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New Rule Aims to Expedite Prior Authorization Requests

by Inoventive Solutions
January 30, 2024

The Centers for Medicare and Medicaid Services has published a final rule aimed at improving how prior authorizations are handled by health insurers. The measure primarily limits the time insurers have to approve or deny requests.

In addressing wait times for prior approvals, the CMS is targeting an issue that’s become a problem for some patients whose health can deteriorate while waiting for their doctor’s request for service to be approved.

Besides setting standards governing how long a health insurer has to approve or deny a request, the new rule also requires them to take steps streamline the prior approval process through technology.

The CMS said when announcing the final rule that it would improve prior authorization processes and reduce the burden on patients, providers and payers, resulting in approximately $15 billion of estimated savings over 10 years.

What the new rule does

Starting in 2026:

  • Insurers will be required to approve or deny an urgent prior authorization request for medical items and services within 72 hours of receipt.
  • Insurers will have seven calendar days to approve or deny standard requests for medical items and services. For some payers, this new time frame for standard requests cuts current decision wait times in half. 
  • Carriers must include a specific reason for denying a prior authorization request, which will help facilitate resubmission of the request or an appeal when needed.
  • To ensure that insurers will be able to handle the new time frames, the rule also requires them to implement a prior authorization application programming interface (API). The interface must facilitate a more efficient electronic prior authorization process between providers and payers by automating the end-to-end authorization process.

The takeaway

The new rule does not take effect until 2026 to give insurers and other payers more time to put in place API systems that can expedite the process.

The end result should be an improved experience for millions of insured patients nationwide, and that they get their requests handled in a timely fashion.

"workplace
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Workplace Age Discrimination Cases Grow Nationwide

by Inoventive Solutions
January 23, 2024

The Equal Employment Opportunity Commission continues seeing a steady flow of complaints for one of the more common forms of workplace bias — age discrimination.

The number of court filings the EEOC made under the Age Discrimination in Employment Act (ADEA) in fiscal year 2023 was more than double that of fiscal year 2022. As the EEOC steps up its efforts under the Biden administration, it’s crucial that employers have in place policies and employment standards to avoid any appearances of discrimination against workers based on age.

The ADEA prohibits harassment and discrimination on the basis of a worker’s age for individuals over 40. This extends to any aspect of employment, including hiring, job assignments, promotions, training and benefits.  

The law even applies to employers that use third party recruiters to screen job applicants, according to EEOC guidance.

For an idea of how costly an age discrimination lawsuit can be, consider the following recent actions (keep in mind that these numbers don’t include attorneys’ fees):

  • In March 2023, Fischer Connectors settled with the EEOC for $460,000 over accusations that the manufacturer fired a human resources director and replaced her with two younger workers after she had spoken up about company plans to replace other older workers.
  • In September 2023, two former IBM human resources employees — both over 60 — sued IBM after they were terminated, alleging age discrimination.
  • Wisconsin-based Exact Sciences agreed to pay $90,000 to settle a lawsuit alleging that it had discriminated against a 49-year-old job applicant based on his age after it turned him down for a medical sales rep position in favor of a 41-year-old.
  • A 52-year-old woman sued a Palm Beach restaurant, alleging violations of the ADEA and the Florida Civil Rights Act of 1992. She claims that after working for 10 years as a seasonal server, she was terminated on the grounds that the restaurant was moving to year-round employment, yet continued to hire young seasonal workers.

What you can do

Ageism in the workplace doesn’t just negatively affect employees. It also affects your company. Over the past 15 years, age discrimination cases have accounted for 20-25% of all EEOC cases — and they typically receive the highest payouts.

Ageism is bad for business in a number of ways. Not only do you risk a large settlement, but you also miss out on a large talent pool of older workers in your hiring practices. You also miss out on the major contributions that older workers can make to your organization.

To prevent age discrimination at your firm:

  • Train your managers and supervisors on age discrimination and that it won’t be tolerated. Have in place consequences (and follow through on them) for managers that discriminate against an employee due to any protected status, including age.
  • Consider taking out any sections of your application form that disclose information about an applicant’s age. Removing the date that an applicant graduated or completed their degree is helpful. This can allow hiring managers to focus on the skills and experience an applicant brings to the table rather than their age.
  • If you have to go through a layoff, ensure you don’t make any decisions based on age. You should focus only on two things during this process: making choices solely based on performance and the necessity of the position they hold. Even a seniority-based system is acceptable.

