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Equal Employment Opportunity (EEO) Compliance FAQs

Q: What organizations are covered by federal laws?
Q: Are overseas workers covered by federal EEO laws?
Q: What happens when a charge is filed against our company?
Q: Should we consider mediation as an alternative to the traditional investigative process with EEOC?
Q: Is the employer liable for the improper actions of harassment by a supervisor?
Q: How can we prevent a retaliation charge?
Q: Do the use of employment tests during the selection process to screen applicants for hire and employees for promotion create a liability?

Q: What is the ADAAA?
Q: Can someone be harassed by someone of the same sex?
Q: With respect to retaliation, what is protected conduct?
Q: What is GINA?
Q: What specifically is prohibited in GINA with regard to genetic information discrimination?
Q: What is genetic information?
Q: What are the rights of an employee in the reserves?
: How do we refer to an individual with a disability?
: What types of questions can you ask about accommodations for an individual with a disability?

Equal Employment Opportunity (EEO) Compliance FAQs

Q: Are overseas workers covered by federal EEO laws?
A: American workers employed by U.S. companies overseas enjoy the same broad protections as workers in the U.S. That means protection under the anti-discrimination laws travels with the employee, so long as the employee is a U.S. citizen working for a U.S. company.

Q: What organizations are covered by federal EEO laws?
Private employers, state and local governmental agencies, and labor organizations (who operate hiring halls) with more than 15 employees/members who worked for th eorgnaization for at least twenty calendar weeks are covered by most federal EEO laws. For age discrimination, private employers are covered if they employ 20 ore more workers; however, state and local government agencies are covered by the law no matter how many employees it has. There are no employee minimums for coverage under the Equal Pay Act. An employment agency is covered if they regularly refer employees to employers regardless of the number of employees are in their workforce.

Q: What happens when a charge is filed against our company?
 You will be notified by EEOC within 10 days that the charge has been filed.  You will be given the name of the investigator assigned to the case and offered the opportunity to resolve the charge early in the process.  This may be accomplished through a settlement or through mediation, both of which are voluntary resolutions. Failure to resolve the charge will lead to the investigation stage, whereby you will be asked to submit a statement of position. The statement of position should address the items requested by the EEOC and provide a defense to the allegations.  EEOC will then make a determination on the merit of the charge.

Q: Should we consider mediation as an alternative to the traditional investigative process with EEOC?
A:  When deciding whether or not to use mediation, consider the following:

Mediation has been a successful and efficient way of resolving charges of discrimination. In many instances, charging parties file discrimination charges to get "their day in court". The mediation process allows both parties the ability to address the allegations openly.  In FY2007, EEOC’s National Mediation Program secured 8,649 resolutions and more than $124 million in monetary benefits for complainants from resolutions.

Q: Is the employer liable for the improper actions of harassment by a supervisor?
A:  There is automatic liability for harassment by a supervisor when the behavior results in a negative employment action (loss of wages, hours, opportunities, failure to hire or promote, or termination) against the impacted employee/applicant.  If the harassment results in a hostile work environment, strict liability can be avoided if the employer can demonstrate that it exercised care and acted reasonably to prevent (by disseminating the company policy and conducting training) and correct (through a prompt investigation) the harassing behavior.  The employer must also prove that the employee failed to take advantage of opportunities to prevent or avoid harassment as required by the company policy.

Q: How can we prevent a retaliation charge?
A:  Warn your supervisors and managers that they cannot take an adverse action against an employee after he or she has participated in protected conduct. Typically an adverse action would include demotion, harassment or termination but due to a recent Supreme Court decision, does not have to be confined to employment or occur at the workplace if it is enough that a reasonable person would be less likely to complain about discrimination as a result. "Protected conduct" includes all aspects of trying to oppose or remedy discrimination, including:

To bring a claim of retaliation, an employee must establish the connection between the behavior and the retaliatory response.

