How to Audit Employment Discrimination Laws Compliance

• Proactive Audits: Employers should take a proactive, "spring cleaning" approach to their anti-discrimination policies and handbooks by conducting regular audits at least once a year. The goal is to be a "target out of range" from potential litigation.

• EEOC Enforcement: The Equal Employment Opportunity Commission (EEOC) is still very active, receiving hundreds of thousands of charges annually and pursuing its own cases. There has been a recent increase in aggressive investigations and a shift in priorities under the new administration, particularly regarding religious discrimination and diversity, equity, and inclusion (DEI) issues.

• Policy Updates:

  • Handbooks should be treated as living documents, not contracts. They should state that policies are subject to change at management's discretion.

  • Update policies to comply with recent laws like the Pregnant Workers Fairness Act (PWFA) and the Pump for Nursing Mothers Act. This includes providing non-bathroom lactation spaces and potentially paid breaks for expressing milk.

  • Ensure policies are non-discriminatory and non-retaliatory. It's crucial to have clear complaint and investigation procedures and to train managers to escalate issues to HR.

  • For discrimination claims, be sure to use catchall language like "any other factor prohibited by law" in your policies.

• Recruitment vs. Hiring: Employers can have broad or focused recruitment efforts (e.g., at a university for new graduates) as long as the hiring criteria are non-discriminatory.

• Investigation and Documentation: Thorough, well-documented investigations are critical. Employers should listen to all complaints, not just from the directly aggrieved person, as awareness of harassment can be a basis for a claim.

• Poster and Notice Compliance: Employers must display up-to-date posters in conspicuous places and provide required notices (e.g., for background checks) with application materials.

• Terminating Injured Employees: Terminating an employee on workers' compensation is a tricky legal issue. It is more prudent to wait until they return to work or reach maximum medical improvement unless you can definitively prove the position would have been eliminated regardless of their injury. This is a topic best handled with caution and legal guidance.

Elizabeth K. Dorminey (00:00): My name is Betsy Dorminey. I'm a partner at Wimberley and Lawson. With me today is my esteemed and excellent colleague, Ms. Sheri, who is one of our council and quite an authority on handbooks and discrimination policies. We're going to have a tag-team discussion on how to audit for discrimination law compliance. I like to start by thinking about audits in terms of spring cleaning; it's something we should do once a year. We should look at your policies, toss the ones that aren't meaningful, tidy up others as needed, and add new ones. There have been some significant changes in the last 12 months that we want to bring to your attention to ensure people are in compliance. The "Lawson" of Wimberley Lawson used to say his goal as a lawyer was to make his clients a "target out of range." We'd like to continue that tradition.

I'm just going to dive right in. We'll divide up the topics a little and proceed. I'll let Sheri make a few remarks, and then we'll hit some of the hot-button issues and probably talk more generally. Toward the end, we'll be able to take questions from you via email or live. Ms. Sheri, I'm going to toss the baton to you.

Sheri Oluyemi (01:50): Absolutely. We can take questions live once we are in the Q&A phase. You can click on your Zoom screen and raise your hand, and I can unmute you so you can have the floor and ask your question live. Alternatively, you can use the Q&A box, which I'll open now. I'll keep my eye on that as questions come in. We'll either answer them as we go or save them for the end of the webinar. I'll second what Betsy said: we're here to encourage a proactive approach to your policies and procedures. It's difficult to always be on the defensive, reacting to a situation as opposed to having a plan ahead of time. As they say, if you fail to plan, you plan to fail.

Generally, most of our clients, and perhaps most of you, have already invested in anti-discrimination policies and an employment handbook. But a document is like the Constitution: a living document. You must update it. It doesn't refresh on its own. You have to take the time occasionally to review your policies, either annually, biannually, or whenever you receive one of Wimberley Lawson's employment law updates. Wimberley Lawson is very prolific in sending out alerts to people who have registered on our website. When there are new laws, changes in laws, or significant decisions, we do our best to push those out so that you're aware. As Betsy said, our webinar will take a checklist approach to different discrimination policies, DEI policies, and FLSA policies. We're going to ask you questions like, "Are your reporting mechanisms clear? Is your management team consistently trained? Are your investigations fair, thorough, and well-documented?" We'll help you put together a checklist of issues that you should consider as you decide how to do your audits, how frequently to do them, and what to look for substantively.