The takeaway and insurance

Often when the EEOC settles these cases, they will require the employer to sign a consent decree requiring them to implement age-discrimination training for hiring managers. You shouldn’t wait for an order by the agency to do the same.

Finally: In the event you are sued for age discrimination, if you have in a place an employment practices liability policy, it may cover your legal costs and any potential settlements or verdicts.

Besides age discrimination, these policies will cover a host of other lawsuits by employees.

"healthcare
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Employers Avoid Cost-Shifting, Focus on Reducing Employee Outlays: Study

by Inoventive Solutions
January 9, 2024

Despite group health plan inflation increasing again in 2024, a new study has found that employers continue staying the course in not shifting costs to employees who may already be overstretched by inflation and medical bills.

Instead, 64% of employers say they are looking for ways to boost their health and well-being offerings to better meet employee needs, according to Mercer’s “Survey on Health & Benefit Strategies for 2024 Report.” That’s on top of the 25% who said they had already enhanced their slate of benefits in the last two years to better attract and retain staff and meet employees’ needs.

With health care costs expected to jump 7% this year from the 2023 level and insurance premiums reflecting that increase, many employers will be challenged to balance benefit options with cost-controlling measures, according to the report.

 “Employers are looking to enhance benefits, but they need to do it carefully. Not by adding bells and whistles, but by looking for opportunities to add value,” Mercer wrote in its report. “Sometimes that means filling gaps in current offerings with more inclusive benefits. It might mean revisiting time-off policies to give employees more flexibility.”

With significant cost-shifting off the table for most employers, employers will have to get creative to meet the challenge of offering benefits that workers want and need, and health care they can afford, while also managing cost growth.

 

Addressing employee costs

Some tactics employers are using to boost affordability for their staff include:

  • Offering at least one free employee-only coverage in at least one medical plan.
  • Making larger health savings account contributions to lower-paid employees.
  • Using salary-based contributions, with lower-wage staff paying less than those earning more.
  • Offering programs to help employees manage specific health conditions.
  • Taking action to address the cost of specialty prescription drugs.
  • Focusing on virtual care.
  • Steering members to quality care with a navigation or advocacy service (beyond the health plan’s standard service).
  • Limiting plan coverage to in-network care only (in at least one plan).

 

Other benefit enhancements

Employers are also looking at enhanced benefit options, such as:

Support for women’s health — According to Mercer, 46% of employers plan to offer benefits or resources to further support women’s reproductive health, up from 37% last year.

This includes:

  • Preconception planning.
  • Menopause benefits (the percentage of employers planning to offer menopause support has more than tripled since last year’s survey).
  • Lactation help resources.
  • Post-partum depression resources.

 

Childcare benefits and resources — Employers can help support caregivers for the long term with flexible hours and family leave and time-off policies. Some employers also provide subsidized childcare benefits.

Increasing employee flexibility — More employers are also offering paid time off for all kinds of families (like those with LGTBQ parents). Other options being offered include:

  • Hybrid work options (80% of employers offer or plan to offer these),
  • Paid time off to volunteer (49%),
  • Remote work options (47%), and
  • Four-day workweeks or consolidated schedules (22%).

 

The takeaways

With group health plan costs continuing to increase amid a highly competitive job market, employers need to take a balanced approach to their benefit offerings, while being mindful of the increasing out-of-pocket expenses their employees may face when accessing health care.

Your decisions in also offering enhanced benefits will obviously be based on your budget, but also on your employee population. Call us to discuss options.

"mental
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More Employers Offering Wellness, Mental Health Chatbots

by Inoventive Solutions
January 2, 2024

As a record amount of U.S. workers struggle with mental health issues and stress, more employers are offering new chatbot apps to help them.

A survey this past summer of 457 employers by Willis Towers Watson found that 24% of them offer a “digital therapeutic” for mental health support.

Some 15% of the businesses surveyed were considering adding this type of offering in 2024 or 2025, the professional services company found. Typically, these apps are provided as a voluntary or wellness benefit.

Some apps feature chatbots that can hold counseling-type conversations with users, while other wellness apps can help diagnose depression or identify people at risk of harming themselves.

At the same time, these chatbots and other mental health apps have generated controversy, with some experts warning that they are not equipped to handle serious mental health issues and that they are no replacement for human therapists.

However, as long as there are not enough therapists in the U.S. to meet demand and artificial intelligence continues to evolve, it’s likely these chatbots are here to stay.