Q: Do the use of employment tests during the selection process to screen applicants for hire and employees for promotion create a liability?
In short - they could.  The use of tests can be an effective means of determining the best qualified candidate for a particular job.  These tests may include cognitive tests, physical tests, job task tests, English proficiency tests, personality tests, medical examinations, credit checks, and criminal background checks.  Employers need to beware that tests may discriminate based on race, color, sex, national origin, religion, age, disability or any other characteristic protected by law violate federal and state anti-discrimination laws if they disproportionately exclude people in a particular protected group.  With respect to scoring tests, Title VII says that employers are not permitted to: (1) adjust the scores of, (2) use different cutoff scores for, or (3) otherwise alter the results of employment-related tests on the basis of race, color, religion, sex, or national origin.  Title VII also prohibits employers from using neutral tests that have the effect of disproportionately excluding persons based on a protected characteristics, where the tests or selection procedures are not "job-related and consistent with business necessity".

  • All proceedings are voluntary, confidential and are be handled by trained and neutral mediators who are not employees of the government.
  • All parties have an equal say in the process and decision on settlement terms.
  • Notes are taken but destroyed after mediation in the event that mediation fails. Information disclosed during mediation will not be revealed to anyone, including EEOC investigators.
  • If a resolution is negotiated, the charge is dismissed.
  • If mediation is unsuccessful, the charge is investigated like any other charge.
  • Filing a charge of discrimination
  • Threatening to file a charge
  • Complaining about, opposing or protesting perceived discrimination
  • Assisting another person in opposing discrimination
  • Giving evidence or testimony to an investigator
  • Refusing to engage in conduct that the person believes to be unlawful
  • Refusing to assist the employer in discriminating
  • In 1978, the EEOC adopted the Uniform Guidelines on Employee Selection Procedures to assist employers determine if their tests and selection procedures were lawful.  These methods of demonstrating job-relatedness are called "test validation".  Employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are being used.  The test or selection procedure must be job-related and its results appropriate for the employer's purpose.  While a test vendor's documentation supporting the validity of a test may be helpful, the employer is still responsible for ensuring that its test are valid under UGESP.

  • EEOC v. Ford Motor Co. and United Automobile Workers of America (December 20, 2007) - settled with a court-approved agreement on behalf of a nationwide class of African Americans who were rejected for an apprenticeship program after taking a cognitive test known as the Apprenticeship Training Selection System (ATSS).  Ford agreed to pay $8.55 million in monetary relief and replace the ATSS with a selection procedure designed by a jointly-selected industrial psychologist, that would predict job success and reduce adverse impact.  ATSS was a written cognitive test that measured verbal, numerical, and spatial reasoning in order to evaluate mechanical aptitude.  Even though the ATSS was validated in 1991, it continually showed to have statistically significant disparate impact by excluding African American applicants.

Q: What is the ADAAA?
A: The ADAAA is the Americans with Disabilities Act Amendment Act of 2008.   Even though the Act does not change the definition of a disability it changes the way it should be interpreted.  Specially:

  • It rejects the Supreme Court's interpretation of "substantially limit".  Under these cases physical and mental impairments are not considered a disability under ADA if the impairment is controlled by either medication or assistance devices, or do not prevent or significantly restrict an individual from performing a major life activity (walking, talking, hearing, working, etc).  EEOC is charged with revising the definition of "substantially limit".
  • Employers no longer may take into account mitigating measures (such as hearing aids, medications, prosthetics, mobility devices) when determining if someone has a disability; with the exception of eyeglasses and contact lenses.
  • It expands the definition of "major life activities" to include caring for oneself; performing manual tasks; seeing, speaking, breathing, learning, reading, concentrating, thinking, communicating, working and the operation of a major bodily function, such as  immune system, normal cell growth and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
  • The "substantially limits" requirement has been removed from the "regarded as" prong.  Someone with an impairment can be regarded as having a disability, even without the perception that the impairment limits a major life activity, assuming that the impairment is of actual or expected duration of six months or more.  "Regarded as" disabled employees are not entitled to reasonable accommodations.
  • Impairments that are "episodic or in remission" can be still considered to be disabling if, "when active," they substantially limit a major life activity.  ADAAA prohibits "reverse discrimination" claims whereby employees without disabilities cannot sue by claiming that an employer rejected them in favor of other individuals with disabilities.