The first topic we'll cover is the EEOC. I'll just give an overview, and Betsy will get into more specific details about the statutes the EEOC covers. The EEOC is very much alive, albeit under new leadership. As you know, with every change in administration, there is a shift in priorities for different agencies. Some people believe that the EEOC is now defunct, like the OFCCP; that is not the case. If you've heard that, it is false. The EEOC is very much alive. Charges are being filed. The EEOC receives over 300,000 charges a year. You can see up-to-date numbers online. The EEOC recently registered, just this last July, the largest public settlement in almost 20 years, where Columbia University agreed to pay $21 million to resolve EEOC antisemitism charges. That's just an example of the fact that even under this new administration since January, the EEOC is alive. In my experience, I don't know if you've noticed it, Betsy, there have been some more aggressive investigators lately, wanting to do on-site interviews and requesting further information. So, please be aware that the EEOC does continue to prosecute employers who engage in discrimination, harassment, and retaliation on the basis of sex, race, religion, national origin, disability, pregnancy, and age. The list may already be in your HR handbook, but consider whether you have the word "pregnancy" there. Perhaps that's something that you have put under sex or gender identity. Look over your policy to ensure that each of the issues that the EEOC currently covers is listed in your handbook. Betsy, you wanted to get into more specifics?

Elizabeth K. Dorminey (06:13): Yes, I particularly wanted to talk about some of the more specific, and then maybe general, priorities this administration seems to have. The religious discrimination issue seems to be very strong. As Sheri was talking, I was remembering that individuals can and do file charges with the EEOC, but the EEOC can also pursue its own cases and take ownership and leadership in a case brought by an individual. So, that's something to consider when you're thinking about the priorities. They really have been after the educational institutions, particularly the DEI issues (diversity, equity, and inclusiveness). Any employer would be forgiven for feeling whiplash about this because the last administration said, "You need to do this," and then the new administration comes around with a new executive order that says, "You mustn't do this." I also wanted to point out, as Sheri mentioned, the OFCCP (Office of Federal Contract Compliance) is no more. For all the employers out there who are also federal contractors, whether they're aware or not, that is a significant reporting burden and litigation vulnerability that has been lifted from your collective shoulders. This is a pretty significant change because the executive order on which that policy was based dated all the way back to the Johnson administration. Employers should certainly scour their policies and handbooks. I reviewed a handbook not too long ago and found language that I felt was not in the employer's interest and took it out because any kind of preferences are anathema now. You have to be sure that your policies are very clear and remain on the high ground of non-discrimination and non-retaliation to ensure that you don't run afoul of some of these agency charges, which are usually more burdensome and difficult than cases brought by individuals. I've also noticed some house cleaning with the EEOC; cases that have been sitting for a long time and hadn't been acted upon. The EEOC does seem determined at the local level to be sure that they're clearing the books and trying to get the cases that have been sitting around for a long time resolved one way or another.

So, here are some audit handbook considerations: It's always good to have the statement that you are an equal opportunity employer and don't engage in or tolerate any kind of harassment or discrimination of any sort. That is good boilerplate language, and nothing has changed about that. It's not a bad idea to put it in your materials and to remind managers and supervisors that you are committed to it. Now, some questions have come up in the context of recruiting. I think that's a particularly interesting area. Some employers are concerned that if they engage in recruitment practices that tend to favor some groups over others, they might be running a foul of the EEOC. I'll let Sheri share her thoughts, but my opinion is that recruitment is one thing and hiring is another. You can recruit as broadly or as narrowly as you want, but your criteria for selecting and hiring people are where the rubber meets the road. That is where it would be important to follow the principle of non-discrimination in making your selection. Sheri, would you like to comment on that?

Sheri Oluyemi (10:54): I would agree with you, Betsy. I'll give you a scenario, for instance: if your company's interested in new hires, new graduates because you're looking for a new graduate who can grow with your company and stay long-term, who needs experience in an entry-level position, you would go to recruit at a university because that's where you would find your recent graduates. By focusing your recruitment efforts at a university, are you exposing yourself to an age discrimination claim? I would say not because people of all ages graduate from university. So, if you go to a university to recruit these new graduates, you're not exposing yourself to an age discrimination complaint because your efforts are focused more on the new skills that these new graduates have. They may be younger applicants generally, but it doesn't discriminate against any older applicants who may be part of the group. So, I would agree that your recruitment can be broad and can also be focused on specific skill sets that you're looking for without running afoul of discrimination laws.