Examples

Recently Amazon announced that as part of its employee benefits package it would offer the therapist-like app Twill. The platform says that Taylor, its clinician-trained chatbot, “learns, interprets and understands each person’s needs and goals to guide them towards personalized care.”

Another product on the market is Wysa, an AI-driven app that received a breakthrough designation by the Federal Drug Administration, putting it on track for fast-track approval. This came after an independent peer-reviewed clinical trial, published in the Journal of Medical Internet Research, which found the app to be effective in the management of chronic pain, and associated depression and anxiety.

Also on the market is Woebot, which combines exercises for mindfulness and self-care (with answers written by teams of therapists) for postpartum depression. 

Pros and cons

The apps vary in how much they incorporate AI — and in how much leeway they give AI systems. These companies say they build safeguards into their apps and that they have certified psychiatrists that oversee the applications.

Proponents of mental health apps and chatbots say they can address issues like anxiety, loneliness and depression. Also, chatbots and apps can provide 24-hour support and they can meet the demand of people who may have a hard time finding a counselor or fitting therapy into their schedule.

On the other hand, there is a paucity of data or research showing how effective, or how safe, they are — and the majority have not been approved by the FDA.

Many of these mental health apps have different specialties, for example: treating anxiety, attention-deficit/hyperactivity disorder or depression. Others can help diagnose mental health problems or predict issues that can lead to self-harm.

Often, the apps will include disclaimers that they are “not intended to be a medical, behavioral health or other health care service” or “not an FDA-cleared product.”

Also, there have been concerns raised about some of these apps. In March 2023, the Federal Trade Commission reached an $8 million settlement with BetterHelp, an app counseling service, over allegations that it shared user data with advertising partners.

Another company, Replika, updated its app last year after users complained that its chatbot engaged in overly sexual conversations, and even harassed them.

The takeaway

Mental health care is an increasingly important part of employee benefits offerings. Since the onset of the COVID-19 pandemic, 94% of employers have made investments in mental health care, according to research by Mercer.

As these apps improve and become more widespread, it’s likely your employees will encounter them when they use their group benefits, or they will be among your voluntary benefit offerings.

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EEOC Proposes New Workplace Anti-Harassment Guidance

by Inoventive Solutions
December 26, 2023

The Equal Employment Opportunity Commission has issued proposed language to update its guidance on harassment in the workplace.

The proposed guidance “reflects notable changes in law, including the Supreme Court’s 2020 decision in Bostock vs. Clayton County (which held that LGBTQ individuals are protected from workplace discrimination under Title VII), the #MeToo movement and emerging issues, such as virtual or online harassment,” the EEOC wrote in its introduction to the proposed guidance.

The agency polices discrimination in American workplaces, and harassment falls under that banner. Between 2018 and 2022, 35% of the charges of employment discrimination filed included an allegation of harassment based on race, color, national origin, religion, sex (including pregnancy, sexual orientation and transgender status), age, disability or genetic information.

Employers should read the guidance to understand the many forms of harassment — and in particular harassment against any LGBTQ workers, since they are the most recent group to receive protected status.

LGBTQ harassment

The Bostock ruling found that harassment based on sexual orientation and gender identity, including how identity is expressed, constitutes sex-based discrimination. According to the EEOC, guidance this type of harassment can manifest in the workplace via:

  • Physical assault;
  • Epithets regarding sexual orientation or gender identity;
  • The denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity;
  • Intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity (which is known as “misgendering”); or
  • Harassment because an individual does not present in a manner that would stereotypically be associated with that person’s gender.

The guidance provides examples that illustrate the many nuances of harassment.

In its guidance, the EEOC cites the following example of indirect LGBTQ harassment:

“Keith and his colleagues work in an open-cubicle style office environment, and they frequently make derogatory comments about gay men and lesbians.

“Horatio, who is gay, overhears the comments on a regular basis and is offended by them, even though they are not directed at him.  

“Based on these facts, the conduct is facially discriminatory and subjects Horatio to harassment based on sexual orientation (which is a form of sex-based harassment), even though he was not specifically targeted by the comments.”

It also offered this example of harassment based on gender identity from a case in Philadelphia:

“Jennifer, a cashier at a fast food restaurant who identifies as female, alleges that supervisors, coworkers, and customers regularly and intentionally misgender her.

“One of her supervisors, Allison, frequently uses Jennifer’s prior male name, male pronouns, and “dude” when referring to Jennifer, despite Jennifer’s request for Allison to use her correct name and pronouns; other managers also intentionally refer to Jennifer as “he.”

