigated the case on behalf of the government.

EEOC’s Chicago District Office is responsible for processing charges of discrimination, administrative enforcement, and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa, and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.

The EEOC is responsible for enforcing federal laws against employment discrimination. Further information is available at www.eeoc.gov.

Justice Department Files Pregnancy Discrimination Lawsuit against the Chicago Board of Education (December 23, 2014)

Tuesday, December 23rd, 2014

WASHINGTON – The Justice Department today announced the filing of a lawsuit against the Chicago Board of Education, alleging that the board discriminated against pregnant teachers at Scammon Elementary School by subjecting them to adverse personnel actions, including termination in some instances, after they announced their pregnancies. According to the complaint, these adverse personnel actions were in violation of Title VII of the Civil Rights Act of 1964. Title VII is a federal statute that prohibits employment discrimination on the basis of sex, race, color, national origin and religion. The statute explicitly prohibits employers from discriminating against female employees due to pregnancy, childbirth or related medical conditions.

The suit, filed in the United States District Court for the Northern District of Illinois, alleges that, starting in 2009, the principal at Scammon subjected female teachers to lower performance evaluations, discipline, threatened termination and/or termination because of their pregnancies. The complaint further alleges that the board approved the firing of six recently pregnant teachers employed at Scammon and forced two other recently pregnant teachers to leave Scammon. The department’s complaint seeks a court order that would require the board to develop and implement policies that would prevent its employees from being subjected to discrimination due to their pregnancies. The relief sought also includes monetary damages as compensation for those teachers who were harmed by the alleged discrimination.

Two teachers who had been pregnant while working at Scammon filed charges of sex discrimination with the Chicago District Office of the Equal Employment Opportunity Commission (EEOC). The EEOC investigated the charges and determined that there was reasonable cause to believe discrimination occurred against the two charging parties as well as against other pregnant teachers. The EEOC was unsuccessful in its attempts to conciliate the matter before referring it to the Department of Justice.

“No woman should have to make a choice between her job and having a family,” said Acting Assistant Attorney General Vanita Gupta for the Civil Rights Division. “Federal law requires employers to maintain a workplace free of discrimination on the basis of sex.”

“Despite much progress, we continue to see the persistence of overt pregnancy discrimination, as well as the emergence of more subtle discriminatory practices in the workplace,” said EEOC Chair Jenny R. Yang.

“The EEOC will continue to vigorously enforce Title VII’s prohibition of discrimination against pregnant employees,” said John P. Rowe, former District Director of the EEOC’s Chicago District Office. Rowe led the EEOC’s administrative investigation of the charges filed by the two teachers.

This lawsuit is brought by the Department of Justice as a result of a joint effort to enhance collaboration between the EEOC and the Justice Department’s Civil Rights Division for vigorous enforcement of Title VII.

More information about Title VII and other federal employment laws is available on the website of the Employment Litigation Section of the Civil Rights Division (www.justice.gov/crt/about/emp/).

The continued enforcement of Title VII has been a priority of the Justice Department’s Civil Rights Division. Additional information on the Civil Rights Division’s work is available on its website at www.justice.gov/crt/. Pregnancy discrimination, in particular, has been identified by the EEOC as a strategic enforcement priority, and earlier this year, the agency issued updated guidance, which is available at www.eeoc.gov/laws/types/pregnancy_guidance.cfm

FTA Proposed ADA Circular, Amendment 2: Extension of Comment Period (December 19, 2014)

Friday, December 19th, 2014

The Federal Transit Administration is proposing guidance in the form of seven additional circular chapters to help transportation providers meet the requirements of the U.S. Department of Transportation’s Americans with Disabilities Act (ADA) regulations. These proposed chapters include Chapter 3 (Transportation Facilities), Chapter 6 (Fixed Route Service), Chapter 7 (Demand Responsive Service), Chapter 9 (ADA Paratransit Eligibility), Chapter 10 (Passenger Vessels), Chapter 11 (Other Modes), and Chapter 12 (Oversight, Complaints, and Monitoring).

Along with the previously proposed chapters, these chapters are proposed to be part of a series of 12 chapters that will compose a complete ADA circular (PDF).

FTA published a notice in the Federal Register on November 12, 2014, seeking public comment on these proposed circular chapters: Federal Register Notice Proposed Circular Amendment 2 (PDF).

FTA has extended the period for submitting comments on the proposed chapters to February 11, 2015: Extension of Comment Period.