Q: Can someone be harassed by someone of the same sex?
Yes it is possible to have a claim for male on male or female on female harassment. In a unanimous Supreme Court decision in the case of Oncale v. Sundowner Offshore Services, Inc. the court concluded that it depends on whether the conduct would have occurred if the victim had been of a different sex. Neither the sexual orientation of either the harasser or the victim nor the intent of the harasser is irrelevant as harassment is not always motivated by sexual desire.

Q: With respect to retaliation, what is protected conduct? 
"Protected Conduct" includes any behavior or activity relating to the opposition or prevention to remedy discrimination.  Examples include:  filing a grievance, complaint, or formal charge of discrimination; complaining about, opposing or protesting either perceived or alleged discrimination against oneself or another employees; helping another employee in opposing discrimination; giving evidence or testimony to someone investigating an allegation of discrimination; refusing to engage in conduct that is believed to be discriminatory or unlawful; and refusing to help an employer in discriminating; requesting or taking medical leave (under FMLA) or protesting an employer's refusal to allow the employee to take leave.

Q: What is GINA?
GINA is the Genetic Information Nondiscrimination Act of 2008. Title II of GINA, which took effect on November 21, 2009, prohibits genetic information discrimination in employment.

Q: What specifically is prohibited in GINA with regard to genetic information discrimination?
Title II of GINA, prohibits the use of genetic information in making employment decisions, restricts the acquisition of genetic information, and limits the disclosure of genetic information. An employer may not disclose genetic information about applicants or employees and must keep all information confidential. Genetic information may be kept in the same file as other medical information in compliance with the Americans with Disabilities Act.

Q:What is genetic information?
Genetic information is any information about an individual’s (or individual’s family members) genetic tests or information about a disease, disorder, or condition, including medical history about the individual or individual’s family member.

Q:What are the rights of an employee in the reserves?
Reservists are protected from discrimination of any kind, as it relates to the employee’s military service, by the Uniformed Services Employment and Re-Employment Rights Act (USERRA). A reservist who is called to duty must provide you with advance notice of their orders, either in writing or verbally, unless it is military necessity and requires immediate deployment. Your company can request that the reservist’s duty be deferred but the military authorities will have the final decision. Upon return from service, you must reinstate the reservist’s employment. Questions pertaining to reservist’s rights can be posed to the National Committee for Employee Support of the Guard and Reserve (ESGR) at (800) 36-4590 or www.esgr.org.

Q: How do we refer to an individual with a disability?
Use "people first" language such as "person who is blind" instead of "the blind person."

Q: What types of questions can you ask about accommodations for an individual with a disability?
 You can ask the following: (1) Can you perform the job with or without an accommodation? (2) Can you describe how the accommodation requested will assist you in accomplishing the tasks of the job?  You cannot ask the following (1) Will you need an accommodation to perform this job? (2) How much will that accommodation cost?

Position, Performance Management and Related Fair Labor Standards Act (FLSA) Compliance Issues FAQs

Q: Would you change an exempt position for a part-time employee to a non-exempt position because you are paying them hourly?
A:With the exception of certain positions (e.g. teachers), paying on a salary basis is one of the three criteria for classifying a position as exempt. Your company can maintain the exempt status by continuing to pay the employee on a salary basis that as been prorated to account for the reduction in hours. If you want to pay on an hourly basis, the position becomes non-exempt.