“Coworkers have asked Jennifer questions about her sexual orientation … and asserted that she was not female. Customers also have intentionally misgendered Jennifer and made threatening statements to her, but her supervisors did not address the harassment and instead reassigned her to duties outside of the view of customers.

“Based on these facts, Jennifer has alleged harassment based on her gender identity.“

What you can do

The EEOC recommends that employers create an effective anti-harassment policy, which is widely disseminated, and that:

  • Defines what conduct is prohibited.
  • Requires that supervisors report harassment when they become aware of it.
  • Offers multiple reporting avenues for an employee, during both work hours and other times (weekends or evenings).
  • Identifies accessible points of contact to report harassment (complete with contact information).
  • Explains the employer’s complaint process, including the ability to bypass a supervisor, along with anti-retaliation and confidentiality protections.

For an employer’s complaint process to be effective, at a minimum, it should provide:

  • For prompt and effective investigations and corrective action;
  • Adequate confidentiality protections; and
  • Adequate anti-retaliation protections.

The final step in it all is training your employees and supervisors on your anti-discrimination and harassment policy. You can use the EEOC guidance to provide examples of harassment and provide information about your employees’ rights if they experience workplace harassment.

Supervisors and managers should receive additional training, including the importance of taking complaints seriously and not retaliating against anyone who makes a complaint.

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Uncategorized

Family Coverage Costs Hit Small-Business Workers Hardest: Study

by Inoventive Solutions
December 19, 2023

A new study has found that most employer-sponsored family health plans are increasingly unaffordable for workers due to rising costs and them footing a significant part of the premium, even with employer assistance.

Workers at smaller firms, defined as those with fewer than 200 employees, are especially affected as they typically have to pay a larger share of the family coverage premium than their large-employer counterparts (38% vs. 25%), according to the 2023 Kaiser Family Foundation “Employer Health Benefits Survey.”

The amount workers at small firms pay for single-only coverage is comparable to what their counterparts at larger firms pay (17% of the premium vs. 18%).

While family-plan premiums are similar for workers in small and large firms ($23,621 compared to $24,104 on average), due to the higher percentage cost-sharing, employees in small firms are paying significantly more for their share of the premium ($8,334 per year vs. $5,889 at larger firms), according to KFF. Moreover, 25% of workers at small firms pay over $12,000 yearly for family coverage, excluding deductibles that are also often higher.

For low-wage workers that’s a tall order, made worse by the fact that those at small employers typically earn less (an average of $44,600 a year vs. $63,200 for workers at larger firms).

On top of higher premium layouts, workers in small firms may also pay higher deductibles and have higher out-of-pocket medical costs:

  • About 59% of employees in small firms have a family-plan deductible of at least $3,000 before the plan will start covering most services.
  • Some 34% of workers in small firms have a family-plan deductible of at least $5,000, and it may be higher if multiple family members have to spend towards the deductible during the plan year.

What small firms can do

While small employers really can’t do anything about rising group health plan costs, they can take steps to ease their employees’ premium obligations and out-of-pocket costs:

Assume more of the premium — If it’s within their budget, they can increase the amount of family coverage premium they will cover. This is not something that is feasible for many companies, but for those who are interested in attracting and retaining talent who have their own families, they may need to.

Offer more plans with narrow networks— Narrow networks do reduce premiums, and that’s a huge draw for both employers and their employees. But consumers also benefit from these plans through lower overall out-of-pocket expenses.

Narrow networks contain longer-term costs by encouraging individuals to develop a relationship with their primary care providers. Cost savings come from increased use of PCPs and decreased, or more-efficient, use of specialists.

These plans provide a way to contain costs without sacrificing care, but because they’re comprised of local, community-based medical providers they’re best for a workforce that works at a single location and therefore lives within proximity to the job site/office.

Offer high-deductible health plans — A high-deductible plan’s upfront costs are less expensive than a preferred provider organization or health maintenance organization. According to KFF, the average HDHP family coverage costs $22,344 a year, nearly $3,000 less per than a PPO plan and nearly $1,500 less than an HMO.

With that lower premium, employees can set aside additional funds into an attached health savings account, a tax-benefited vehicle that is funded through pre-tax payroll deductions. HSA funds can be used to reimburse for health care expenses, including those towards deductibles.

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Uncategorized

Employers Wrestling with Covering Weight-Loss Drugs

by Inoventive Solutions
December 12, 2023

The explosion in demand for new, costly and highly effective weight-loss and diabetes drugs is poised to play an outsized role in increasing the cost of health care, and in turn, health insurance in America.