For more information, go to http://www.fta.dot.gov/legislation_law/12349_16212.html.

HHS and DOJ Civil Rights Offices Issue “Dear Colleague” Letter: Fair Labor Protections for Home Care Workers (December 15, 2014)

Friday, December 19th, 2014

Dear Colleague:

On October 1, 2013, the Department of Labor promulgated a rule extending the minimum wage and overtime protections of the Fair Labor Standards Act (FLSA) to most home care workers (“Home Care Rule”). Application of the Fair Labor Standards Act to Domestic Service, 78 Fed. Reg. 60,454 (Oct. 1, 2013). The Home Care Rule becomes effective on January 1, 2015.

The Civil Rights Division and the Department of Health and Human Services’ Office for Civil Rights (OCR) recognize the importance of ensuring adequate workplace protections for home care workers, who provide critical services to millions of Americans. At the same time, it is important that states implement the Department of Labor’s rule in ways that also comply with their obligations under Title II of the Americans with Disabilities Act (ADA). In particular, because home care workers, such as personal care assistants and home health aides, often provide essential services that enable people with disabilities to live in their own homes and communities instead of in institutions, states should consider whether reasonable modifications are necessary to avoid placing individuals who receive home care services at serious risk of institutionalization or segregation.

The Department of Justice and OCR enforce the rights of people with disabilities to live integrated lives free from unnecessary segregation in institutions. Specifically, Title II of the ADA requires that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” As directed by Congress, the Attorney General issued regulations implementing Title II, which are based on regulations issued under section 504 of the Rehabilitation Act. The Title II regulations require public entities to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” The preamble discussion of the “integration regulation” explains that “the most integrated setting” is one that “enables individuals with disabilities to interact with nondisabled persons to the fullest extent
possible . . . .”

In Olmstead v. L.C., 527 U.S. 581 (1999), the Supreme Court held that Title II’s integration mandate prohibits the unjustified segregation of individuals with disabilities. Furthermore, compliance with Title II’s integration mandate requires that public entities reasonably modify their policies, procedures, or practices when necessary to avoid discrimination. The obligation to make reasonable modifications may be excused only where the public entity demonstrates that the requested modifications would “fundamentally alter” its service system.

Moreover, the ADA and the Olmstead decision are not limited to individuals currently in institutional or other segregated settings. They also apply to persons at serious risk of institutionalization or segregation. For example, a public entity could violate Olmstead if it fails to provide community services, or reduces those services, in a way likely to cause a decline in health, safety, or welfare leading to an individual’s eventual placement in an institution.

The Department of Labor’s Home Care Rule narrows the circumstances in which the companionship services and live-in domestic service employee exemptions from FLSA protections apply, both by updating the definition of “companionship services” and by prohibiting third party employers from claiming either exemption. Because of these changes, most home care workers, including those providing services through publicly funded programs, will be entitled to receive at least the Federal minimum wage for all hours worked and overtime compensation—one and a half times the worker’s regular hourly rate of pay—for all hours worked over 40 in a workweek.

Implementation of the Home Care Rule will require each public or private agency that administers or participates in a consumer-directed home care program, including those funded by Medicaid, to evaluate whether it is a joint employer under the FLSA. If it is a joint employer, the entity will then be responsible for compliance with the requirements of the FLSA. The Act’s minimum wage requirement applies to any time spent traveling between worksites—in the home care context, the consumer’s home—when employed by the same sole or joint employer at each worksite. The FLSA’s overtime compensation requirement includes, in the home care context, combined hours spent working for more than one consumer as part of the joint employment by the third party entity. More information and guidance regarding the Home Care Rule can be found at: U.S. Dept. of Labor, Wage and Hour Div., We Count on Home Care, available at: http://www.dol.gov/whd/homecare/ (last visited December 5, 2014).

The Civil Rights Division and OCR encourage states to conduct a thorough analysis of all their home care programs to determine whether any changes must be made to comply with the FLSA once the Home Care Rule becomes effective. In planning implementation steps, states must consider whether reasonable modifications are necessary to avoid placing individuals who receive home care services at serious risk of institutionalization or segregation. A state’s obligation to make reasonable modifications to its policies, procedures, and practices applies even when a home care program is delivered through non-public entities.

