EEOC Roundtable

Last week, I reported that the Equal Employment Opportunity Commission (EEOC) had held its last listening session on its proposed strategic plan. The listening session included comments from multiple parties, including the Society for Human Resource Management (SHRM). As I mentioned last week, there was discussion at the outset about providing access to the strategic plan through a publication on the Federal Register due to a lack of comments (none) in the EEOC’s listed email box and a concern regarding accessibility. (I’ll let you know when I finally find it.) Ultimately, it was determined that the item would be considered at another point so the feedback for the planned session could proceed. We will be monitoring this item for potential updates.

There were multiple items discussed in this listening session which would normally be
considered under the EEOC’s jurisdiction, but a few items were repeating themes. One item
was the use of artificial Intelligence (AI) in the selection of candidates for employment. As we have reported previously, the EEOC and OFCCP conducted a prior roundtable session on AI. The discussion around AI in the strategic plan listening session revolved around both the employer and the vendors who create AI technology, and the importance of not eliminating qualified applicants.

Another theme regarded the use of temporary employees. Specifically, in some cases
Temporaries were being used long-term, and in other cases, temporary employees had no assurance and were easily reassigned without being given a specific reason other than that there was no work available. One commentor stated that when temporaries experienced EEOC violations, that often the temporary was reassigned instead of the issue being addressed. Another commenter suggested that temporary employees could potentially be counted in EEO-1 report.

Also, important to know is that on the heels of the items discussed related to the EEOC’s
proposed strategic plan, the Department of Labor (DOL) just published its proposal to rescind a 2021 (Rule 1C) regarding the independent contractor classification and additional modification in the Federal Register. The 2021 Rule 1C provides for a weighted factor system within which two of five economic reality factors were given greater weight. The Federal Register proposes that the factors should have equal weight.

Given the recruitment and retention challenges employers are currently experiencing, some
employers have had to consider using different resources for getting work done and will want to remain informed on potential changes to regulatory issues surrounding temporary
employees and independent contractors. We will be monitoring the web on this subject and
many other employment subjects. If you would like to learn more about our compliance-related expertise, contact SWHRC today!