Q: How is the exemption for positions in the computer field different than for other positions?
A: The computer employees professional exemption applies to computer systems analysts, computer programmers, software engineers, and other similarly skilled workers in the computer field whose primary duties consist of:

  • The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;
  • The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;
  • The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or A combination of the aforementioned duties, the performance of which requires the same level of skills.
Computer employees meeting the above criteria regarding their job duties are compensated either on a salary basis at the rate of not less than $455 per week or on an hourly basis at a rate of not less than $27.63 per hour. 

Q: Do we have to pay our employees extra for working nights, weekends, or holidays?
A: You do not generally need to pay non-exempt employees overtime unless they have worked in excess of 40 hours during the workweek.  Some states do require that employers pay at least time and one-half for employees who work on certain holidays.

Q: How do we determine the hourly rate for a salaried, non-exempt employee? 
For salaried non-exempt employees who are not paid a regular hourly rate because they are paid on a salary or commission basis, you use their total compensation to derive their hourly rate.  The hourly rate is computed by dividing the salary by the number of hours the salary is intended to compensate.  As an example, if the employee is paid $500 for a workweek of 40 hours, their hourly rate of pay is $12.50.  Thus if they work overtime you would have to pay them $18.75 per hour (one and one-half of $12.50).

Q: For exempt employees, can we deduct for partial-day absences? 
Making deductions for absences of less than a day jeopardizes the exempt status.  It is safer to require exempt employees to use paid leave for partial day absences.  The Department of Labor has considered this action to be permissible since you are not reducing the employee’s compensation. 

Q: What is the difference between an employee and an independent contractor?
An independent contractor is typically someone who works for more than one company.  Employers are not required to withhold income or Social Security taxes or pay unemployment or other state or local taxes on independent contractors.  If you can answer “yes” to the following questions typically asked by the IRS, then you can be assured that you have hired an independent contractor:

1. Does the worker set his or her own hours?
2. Who makes the rules for how and where the work will be done: employer or worker?
3. Does the worker furnish his or her own tools and equipment and hire his own assistants if needed?
4. Does the person have a workplace (home office, for example) that's separate from the employer's premises?
5. Can the individual work for other companies?
6. Is the worker paid on a per-job or a commission basis?
7. Does the person send you invoices for his services?
8. Is there a written "independent contractor" agreement between worker and employer?

Q: If we have mandatory training held on Saturday, do we have to pay our employees?
A: Unless all of your employees are exempt, it is illegal for you to require employees to attend training without compensation, regardless of the day. Further, if Saturday is not a regular workday, every non-exempt employee who attends the training must be paid at a rate of 1.5 times their regular salary for their attendance.

Q: What is a benchmark job?
A: A benchmark job is either a job commonly found in the labor marketplace and/or a job that is highly relevant within a company. Benchmark jobs are used in job evaluations to slot other company jobs around and are also used as a basis for establishing pay programs.

Q: What is compa-ratio?
A: A compa-ratio provides an employer with a benchmark to determine how close actual pay rates compare to the company defined midpoint of a pay range. A compa-ratio is the average of employee actual pay divided by the range midpoint.

Q: Can a person fill both employment roles, as an employee and independent contractor at the same company at the same time?
According to the IRS, the possibility could occur.  When evaluating work classification, the IRS reminds us that it looks at the specific duties and behavior for each role that plays on its own.  Therefore, an individual could be working for your company in one department in a capacity that makes them an employee but can also work for another department in the capacity of an independent contractor. Already being an employee isn’t an automatic knockout factor for independent contractor eligibility and vice versa.

To assist in the proper classification, here are the factors you need to consider:
  • Behavioral: Does your company control or have the right to control what the worker does and how the worker does his or her job?
  • Financial: Are the business aspects of the worker’s job controlled by your company? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.), and
  • Type of Relationship: Are there any written contracts or employee type benefits (e.g. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?