Elizabeth K. Dorminey (12:07): And this holds true, I would point out, for people who use referrals from current employees. That's certainly a legitimate way to seek out new people. Some people recruit through religious organizations to let those groups know that they're interested in hiring people. Some employers have more flexibility with language proficiency than others. We represent a lot of poultry processors, and there are a lot of languages in most poultry processing facilities. That can be a great job for somebody whose proficiency in English is not up to where they could, for example, work at McDonald's and take orders through a window from the general population. Those kinds of things are not going to get you in trouble, I don't think, in a discrimination scenario, as long as you can prove that your hiring criteria are not favoring one group over another or refusing to consider people from any particular group.

Let's see what else we can look at. Another issue that has come up is retaliation, which is always going to be strong. That's one place where it can be important to look at your investigative and complaint procedures because a lot of times, employees who are aggrieved may add a retaliation claim because they don't feel that they've been properly listened to, or they feel intimidated from filing a complaint. So, this is an area that you might be particularly sensitive to when reviewing your own policies and practices. Let me think of an example here.

Again, a statement in your orientation materials and in your handbook that you have an open-door policy with regard to complaints and procedures for people to file complaints is a good idea. Usually, it's with the supervisor or, if the supervisor is not an appropriate person, the human resources department. And then, some follow-up with your employees who do file complaints so that they can have a justifiable feeling that they have been heard and that their complaints have been taken seriously and that you've taken whatever action you conclude is appropriate. This can also range into a similar but not exactly the same area: disability discrimination. That's another very popular area now for people to file charges. It's important that you put the burden on your employees to let you know if they need an accommodation. That should be reflected in your policies as well, that you work with everybody on an individual, case-by-case basis and determine what a reasonable accommodation is whenever it's being requested so that you have a good blueprint for an interactive process with your employees in your training materials and in your handbooks.

One other new thing that's come up is the pregnancy and lactation policies. Those are relatively new, but I don't think they've been countermanded by this administration, though they came in during the last one. Sheri, would you like to speak to those?

Sheri Oluyemi (16:09): No, they have not. There have been some attempts in court to enjoin the effectiveness of some of these statutes, and we're talking about the Pregnant Workers Fairness Act, and those have not been successful. So, the PWFA is still in effect; it's been in effect now since 2023. The EEOC is accepting charges and has filed suit based on that statute. In terms of your handbook audit, it is critical to go through and make sure that the old language you had before 2023 has been updated to include language that will be compliant with the Pregnant Workers Fairness Act. For example, this act states that if a woman is obviously pregnant, you as an employer are not entitled to deny a reasonable accommodation that is not an undue hardship to you on the basis of a lack of medical documentation. You can see that the woman is obviously pregnant. You cannot deny her an accommodation because she does not have a medical note. The statute essentially says that the standard is a little bit lower for pregnant workers when they're asking for an accommodation for something obvious. For example, with lactation, the employee would not need to provide you with a medical note about lactation. If they request an accommodation for a specific room that is private or time to lactate, as is required by the Pump Act, which modified the FLSA, you are required to provide that time. So, it is important to go back to your handbook, especially if it was drafted pre-2023, to ensure that these little changes are noted in your handbook, such that it is compliant, and the employee has instructions about how to get an accommodation. And importantly, that your managers, including the first-line supervisors who are usually the individuals who notice these things about their employees, have received adequate training. We have a whole checklist here of pregnancy-related questions to ask yourself during the audit. Betsy, I don't know if you want to go through them or if you'd like me to provide a couple to our listeners.

Elizabeth K. Dorminey (18:28): I'll let you pursue that, but I do want to point out one thing, which I think may be a bit of a surprise. Correct me if I'm wrong, Sheri, but my recollection is that the space for lactation, putting a chair in a bathroom, is not going to satisfy the requirement.

Sheri Oluyemi (18:44): No, no. And that has not been...

Elizabeth K. Dorminey (18:45): That's kind of important because that's a yes, a little piece of real estate there that people have to think about.