Many states are already taking concrete steps to implement the Home Care Rule. Some states are developing budget proposals to pay overtime and travel time for home care workers who work over 40 hours in a week. The Centers for Medicare and Medicaid Services (CMS) has published guidance to assist states in understanding Medicaid reimbursement options that will enable them to account for the cost of overtime and travel time that may be compensable as a result of the Home Care Rule. See Cindy Mann, CMCS Informational Bulletin: Self-Direction Program Options for Medicaid Payments in the Implementation of the Fair Labor Standards Act Regulation Changes (July 3, 2014), http://www.medicaid.gov/Federal-Policy-Guidance/Downloads/CIB-07-03-2014.pdf.

Other states are planning to comply with the new rule by setting limits or capping direct care workers’ hours or travel time. We are sensitive to states’ budgetary constraints. However, implementation of across-the-board caps risks violating the ADA if the caps do not account for the needs of individuals with disabilities and consequently places them at serious risk of institutionalization or segregation. For example, if a state prohibits home care workers from exceeding 40 hours a week of work, individuals who need more than 40 hours a week of care may not receive their full hours where home care workers are scarce. And even where home care workers are available, consumers with extraordinary medical or behavioral needs may not be able to tolerate multiple workers in their home. Emergency situations may also arise where a scheduled second worker is not available and the individual’s home care support needs would not be met without immediate authorization of overtime hours and pay.

Therefore, states need to consider reasonable modifications to policies capping overtime and travel time for home care workers, including exceptions to these caps when individuals with disabilities otherwise would be placed at serious risk of institutionalization. Whether a reasonable modification is needed and what the modification should be depends on the specific factual circumstances. States should also consider implementing processes that reliably and expeditiously enable individuals with disabilities to obtain cap exceptions when they are warranted. Finally, where implementation of the Home Care Rule disrupts services, states should collect and monitor data to ensure that the service disruption does not place individuals with disabilities at serious risk of institutionalization.

For more information regarding states’ obligations under Olmstead and the Americans with Disabilities Act’s integration mandate, visit Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C., available at: http://www.ada.gov/olmstead/q&a_olmstead.htm (last visited December 5, 2014).

The Civil Rights Division and OCR recognize and appreciate the work that states do in supporting individuals with disabilities to live integrated lives in their communities.

Office of Disability Employment Policy Newsletter (December 19, 2014)

Friday, December 19th, 2014

For more information, go to www.dol.gov/odep.

2015 Workforce Recruitment Program Now Open to Employers

Private businesses and federal agencies nationwide seeking qualified temporary and permanent job candidates from a variety of fields can now access the Workforce Recruitment Program (WRP), a free database of about 1,800 postsecondary students and recent graduates, including veterans, who are eager to prove their abilities in the workplace. Federal employers can search the database directly at WRP.gov; private employers can use WRP.jobs, where they can post permanent and temporary positions, and WRP students can search and apply for these positions using employers’ standard application processes. Only pre-screened WRP students have access to postings on WRP.jobs.

Charting a Pathway to a Technology-Accessible Workplace

“Charting a Pathway to a Technology-Accessible Workplace” was the topic of a December 15 blog post by Assistant Secretary of Labor for Disability Employment Policy Kathy Martinez on Disability.Blog. Stressing the importance of information and communication technology (ICT) to her work and her life, Martinez discussed the barriers faced by many people with disabilities because of inaccessible ICT. She also introduced the Office of Disability Employment Policy’s initiative called the Partnership on Employment & Accessible Technology (PEAT) which promotes the employment, retention, and career advancement of people with disabilities through the development, adoption, and promotion of accessible technology. PEAT is currently conducting a nationwide survey about the accessibility of online job applications, and Martinez invited readers to participate.

ODEP Releases Report on Individualized Learning Plans

A new report called “Use of Individualized Learning Plans: Findings and Recommendations from a Multi-Method, Multi-Study Effort” has been released by the Office of Disability Employment Policy. The report documents a 2007-2013 study to determine whether Individualized Learning Plans (ILPs) should be considered a promising college and career readiness practice and whether and how youth with disabilities are participating. As a tool available to all youth, and in conjunction with Individualized Education Programs (IEPs) for youth with disabilities, ILPs show promise as an effective practice for strengthening the career development process and the connection between school and work, though the absence of a randomized control design in this study necessitates further research.

ODEP and the LEAD Center Publish Report Highlighting Employee Retention and Return-to-Work Best Practices

The Office of Disability Employment Policy (ODEP) and the LEAD Center have recently released the report, “Best Practices in Employee Retention and Return-to-Work: An In-Depth Look Inside an Exemplary American Corporation.” Highlighting effective retention and return-to-work policies and practices gleaned from ODEP and LEAD’s professional analysis of a large corporation, the report offers suggestions and identifies replicable best practices that benefit both employers and employees.