General Human Resources Compliance FAQs

Q: Is it okay to have a probationary period for new employees?
A:  Unless the employee is hired under a collective bargaining agreement, probationary periods jeopardize the "at-will" status. The employment at-will doctrine allows for the employer and the employee to end the employment relationship at any time without notice or reason. Most employers have probationary periods to see if the employee can be successful in their job during a training period. Probationary periods typically identify a time in which the employee can be fired if they are not successful, e.g. 90 days. This implies that after the time period an employee cannot be terminated without cause.  Since the at-will doctrine indicates that an employee can be terminated at any time with or without cause, some courts have stated that probationary periods void the at-will doctrine.

Q: What factors should I consider in deciding on the content for a diversity training program?
A: We find that training is most effective when three criteria are met:

  • There is a specific business-related outcome in mind.
  • The training is part of a strategy, not an isolated event.
  • There is a support structure in place to help ensure that participants practice and use what they learn.

It may be helpful to think about how you would convince your CEO to support the training, participate in it personally, and advocate that the entire senior leadership team also participate. The training should provide knowledge, skills, competencies, or tools that will make participants more effective in achieving the CEO’s key business objectives.

Think about what your CEO’s key business objectives mean in terms of your organization’s employees. What do they need to be their best and most effective? Chances are that this will lead you to the specific business-related outcome for the training.

Once people have participated, they need encouragement to use what they have learned. Effective diversity and inclusion training is about effecting culture change. Consider how annual objectives are set, what behaviors are needed to support the training, and how performance is measured. These are key levers for providing the structure needed to sustain the learning.

Q: What does Employment-at-Will really mean?
The Employment-at-Will doctrine says that when hired, the employee and employer enter into a contractural relationship which may be terminated by either party at any time and for any reason.  Essentially, an employer can terminate an employee for any or no reason, so long as the reason is not illegal, such as violating anti-discrimination laws.  Union employees and other employees covered under an employment contract, are not covered by the at-will doctrine.  Employees should beware of oral or written contracts that may also jeopardize at-will.  Employee handbook may also be viewed as contract, so ensure that you include disclaimers and at-will statements to protect your organization.

Q: What is E-Verify?
A:  E-Verify is short for Employment Eligibility Verification Program, a system that allow employers to voluntarily verify the employment eligibility of employees electronically over the internet.  E-Verify is operated by USCIS (Citizenship and Immigration Services) and DHS (Department of Homeland Security), in partnership with the SSA (Social Security Administration). 

How E-Verify Works

The verification process consists of the following steps:

  • Employee and employer complete Form I-9 (Section 1 - no later than the first day of work; Section 2 - no later than the third day of work)
  • Employer submits an initial query to E-Verify by uploading the information from the Form I-9 no later than the third business day after the employee begins work.
  • E-Verify checks SSA and DHS' immigration databases.
  • E-Verify responds with Employment Authorized or Tentative Non-Confirmation
  • Employer notified an employee of a Tentative Non-Confirmation response, if applicable. (Employee may continue working until final determination is received.)
  • Employer submits any new information provided by employee.
  • Final determination of legal authorizaiton to work. 
Q:  Do any states require the use of the E-Verify system?
A: The following states now require certain employers and state agencies to verify the employment eligibility  of new hires by using the E-Verify system: AK, AZ, CO, GA, MO, MS, OK, SC, and RI.  Additionally, 
  • TN  encourages employeers to use E-Verify
  • ID, MN, NC, PA and UT mandate that state agencies must it it
  • CA, CO, FL, IA, IL, IN, KS, MN, MO, NJ, PA, RI, TN and WV  are considering new immigration laws involving E-Verify.

Q: What is the difference between the old and revised Form I-9?
A: All documents presented in the verification process must be unexpired.

The following documents have been added to acceptable List A:
  • Temporary I-551 printed notation on a machine-readable immigration visa in addition to the foreign passport with a temporary I-551 stamp
  • A passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with a valid Form I-94 indicating nonimmigrant admission under the Compact of Free Association between the U.S. and the FSM or RMI.
The following documents have been removed from List A:
  • Form I-688, Temporary Resident Card
  • Form I-688A, Employment Authorization Card
  • Form I-688B, Employment Authorization Card.