Sheri Oluyemi (18:50): Here in Georgia, that has been illegal for some time. It is a private space that is not a bathroom. The changes more recently are that if the break would ordinarily be paid time for other employees, you also have to pay it for someone who's using their break to express breast milk. Another change is that if the employee requires more frequent breaks than a non-lactating employee, if that's a reasonable accommodation that is not an undue hardship to your operations, you do have to consider it. Those are along the lines of what are the newer updates.

Elizabeth K. Dorminey (19:26): And in that philosophy, it's not all that different from the ADA accommodations, would you say?

Sheri Oluyemi (19:32): Well, it's not. For me, the biggest change has been the requirement for employers to give up the default, "Well, I need a doctor's note." The PWFA states that you don't always get one if it's obvious. Of course, if it's more detailed, yes. If it's something you can't immediately ascertain, you can request a doctor's note; you can request a vocational study if the employee needs to sit or stand in a certain way, or needs an ergonomic chair. Those are more nuanced. So, if you need a physician to fill out a detailed return to work form, that would be okay. But that's, for me, the biggest change I've seen between the PWFA accommodations and the disability accommodations.

Elizabeth K. Dorminey (20:16): Although with disability too, if you notice that something is obvious to the casual passerby, then you don't have to pursue medical channels to begin the discussion.

Sheri Oluyemi (20:30): But employers have been very successful in defenses just by saying, "I didn't have a medical note, I didn't know what they needed." And sometimes under disability, that works. With pregnancy, again, this is new, so we don't have a ton of case law to give us guidance, but we're advising employers to err on the side of caution. This also reminds me of some changes to religious accommodations that you may or may not have in your handbook. Recently, the standard was lowered a little bit; the employee does not need to show a substantial impact on the employer's operations in order for the employer to give an accommodation. So, if you have language in your handbook that states exactly what the employee needs to show to get a religious accommodation, you may want to revisit that against the recent case law that has somewhat reduced the standard on what the employee needs to show. We did not have that on our outline, but it just came to mind.

Elizabeth K. Dorminey (21:35): No, but that's why we have these discussions with two people because you can think of more things and cover more ground. Now, policies about harassment and discrimination, those really haven't changed a great deal, have they? But it always is a good idea to revisit what you've got in a handbook and make sure that it's current.

Sheri Oluyemi (21:58): The most recent and perhaps the biggest change in harassment has been the EEOC's guidance. They issued a, I believe it's over a hundred pages long, guidance on harassment in the workplace. We did a webinar on this. Some of the information in that guidance is shocking. For instance, the EEOC believes that if someone is aware of someone in their same protected category being harassed, that individual has standing to bring a harassment claim on their own, even if they were not harassed. If they are simply aware that, for example, another woman is being harassed, that's sufficient for the EEOC to make a determination that the individual who's simply aware of the harassment of a third party, little changes like that, the EEOC has put in their hundred-page harassment guidance. We don't recommend adopting all of it. We're waiting to see what the courts do with that guidance. Usually, well, not usually, but sometimes the 11th circuit disagrees with the EEOC's guidance and does not rubber-stamp them. So, that case law will really be our guidance. But it is helpful if you have a comprehensive harassment policy and you're auditing it. You can review the EEOC's guidelines, and if there's anything you think you can implement without being a disruption to your operations, you're erring on the side of caution. If you ever receive an EEOC charge, it'll be something you can demonstrate to the EEOC. "We revised this policy recently; we did our best to match your guidelines, even if we believe it's overbroad, and even if we believe the courts will not require us to go that far." You would at least have shown good faith, which is helpful when we're defending a punitive damages allegation. So, that's really been the biggest change in the harassment scope.

