Wage Theft Legislation Advances in Congress

A committee in the House of Representatives approved legislation designed to prevent wage theft and enable those impacted by it to recover lost wages. The Justice Department issued guidance on the use of artificial intelligence in making hiring decisions and the possible impact on people with disabilities. The Labor Department updated guidance on the availability of  FMLA leave to address mental health conditions. Two recent studies detailed the positive feedback from both charging parties and respondents who used the EEOC’s online mediation programs.

House Committee Approves Wage Theft Prevention Bill – The House Committee on Education and Labor has approved the Wage Theft Prevention and Wage Recovery Act (H.R. 7701) that was introduced by Representative Rosa DeLauro (D-CT) along with 45 cosponsors. According to Representative DeLauro, this bill is “comprehensive legislation that will strengthen current federal law and empower employees to recover their lost wages.”

According to the sponsors, the legislation would:

  • Strengthen workers’ rights to fair pay and improve employer accountability through such measures as requiring employers to provide employees with a disclosure of the terms of their employment and regular paystubs, requiring employers to pay all wages owed to an employee, and mandating that employers pay final paychecks by the earlier of within 14 days of separation or by the payday for that pay period.
  • Increase deterrence and punish wage theft violations by creating civil penalties when employers violate minimum wage and overtime provisions, triple the owed wages that wage victims are entitled to from the current level of twice the owed wages, strengthening protections for workers who are illegally retaliated against, and enhancing enforcement for egregious violations by referring those employers for possible criminal prosecution.
  • Bolster recovery of stolen wages by increasing the rights of workers to take collective action to recover their wages by removing the Fair Labor Standards Act (FLSA) requirement that employees’ opt-in to lawsuits brought under the FLSA and strengthening recordkeeping requirements.

The bill must be considered next by the full House of Representatives. A companion bill (S. 4174) has been introduced in the Senate by Senator Patty Murray (D-WA), chair of the Committee on Health, Education, Labor, and Pensions.

Justice Department Issues Guidance on the Use of AI – The U.S. Department of Justice released guidance about possible disability discrimination in violation of the Americans with Disabilities Act (ADA) when employers use artificial intelligence and other software tools when making employment decisions. The Justice Department enforces disability discrimination laws with respect to state and local governments. The guidance, Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring is similar to guidance, The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees released recently by the Equal Employment Opportunity Commission (EEOC). 

The document notes that employers are increasingly using hiring technologies that can show job ads to targeted groups, review job qualifications of applicants, conduct online video interviews, score resumes, and use computer-based tests. While these tools may be useful, they can result in discrimination against certain groups such as those individuals with disabilities. The Justice Department advised that hiring technologies may unfairly screen out qualified individuals with disabilities. As an example, the Justice Department indicated that if a county government uses facial and voice analysis technologies to evaluate applicants’ skills and abilities, people with disabilities like autism or speech impairments may be screened out, even if they are qualified for the job.

Testing technologies, according to the Justice Department must evaluate job skills and not disabilities. Employers should use accessible tests that measure job skills and adjust the hiring process to avoid disability discrimination. The guidance includes the following example:   applicants to a school district with vision impairments may get passed over for a staff assistant job because they do poorly on a computer-based test that requires them to see, even though that applicant is able to do the job.

The ADA requires employers to provide reasonable accommodations to individuals with disabilities during the hiring process unless doing so would result in an undue hardship for the employer. For example, the guidance states, if a city government uses an online interview program that does not work with a blind applicant’s computer screen-reader program, the government must provide a reasonable accommodation for the interview, such as an accessible version of the program, unless it would create an undue hardship for the city government.

Labor Department Publishes Updated FMLA Guidance for Mental Health Conditions – The U.S. Department of Labor (DOL) issued updated guidance on job-protected leave available under the Family and Medical Leave Act (FMLA) due to mental health conditions. Under the FMLA, employees can take up to 12 weeks of leave for their own serious health condition or to care for a spouse, child, or parent due to a serious health condition, which can include a mental health condition. A parent may use FMLA leave to care for a child 18 years of age or older who needs care because of a serious health condition, if the individual is incapable of self-care because of a mental or physical disability. According to DOL, mental and physical health conditions are considered serious health conditions under the FMLA if they require 1) inpatient care or 2) continuing treatment by a health care provider.

DOL stated that a serious mental health condition that requires inpatient care includes an overnight stay in a hospital or other medical care facility, such as, for example, a treatment center for addiction or eating disorders. Continuing treatment for a serious mental health condition includes conditions that incapacitate individuals for more than three consecutive days requiring ongoing medical treatment or chronic conditions such as anxiety or depression that cause occasional periods when an individual is incapacitated and requires treatment at least twice a year.

Studies Find EEOC’s Online Mediation Programs Are Successful – Two studies evaluating the Equal Employment Opportunity Commission’s (EEOC’s) online mediation programs report satisfaction with the programs from both charging parties and respondents who find the program to be fair and neutral.

The study EEOC Mediation Participants Experience in Online Mediation and Comparison to In-Person Mediation found that 98% of employers and 92% of charging parties would be willing to participate in the mediation program again. Nearly 70% advised that they preferred online mediation to in-person mediation due to its flexibility, convenience, cost savings and providing a “safe space” for charging parties who may not want to be in the same physical location as the employer against whom they have filed a charge.

The second study, EEOC Mediators’ Perception of Remote Mediation and Comparisons to In-Person Mediation concluded that EEOC mediators believe online mediation to be both easier to use and more flexible than in-person mediation with similar or better quality settlements being achieved. The EEOC announced it will continue to offer online mediation as an option.

Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.