Department of Labor Announces $100M in Apprenticeship Grants

The U.S. Department of Labor has announced that $100 million in grants are available to expand registered apprenticeship programs in high-skilled, high-growth industries like healthcare, biotechnology, information technology and advanced manufacturing. Apprenticeship grants will be awarded to public and private partnerships consisting of employers, business associations, joint labor-management organizations, labor organizations, community colleges, local and state governments, and other non-profit organizations. The grants will also encourage greater access to apprenticeship opportunities for historically underrepresented populations including women, young men and women of color, people with disabilities, and veterans and transitioning service members. Funding applications must be submitted by April 30, 2015. The Funding Opportunity Announcement, which includes information on eligibility and how to apply, is available at www.grants.gov.

Home Care Rule Letter Issued by U.S. Departments of Justice and Health and Human Services

A Dear Colleague letter, jointly issued from the Civil Rights Division, U.S. Department of Justice, and the Office of Civil Rights, U.S. Department of Health and Human Services, discusses states’ obligations under Title II of the ADA to avoid placing individuals at serious risk of institutionalization when considering implementation options of the new Fair Labor Standards Act regulations extending minimum wage and overtime protection to most home health care workers (“Home Care Rule”). The Home Care Rule becomes effective on January 1, 2015.

MentalHealth.gov Posts Fact Sheet on Health Insurance and Mental Health Services

A new fact sheet on MentalHealth.gov explores the ways that the Affordable Care Act is increasing access to mental health and substance use disorder services. As of 2014, most individual and small group health insurance plans, including plans sold on the Health Insurance Marketplace, as well as Medicaid Alternative Benefit Plans, are required to cover mental health and substance use disorder services. The fact sheet also provides general information about the Health Insurance Marketplace.

ODEP’s News Brief Signs Off for the Holidays

ODEP wishes you a safe holiday season. ODEP’s News Brief will resume on January 9, 2015.

Office of Disability Employment Policy: Business Sense (December 17, 2014) The Workforce Recruitment Program: Tap Into the Talent of Young Workers With Disabilities

Thursday, December 18th, 2014

For more information, go to www.dol.gov/odep.

For many businesses, the approach of the New Year involves strategic planning. It’s a time to outline priorities and set goals, and more often than not, staffing, recruiting and other human capital issues are at the top of the list.

One way to ensure a successful, long-term human capital strategy is to build a strong pipeline of talent that can serve your needs now, and in the future. Many businesses turn to internships as an effective hiring and recruitment solution. It’s a tactic that can help you fill short-term or seasonal staffing needs, evaluate potential permanent employees, and diversify your workforce by adding the new perspectives of a younger generation.

One proven resource for finding qualified interns is the Workforce Recruitment Program (WRP), which connects businesses to a database of about 1,800 pre-screened and highly motivated college students and recent graduates with disabilities, including veterans with disabilities. Private-sector employers can take advantage of this resource through WRP.jobs — a portal specifically designed to connect them to qualified talent. At WRP.jobs, private-sector employers can post permanent and temporary positions, and WRP students can search and apply for these positions using employers’ standard application processes. Only pre-screened WRP students have access to postings on WRP.jobs.

It’s hard to ignore the value of the WRP. Just consider Daman Wandke, a WRP intern who landed a position at technology firm, SSB BART Group. Daman serves as a user interface analyst at the firm, helping clients identify ways to make their websites and other technology applications more accessible. And it’s a relationship that has benefited employer and employee alike. “When we look at Daman, I say he has had a positive impact on us,” says Timothy Springer, SSB BART Group’s CEO. “We look for employees to make us smarter on average; he definitely passes that test. And in that same vein I think we’ve built an organization where we can have a positive impact on his life and help him realize his full potential.”

Use of the WRP is free for all employers and facilitated through the Employer Assistance and Resource Network (EARN), a service of the National Employer Technical Assistance Center funded by the U.S. Department of Labor’s Office of Disability Employment Policy. To learn more, visit the WRP employer webpage.

Office of Disability Employment Policy Newsletter (December 12, 2014)

Friday, December 12th, 2014

For more information, go to www.dol.gov/odep.