Elizabeth K. Dorminey (24:06): Well, that is an important one because I know a lot of employers have taken the position of, "Don't come and tell me that Mary's having a problem. Mary needs to come and talk to me herself," and then claiming no knowledge when Mary doesn't show up. So, that is something to be concerned about. That also raises the idea of how one conducts investigations. Some defense counsel or plaintiff's counsel have been aggressive about raking an employer over the coals for the manner in which they have investigated claims of harassment and what they've done about it. They question whether the employer has, in fact, followed its own policies when conducting an investigation in terms of who they interview and how the interviews are conducted. We always want everybody to document everything they possibly can because a written record is a much more solid thing to stand on than somebody just saying, "Well, I talked to so and so." But these are things to be aware of. Also, for more broad and general protection in your employment policies and handbooks, it's important to make a note that no employment handbook is a contract of employment. The policies and so forth are subject to change with or without notice at the sole discretion of management. You don't want to get caught in a bind where someone says, "Well, you said in the handbook you were going to do X with progressive discipline, and you didn't do it." The other thing is to make sure that in your disciplinary policies, if you have a progressive disciplinary approach where you go through first warning, second warnings, and so forth, you also include a caveat that says that based on what somebody's done, you reserve the right as the employer to bypass any of the intermediate steps and go straight to termination if you honestly believe that the employee's conduct is so outrageous as to merit that action.

Sheri Oluyemi (26:40): I agree entirely. That goes back to a section we have in almost every training. You must train your managers not to say that the handbook is a contract. Train them not to say, "Well, you know, the handbook governs." The handbook is a guideline; it is not a binding object of law. It is simply a guideline subject to revision by the employer at any point in time. And again, you must train your first-line supervisors that if they don't understand the situation, they should escalate it to human resources or someone knowledgeable. That should be in your handbook. One of my recent pet peeves when I update a handbook, I find names of employees who no longer work for the company: "Report this to Jane Doe," and Jane Doe hasn't been here for 10 years. It's a best practice to include the job title, for example, "The Director of Human Resources." So, if you're not updating your handbook every time your director of HR changes, that position will remain consistent. There'll never be a claim that "I couldn't reach the person you wanted me to report to," or "I didn't know who that was, and they were not in the company directory." It's simpler to include just the job position and train your supervisors to say, "Go to HR, go to this position in HR and make your complaint." When they recognize or don't recognize something, when they just have a question, those first-line supervisors are usually where we see a lot of mistakes just because they're not trained in HR. They run the operations and may not have had experience dealing with certain requests for accommodation or complaints about harassment. So, it's very important to train them to escalate to HR whenever they have a question.

Elizabeth K. Dorminey (28:43): That is a good point, and that evergreen nature of policies will guard you against the risk that some employers encounter where they have great policies on paper. We particularly see this in occupational safety and health. You can have all the policies in the world that look great, but it's worse for you to have good policies that aren't enforced than to have no policies at all because the existence of a good policy gathering dust will allow the employee or the government prosecutors to say, "Aha, you knew you were supposed to do this and you didn't do it." So that puts you in a worse position than if you had not adopted those policies in the first place.

Sheri Oluyemi (29:32): Okay. So, just before we move off of Title VII, Pump, and the PWFA, I'll just give you some questions to ask yourself. The very baseline: make sure you have a policy addressing discrimination on the basis of gender, sex, gender identity, and pregnancy. Make sure that it addresses the issue of lactation. Make sure that it addresses maternity leave if that's something that you provide. And then, some companies may have desk manuals just for supervisors, and in those desk manuals, you may need more detail about maternity leave and accommodations. But in your handbook that's distributed to all employees, at least touch on these subjects. Make sure pregnant employees are not excluded from certain jobs by default. Sometimes you think you're doing them a favor. "Hey, I took you off this machine because I see you're pregnant." Let the employee come to you and say, "Hey, I'm pregnant; as you can see, I can't work on that machine." When that employee makes that request, and then you start to consider it, don't make the decision for them thinking you're doing them a favor. That could always come back and boomerang in the wrong direction. Are males and females treated alike in being granted or denied these requests? For example, maternity leave, paternity leave. Don't treat women automatically better just because they're the pregnant sex. If you have leave for one sex, consider if you want to make leave for the other sex; try to be as equal as you can. Make sure there's a policy against sexual harassment. A lot of policies I've seen these days will list all the different forms of harassment. Always make sure there is a caveat that says, "and others that are not included here and will be determined on a case-by-case basis." Do supervisors get training? I've already touched on that a little bit. And then, is there a complaint procedure for harassment? Is there a disciplinary procedure for harassment? These are things you may want to consider. And then, of course, in this list, I think it's important for each employer to look at what is prevalent at their workplace. What is the issue that you have recurring? Perhaps it's time to sit down and either develop a policy on that specific issue or revise the policy that you may already have in effect. Betsy, do you want to talk briefly about Bostock v. Clayton, the sexual identity decision that came out years ago?

