“Essential” has taken on a whole new meaning as our country faces the COVID-19 pandemic. As more of the country goes into necessary “lock-down,” businesses are broadly divided into “essential” and “non-essential” categories, and employees are similarly divided by the functions they serve in those businesses.
Some businesses are, or will be, deemed essential or not, and may be required or not allowed to operate entirely based on that distinction. Many more live in a netherworld in which some of the business’ functions might be essential and required to continue operations, while other functions are deemed non-essential, meaning otherwise capable and willing employees may not be allowed to work. Still other businesses find themselves in a situation in which their physical workspaces are required to close, but the business itself is allowed to continue to operate to the extent that employees can carry out their functions remotely, usually from home.
As the patchwork of local, county, city, state, and federal laws, orders, directives, and recommendations are being sorted through, it can be difficult to impossible for individual employees to determine whether and for how long they might remain employed. Employment law compliance professionals are no exception—they fall into that space where, so long as there is work to be done and that work can be accomplished safely, they can continue to do it.
Businesses making tough choices in the coming days, weeks, and months should consider their compliance personnel “essential” for several reasons.
First, the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP) have both made public announcements that these law enforcement agencies are still in business. They are still enforcing the law, still investigating claims, and still auditing. In fact, these two federal agencies, the Department of Labor more broadly, and presumably myriad state and local counterparts, are actively watching how employers handle the challenges they are facing from an employment law perspective.
Asian-Americans are reporting ever-increasing incidents of harassment in their communities and the EEOC and the OFCCP are acutely aware that such behavior is likely to bleed into the workplace. As workplaces empty out of people who can work from home, those employees can be even more vulnerable with fewer people around and less oversight.
Many employers are facing potential mass layoffs and reductions in force that, if not handled properly, could have legal consequences at a time when those businesses have even fewer resources to litigate and/or settle termination discrimination claims.
Still other employers may actually be staffing-up as they pivot to meet new needs, hiring large numbers of workers quickly—a possible recipe for disastrous EEO shortcuts. Again, with the OFCCP and the EEOC watching, this could lead to potential litigation at a time when businesses have limited resources for resolution.
Compliance programs are the front line in preventing harassment and ensuring that termination and selection processes are non-discriminatory. Robust affirmative action programs can significantly bolster an organization’s defense against claims of unfair treatment. And those EEOC investigations and OFCCP audits are going to keep coming.
Compliance professionals may very well prove to be even more “essential” in times of crisis and chaos, as EEO and AA obligations are possibly minimized or avoided when they are most needed.
Executive leadership will look to their legal teams to navigate the landscape as this crisis unfolds. Smart legal teams will leverage their compliance professionals by including them in planning and decision-making. They have the biggest wealth of institutional knowledge regarding their organization’s human capital and where legal risks are likely to be higher or lower, and are the most adept at analyzing organizational risk through both qualitative and quantitative analyses.
This is not the time to cut compliance staff. This is the time to lean on them for help.
Biddle Consulting Group stands ready to support our compliance partners, but this is not a marketing pitch for our company. We know we are not the only resource our clients leverage, and I think I can confidently speak for everyone in this space when I say we see you, and we are here to support you.