Report on Federal Employment of People with Disabilities Released

The U.S. Office of Personnel Management has released the Fiscal Year 2013 Employment of People with Disabilities in the Federal Executive Branch Report. Among the key findings are that the Federal government hired people with disabilities at a higher rate than at any time in the past 33 years. Specifically, in FY 2013, 18 percent of new federal hires were people with disabilities, representing a 1.9 percent increase over fiscal year 2012.

Blog Post Shares Insight from Corporate Leaders on Disability Employment

This week, Assistant Secretary of Labor for Disability Employment Policy Kathy Martinez joined forces with Ernst & Young (EY) Global Diversity and Inclusiveness Officer Karyn Twaronite in authoring a blog post titled Leading the Way: Workplace Inclusiveness for People of All Abilities. The ideas shared in the post emanate from the Diverse Abilities Leadership Summit hosted by EY on Dec. 3, which convened about 50 top-level executives from companies such as IBM, Cisco and Merck.

Event Explores Intersection Between Disability and International Labor Rights

DOL’s Bureau of International Labor Affairs (ILAB) hosted a Disability and International Labor Rights Roundtable this week, during which participants explored how current priorities in disability policy can better inform international efforts led by ILAB and other agencies. Assistant Secretary Martinez was one of the featured speakers, along with representatives from the U.S. Agency for International Development, Equal Employment Opportunity Commission and International Labor Organization.

PEAT Seeks People with Disabilities to Participate in Survey on Online Job Seeking

The ODEP-funded Partnership on Employment & Accessible Technology is conducting a nationwide survey about the accessibility of online job applications and related components—a topic Assistant Secretary Martinez addressed in a blog post published this week. All people with disabilities who have recently searched or applied for employment and/or completed pre-employment assessments online are encouraged to participate. The survey is anonymous, and only takes a few minutes to complete.

Annual Disability Statistics Compendium Released

The 2014 Disability Statistics Compendium has been released. This web-based tool aggregates disability statistics published by various federal agencies in order to assist policymakers and others who work on disability issues. It is compiled by the Research and Training Center on Disability Statistics and Demographics, which is funded by the U.S. Department of Education’s National Institute for Disability and Rehabilitation Research.

Office of Disability Employment Policy Newsletter (December 5, 2014)

Saturday, December 6th, 2014

For more information, go to www.dol.gov/odep.

Assistant Secretary Martinez Discusses Disability Inclusion with Corporate Leaders

About 50 top-level executives and leaders of disability-focused employee resource groups gathered in New York City on December 3 to discuss best practices in recruiting and retaining qualified people with disabilities at a Diverse Abilities Leadership Summit hosted by global professional services firm Ernst & Young. Assistant Secretary of Labor for Disability Employment Policy Kathy Martinez delivered the keynote address, emphasizing the clear connection between inclusion and corporate goals.

Office of Disability Employment Policy Hosts Employment First State Leaders

To kick off the fourth year of its Employment First State Leadership Mentoring Program (EFSLMP), the U.S. Department of Labor’s Office of Disability Employment Policy hosted a National Employment First Meeting on December 2 in Washington, DC. The event included 150 participants comprised of state government officials, disability stakeholders, and subject matter experts across 25 states. The state teams received technical assistance and information on how to accelerate their state Employment First efforts to prioritize integrated employment as the preferred outcome of non-residential services to youth and adults with significant disabilities. In her opening remarks, ODEP Assistant Secretary Kathy Martinez stated, “From my vantage point, the results of the EFSLMP during its first three years have been nothing short of inspiring.” The EFSLMP will provide technical assistance to 15 core states in FY2015, as well as continue to host a National Employment First Community of Practice for interested stakeholders in all fifty states.

“Let’s Get to Work!” — HIV/AIDS and Employment

In a U.S. Department of Labor blog titled “Let’s Get to Work!” that appeared on World AIDS Day, December 1, Dylan Orr, Chief of Staff for the Office of Disability Employment Policy, looked at the important role that employment plays in the lives of people living with HIV/AIDS. Orr noted, “Today, more and more people with HIV/AIDS are living healthy lives and can and want to work — and research clearly demonstrates the benefits of doing so.” The blog highlighted a multimedia training curriculum for HIV/AIDS service providers called “Getting to Work,” developed by ODEP and the U.S. Department of Housing and Urban Development, which provides proven strategies for incorporating employment into HIV/AIDS service offerings. Orr illustrated these concepts by telling the story of Beverly, an HIV-positive transgender woman who received services from one of the organizations featured in “Getting to Work.”