Elizabeth K. Dorminey (32:26): For discrimination, you have to say race, age, sex, et cetera, or "any other factor prohibited by law" that's going to be a catchall for you at the end. Bostock v. Clayton County was a very interesting case from our own state of Georgia. Clayton County, Georgia, was in that one. That decision held that Title VII of the Civil Rights Act protects employees from discrimination based on sexual orientation and gender identity. That was a bit of a sea change. The EEOC had championed that position for a long time, and a few years ago, the Supreme Court came down on the side of including those factors as prohibited factors. There is some concern in those communities that this may change with the current Supreme Court. I really don't think that's going to happen. In this past term, there was a rather interesting case where they held that what is called reverse discrimination, where a heterosexual woman said she was discriminated against because she was not homosexual, that the Sixth Circuit had decided that such people should be held to a higher standard of proof than the more conventionally expected categories for discrimination. The Supreme Court, in what I think was a pretty early decision by Justice Jackson, came down unanimously in favor of saying, "No, discrimination is discrimination, and it doesn't matter what direction it's going in; it's wrong." So, I think that's going to reinforce Bostock rather than lead to its demise. That being said, you have to think about what kind of bathroom policies your state has. Certainly, some of the student-athlete issues have been difficult, and for certain categories of employers like school systems, colleges, and universities, that's going to be a bigger consideration than it will for most others. But you might also need to think about local municipal ordinances. I think North Carolina several years back had its own bathroom law. When North Carolina had the restroom issues, the employer could take the position that theirs is a private place and not a public one, so they're not subject to the rules that govern public restrooms. Sorry about that, my telephone had a call coming in, and I'm sorry it went out. Do you want to add to that, or shall we choose another topic, Sheri? What do you think?

Sheri Oluyemi (35:29): We can move on to another. It's still discrimination, but this one covers pay equity. As you know, the Pay Equity Act is also enforced by the EEOC, and it simply requires that men and women receive equal pay for equal work. This is something that employers may organically find themselves out of compliance with, not because of any policy to discriminate between the sexes, but just because of how recruitment and hiring have happened. Some statistics say women are less aggressive in negotiating salary than men, so over time, you may find that there has become some pay disparity in your workplace. Here, it is important to conduct an audit periodically.

Elizabeth K. Dorminey (36:21): I'm not completely sure what happened there. Technology continues to amaze me, but we seem to have lost Sheri, but perhaps we'll get her back. On the topic of pay transparency, it's just a reminder that in your self-audit process, it's a good idea to just look through the different categories of employees you have and make sure that you don't have any strong disparities between the sexes or the races or anything like that, or any other kind of prohibited factor that shows differences in earnings. Of course, you have to be sure you're comparing apples to apples and that you're not comparing a salesman with 10 years of experience to somebody who's just begun. Anyway, moving on, I wanted to touch on immigration enforcement and I-9s. That's not strictly speaking a discrimination issue, although it can be. The reason is because the Immigration Reform and Control Act, which was adopted back in the 1980s, did have a strong element of anti-discrimination built into it. They wanted to be sure that people were not being discriminated against on the basis of their nationality. So, when they adopted the rules that require I-9s, they limited the documentation that employers can look at to decide whether somebody has provided good information on the I-9 form. There have been workplace raids. This is a big concern for a lot of employers, and I think it's safe to say that it's fairly unsettled yet how that's all going to work out. But anyway, let's just remember that when you audit, be sure that you're not asking for too much information; that can be as problematic as asking for too little. It's a good idea to go through and check and be sure that you do have the appropriate paperwork for all of the employees that you have on your payroll. Okay, are you there? Yay!

Sheri Oluyemi (38:54): I am. Thank you, Betsy. I don't know what happened. I got kicked off our webinar, but I'm back. Thank you for closing up that discussion on pay transparency and taking us through I-9s. Yes, we have come to the Q&A section. It's 12:42, so we only have a couple of minutes left. The floor is open, and what I love about these webinars is that it's an intimate group, so we can take your questions. If you would raise your hand with the button on your screen, I can unmute you, and you can ask your question to the group, or you can pop it in the Q&A box or the chat, and we'll be happy to answer those questions as well. Also, you would have our contact information from where you registered for this webinar, so you can email Betsy and I and ask your questions if you don't want to ask them here. One thing I'll say before we start answering questions is, of course, this is not legal advice. We're not going to evaluate the entire scenario that you may have going on behind your question. We will just give you legal information based on the limited facts that you may put in your question. So, I'll invite you to ask away.