Q: Should we develop job descriptions?
A:  Having job descriptions is important for several reasons: (1) the employee is aware of the company’s expectations of them in performing their job and (2) the job requirements are clearly articulated and understood by anyone needing to know about the job. When recruiting to fill the position, the job description can be used to develop the job posting; tell the applicant exactly what you want from them; and assist the hiring manager evaluate and select the best qualified candidates. Job descriptions should be an integral part of the performance management and evaluation system.

Q: How often should we update our job descriptions?
A:  At least annually, job descriptions should be reviewed to determine if any factors have changed, been added or deleted. It is important that the job description accurately reflect the position requirements so that those persons using the job description understand the expectations of the positions. Inaccurate or out-of-date job description can hurt the company with misunderstood expectations which may cause liability in a discrimination or wrongful discharge case. Accurate job descriptions inform, articulate, communicate, and help align performance.

Q: What should be included in the job description?
A:  A good job description begins with a careful analysis of the important facts about a job. The analysis process should include identifying the tasks involved in performing the job, the methods used to complete the tasks, the purpose and responsibilities of the job, the relationship to other jobs, and the qualifications needed to perform the job. Job descriptions should then articulate the job duties, specifications, responsibilities, expectations, and knowledge and skill qualifications, reporting relationships, and working conditions. Major (or essential) and minor job functions should be identified separately. Essential job functions are those they are necessary to accomplish the central purpose of the position. In the Americans with Disabilities Act, 42 U.S.C. §12112, covered employers must provide reasonable accommodations to enable otherwise qualified individuals with disabilities to perform their essential job functions.
According to guidance from EEOC, employers should also be careful to focus on the major or minor functions of a position as opposed to recommended methods of performance when more than one acceptable method exists. For example, a job description that includes a requirement to "lift" up to 70 pounds of equipment could be restated as a requirement to “move” up to 70 pounds of equipment. The basic function to be accomplished is the transport of the equipment. The revised description communicates this basic function and does not exclude individuals with disabilities who could only move items with a reasonable accommodation like a cart or a dolly.

Q: When writing job descriptions, are there tips to avoid?
A:  Do not: (1) use past tense, (2) simply list the job duties, (3) forget the why, how, where or how often questions, (4) use biased appearing terminology or set any requirements based on race, gender, age, religion, national origin or any other protected characteristic, (5) identify any qualifications that are not bona fide qualifications for the position, and (6) use words that may unclear to the reader – "some", "frequently", "complex".

Q: How are career development plans and performance improvement plans different?
A:  The career development plan is designed to assist the employee in enhancing their performance, skills, or abilities. A development plan seeks to help the employee grow developmentally to further their career opportunities or broaden their knowledge base.
Alternatively, a performance improvement plan addresses performance issues that are typically addressed in a performance evaluation. An improvement plan identifies the performance, skills, and abilities that need to be corrected or enhanced and sets up guidelines with goals and timelines for meeting the plan.

Q: Are employers allowed to electronically store I-9 forms?

A:  Yes, according to PL 108-930 amending the Immigration and Nationality Act, employers are allowed to maintain electronic signatures and electronic storage of I-9 forms.  These forms are used to verify an employee's identity and to establish that the worker is eligible for employment.  The regulations also require the following:

  • The employer must develop data storge and inspection procedures which include an indexing system.  The electronic storage procedures should identify the controls in place to ensure the accuracy, integrity and reliability of the stored documents. It should also identify how it will prevent and deter unauthorized or accidental alteration or deletion of the stored documents.
  • The system must have backup and recovery features to prevent the loss of data.
  • Only authorized personnel may have access to the system and they must be trained to minimize the risk of alteration or deletion of records.
  • The employer must maintain a "secure and permanent record" of the employees who have access to the system.
  • If using an electronic system, the system must record the time, date and identify of the signature, as well as have some form of attestation prior to the signing.  Employers should document the methodology use to obtain this information and be able to produce it when requested by an auditor.