These groundbreaking drugs — the most popular sold under the brand names Mounjaro, Ozempic and Wegovy — are partly to blame for overall pharmaceutical benefit costs jumping 8.3% in 2023, compared to an increase of 6.4% in 2022, according to a report by Mercer.

The effects are amplified because of the high cost of these drugs — around $1,000 a month — as well as the growing legion of patients being prescribed them.

On the other hand, these GLIP-1 drugs, as they are known, show great promise in helping tackle the obesity epidemic in the country, which contributes significantly to medical costs.

They were originally designed to treat diabetes, but they had a surprising benefit: weight loss, sometimes so significant that patients’ glucose levels dropped below diabetic levels, and the medications are now being prescribed for weight loss in patients without diabetes.

Employers and insurers are now faced with the prospect of exploding drug costs if demand continues to boom and doctors write more prescriptions for them. To head that prospect off, they are trying to formulate approaches that could keep costs from spiraling while still attending to the demand for weight-loss regimens.

Booming demand

While Novo Nordisk A/S’s Ozempic and Wegovy have been on the market for some time for treating diabetes, the latter has been approved to treat obesity using smaller doses. While Ozempic has not been approved for weight loss, doctors commonly use it off-label for weight loss as well.

In November 2023, Eli Lilly & Co. won clearance from the U.S. Food and Drug Administration for its new drug called Zepbound — a version of its diabetes drug Mounjaro — to be used to treat obesity.

People who take these medications can see dramatic weight loss, which has spurred a surge in prescriptions. In 2022, 5 million GLP-1 prescriptions were written, a 2,082% increase from 2019. The market for these drugs is expected to grow to between $100 billion and $200 billion a year within the next decade.

The manufacturers have been struggling to keep up with demand, with Novo Nordisk saying it will take two years to build up production capacity to meet demand. As it does that, it has limited the availability of lower starting doses of Wegovy as it prioritizes a continuous supply of the pharmaceutical for people who already use it.

One of the biggest challenges with these drugs is that people who stop taking GLP-1 drugs regain most, if not all, of the weight they lost. That may require a lifetime commitment to taking these medications for some individuals. Also, many people stop taking these drugs because they say they have no longer derive pleasure from eating, rendering dining a boring experience.

What employers and payers can do

While employers cover the use of GLP-1 drugs as a treatment for diabetes, the story changes when covering them for treating obesity.

The list prices for the drugs — before any copays or coinsurance — range from $936 per month to about $1,350.

GLP-1 drugs are already recommended for treating certain high-risk type 2 diabetes cases, the majority of which are due to obesity. It’s likely that many individuals with type 2 diabetes will end up on a GLP-1 drug at some point anyway.

Mercer’s “National Survey of Employer-Sponsored Health Plans 2023” survey of employers with 500 or more workers found that:

  • 35% cover GLP-1 drugs for treating obesity with prior authorization and/or reauthorization requirements.
  • 7% said they cover the drug with no special requirements.
  • 19% said they don’t cover these drugs but are considering it.
  • 40% said they are not considering covering these medications.

According to the Mercer report, some employers have reversed previous coverage of GLP-1 drugs for obesity after utilization spiked, saddling their health plans with a surge in pharmaceutical costs.

For employers who want their plans to cover GLP-1 drugs but need to cap their health care costs, experts recommend a step program for people struggling with obesity as it can help patients lose weight at a lower cost: 

Step one — Focuses on helping the patient change their lifestyle through dietary changes and exercise.

Step two — Focuses on education and ancillary services, such as food delivery or mental health support.

Step three — If they still need help, doctors can prescribe first-generation anti-obesity medications, which are less expensive and often generate satisfactory weight loss.

Step four — If all else fails, doctors prescribe GLP-1s if the plan covers them, fully or partially.

Mercer also recommends that for individuals who have achieved their desired weight loss and health improvements through GLP-1 drugs, physicians may want to consider tapering them off them at some point, while focusing on sustaining the weight loss and improved health through adhering to lifestyle changes.

"American
Uncategorized

American Workers Are Burned Out; Employers Can Help

by Inoventive Solutions
November 28, 2023

American employers are trying to meet their workers’ mental health needs as they struggle with burnout and stress from their jobs and finances, according to a new report.

The annual “Aflac WorkForces Report” found that more than 50% of American workers experience burnout in their workplace. Additionally, 57% experience work-related stress, with heavy workloads the biggest stressor among young workers.