Elizabeth K. Dorminey (40:19): While we wait for hearing from anybody, is there anything else you think would be worthwhile to add here, Sheri?

Sheri Oluyemi (40:24): I was just going to talk about posters. That's another checklist item. Every employer should ensure they have up-to-date posters. There are a plethora of them right now: the NLRB, the EEOC, and the FLSA. Make sure you are getting your posters updated as appropriate, either directly from the government websites or if you have a service provider, a vendor who is providing the posters. Make sure you have that order on a recurring charge so it comes in the mail, and you don't even have to think about it. And then, of course, make sure that the posters get posted in a conspicuous place, right, Betsy?

Elizabeth K. Dorminey (41:11): Oh yes, break rooms are good, but you should probably make sure that whatever posting mechanism you use is for the exclusive use of the employer. You don't want to provide too much of an opportunity for other postings to get in the way of having your messages conveyed.

Sheri Oluyemi (41:33): Correct. And then there are other notices that should go in with your application process. For example, if you're doing a background check, there is a notice under the FCRA. Make sure that notice goes out to the potential new hire with the new hire package or the request for a background check. We do have a question. It is from an anonymous attendee, and I'll read the question out. It says, "Is it ever appropriate to terminate employment while an employee is out due to a workers' compensation injury? Should you wait until they reach maximum recovery before eliminating their position?" Betsy, you're a lucky winner.

Elizabeth K. Dorminey (42:14): Well, you know, I wish our colleague Tom Walker was on the call today because Tom is our resident workers' comp specialist. I think that it's probably best to wait on those things until you get something resolved unless you have a scenario where you can definitively establish that you would've taken this action even if this person were not on workers' comp. For example, if you're closing an office or a division, you can make a strong case that this job would've been eliminated notwithstanding the workers' comp case. The workers' comp is a little trickier. For example, under the ADA, employers might be able to tell a normal employee who is not on workers' comp that they need to be able to come back to work with no restrictions. You can have a requirement to assign somebody to light duty under workers' comp that is not going to be available to an employee who does not have a workers' comp injury. I think that's a question for Tom, really, to answer best, but my general sense is that it would be more prudent unless you know that you would've taken that action irrespective of the workers' comp claim, not to do it until they're back to work or have reached maximum improvement.

Sheri Oluyemi (44:05): I would agree with you, Betsy. If that decision would've been taken to eliminate the position and if it is a bona fide job elimination, you should be okay. Although, to be more risk-averse, if you can wait, I think you should. I get this question a lot on the FMLA scenario, and I also defer this workers' comp question to Tom Walker at our firm. In the FMLA setting, I tend to tell the employer, "If this is a bona fide job elimination that would have taken place regardless of the fact that this employee is out on FMLA, you can terminate their position. It only becomes effective on the date that they return. So, if they have health and medical benefits, you maintain it through the FMLA period. But the effective date of the job elimination and the termination is the date that they return to work." That's how I would answer it in the FMLA setting.

Elizabeth K. Dorminey (45:20): Please feel free to contact us directly if there's anything that you want to follow up on or if you have other questions. We're always glad to hear from folks and will continue to provide these webinars to help keep you up to date. As Sheri said at the beginning, Jim Wimberley is a prolific source of all employment-related news. I presume most of you who are on this call are signed up for our firm newsletters and alerts, so we'll try to keep you posted as things change, which they always do.

Sheri Oluyemi (45:55): On that note, we thank you for spending your Friday lunch hour with us. We will be with you offline if you have any questions via email or telephone. Again, I'm Sheri Oluyemi. It has been my pleasure. And Betsy, thank you for co-hosting with me and covering for me when the internet decided it wasn't going to cooperate. We hope you all have a great weekend.

Elizabeth K. Dorminey (46:23): All right, thank you very much, Sheri. I appreciate it.