ODEP’s PEAT Announces Webinar on Accessible Technology for Users with Cognitive Disabilities — December 11, 2:00-3:30 PM EST

The Office of Disability Employment Policy-funded Partnership on Employment & Accessible Technology (PEAT) will be co-hosting a webinar titled “Expanding What It Means to Be Accessible: Addressing the Workplace Technology Needs of Users with Cognitive Disabilities.” Hosted in collaboration with the Autistic Self Advocacy Network, the online event will explore exemplary accessibility practices to ensure that web-based technologies meet the needs of all users, including those with cognitive, intellectual, and developmental disabilities, traumatic brain injuries, and other conditions. The webinar will be held December 11, 2:00-3:30 PM EST.

Job Accommodation Network Federal Webcast Series Open for Registration

The Job Accommodation Network (JAN) is now accepting registrations for its 2015 Federal Employer Winter Webcast Series. The free, three part series of Webcasts will cover federal sector hiring and employment, reasonable accommodation, and best practices. JAN will welcome guest speakers from the Computer/Electronic Accommodations Program (CAP), Department of Defense on January 15; Office of Civil Rights and Liberties, Transportation Security Administration on February 18; and the Equal Employment Opportunity Commission on March 11. All Webcasts are held 2:00-3:30 PM EST. You must register to attend.

LEAD Center Releases New Policy Update — Employment, Health Care and Disability

The LEAD Center’s Policy Update — Employment, Health Care and Disability is a monthly update focusing on the intersection of disability, employment and health care policy. It provides policymakers, disability service professionals, individuals with disabilities and their families with information about relevant policy developments regarding Medicaid, the Affordable Care Act and related topics, with a focus on improving employment outcomes for individuals with disabilities. The November 2014 update features stories on a DOL temporary delay of a home care worker final rule, new APA toolkits for Medicaid mental health services, a new report on the most and least disability friendly cities in the United States, highlights of recent state transition plans and much more. The LEAD Center Policy Update — Employment, Health Care and Disability is a project of the LEAD Center in collaboration with the Autistic Self Advocacy Network.

Celebrating the International Day of Persons with Disabilities

The International Day of Persons with Disabilities, sponsored by the United Nations, was observed on December 3. The theme for 2014 was Sustainable Development: The Promise of Technology. The celebration provided an opportunity to raise awareness of disability and technology accessibility, and to focus on removing all types of barriers to people with disabilities around the globe.

OFCCP Announces a Final Rule Prohibiting Discrimination Based on Sexual Orientation and Gender Identity (December 3, 2014)

Wednesday, December 3rd, 2014

WASHINGTON — A new rule prohibiting discrimination on the bases of sexual orientation and gender identity in the federal contracting workforce is being announced today by the U.S. Department of Labor. The rule implements Executive Order 13672, which was signed by President Obama on July 21.

“Americans believe in fairness and opportunity. No one should live in fear of being fired or passed over or discriminated against at work simply because of who they are or who they love,” said U.S. Secretary of Labor Thomas E. Perez. “Laws prohibiting workplace discrimination on the bases of sexual orientation and gender identity are long overdue, and we’re taking a big step forward today to fix that.”

EO 13672 tasked the department with updating the rules implementing EO 11246 to add gender identity and sexual orientation to the classes it protects. While 18 states, the District of Columbia and many businesses, large and small, already offer workplace protections to lesbian, gay, bisexual and transgender employees, July’s executive order was the first federal action to ensure LGBT workplace equality in the private sector.

“We are building on the work of presidents and members of Congress from both parties who have expanded opportunities for America’s workers,” said Patricia A. Shiu, director of the department’s Office of Federal Contract Compliance Programs, which will enforce the new requirements. “This rule will extend protections to millions of workers who are employed by or seek jobs with federal contractors and subcontractors, ensuring that sexual orientation and gender identity are never used as justification for workplace discrimination by those that profit from taxpayer dollars.”

The final rule will become effective 120 days after its publication in the Federal Register and will apply to federal contracts entered into or modified on or after that date. More information is available at http://www.dol.gov/ofccp/LGBT/.

In addition to EO 11246, OFCCP enforces Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974. These three laws require contractors and subcontractors that do business with the federal government to follow the fair and reasonable standard that they not discriminate in employment on the basis of sex, race, color, religion, national origin, disability, status as a protected veteran, and now sexual orientation and gender identity.

For general information, please call OFCCP’s toll-free helpline at 800-397-6251 or visit http://www.dol.gov/ofccp/.