The survey results also showed found that employees are struggling with their mental well-being, and that employers can help by providing their staff with mental health tools and resources.

The poll also found that only half of workers (48%) had confidence that their employers cared about their well-being. This is a significant decline compared to 56% and 59% in 2022 and 2021, respectively.

In 2023, 89% of employees are experiencing mental health challenges like depression, anxiety and trouble sleeping, the survey revealed. The overwhelming majority of millennials (64%) and Gen-Z (67%) face high levels of burnout in the workplace.

In contrast, most employers (78%) believe their workers are satisfied.

The biggest stressor

Aflac noted that one of the biggest causes of stress and anxiety among workers is unexpected medical expenses. Moreover, while many employees have financial resources to cover medical emergencies, the state of financial wellness among the workers remains fragile.

According to the survey, 51% of American workers have savings to pay medical bills (a 6% increase compared to 2022). However, only 50% can afford out-of-pocket expenses that exceed $1,000. The survey also indicated that 48% of employees can’t survive without a paycheck for a month. Also, 30% of workers are in a worse financial position (compared to 2022).

What you can do

Not addressing burnout can reduce the quality of life for your staff and it could have downstream implications on your workforce — including diminished job satisfaction and work-life balance among those suffering from burnout, as well as a high chance they’ll be looking for new work.

To ensure employee satisfaction and retention, employers can provide mental health tools and resources. Here are a few tips that can help with employee satisfaction, retention and recruitment.

Improving work-life balance

Work-life balance perks — You can help workers maintain a balance between work and personal life. Dedicating an equal amount between the two eliminates burnout and stress. You can do this by offering:

  • Flexible work schedules. A flexible work schedule gives employees a sense of autonomy. Instead of the traditional 9-5, you can give them the freedom to choose specific hours they wish to work or allow them to work four 10-hour days, leaving one day for personal stuff.
  • More time off. One in three (33%) employees surveyed by Aflac ranked increased time off as their first choice for addressing burnout. More time off can be in the form of additional vacation time or “mental health” days.
  • Paid sick leave. Workers who have paid sick leave can take those days off when they really need to stay home and don’t feel obligated to go to work when sick just because they need the money.

Other ways to help

Provide an EAP — Employee assistance programs include free and confidential assessments, short-term counseling, referrals, and follow-up services to employees who have personal and/or work-related problems.

EAPs address a range of issues affecting mental and emotional well-being, such as alcohol and other substance abuse, stress, grief, family problems and psychological disorders.  

Offer creative bonuses — Offer cash bonuses for exceptional work efforts. If you can’t afford to pay your employees cash bonuses, you can consider something like morning or afternoon off, vacation vouchers, gym memberships and free lunches, to name a few.

Encourage regular breaks — Many workers fail to take their breaks because they get too wrapped up in work, or out of fear they will look bad in front of their colleagues.

Provide supplemental insurance — Supplemental benefits include accident, critical illness, hospital indemnity, disability, cancer, life, vision and dental insurance. These are designed to complement medical insurance, particularly for workers with high deductibles or out-of-pocket expenses. Premiums for many of these benefits are quite affordable.

"Anti-discrimination"/
Uncategorized

EEOC Ramping Up Workplace Anti-Discrimination Efforts

by Inoventive Solutions
November 21, 2023

Employers should brace for increased enforcement by the U.S. Equal Employment Opportunity Commission after it received a budget boost and has a new board member, breaking a deadlock that’s been going on for nearly a year.

Here’s the latest EEOC news that’s pointing to more robust enforcement by the agency:

  • In the federal government’s fiscal year that ended on Sept. 30, 143 lawsuits were filed against employers for alleged discrimination against employees, 52% more than in 2022. All but three of them were filed in the last eight months of the year, indicating a rapid increase that’s spilling over into the current fiscal year.
  • The EEOC’s budget for 2024 increased $26 million, or 6%, from 2023.
  • The composition of the five-member EEOC changed in July, when a new commission member was finally confirmed after a year-long wait, giving Democrat-appointed members a majority. The commission had been deadlocked up until that point with two Republican-appointed members and two Democrat appointments.

These developments indicate that the EEOC will step up its enforcement of federal employment laws. Accordingly, employers should be extra-vigilant in preventing acts or conditions in the workplace that might appear to break the law.

The EEOC is a federal agency charged with enforcing federal laws that prohibit discrimination against job applicants and employees on several grounds. These include race, sex, color, religion, age and disability, among others.

In recent years, the number of lawsuits it filed has shrunk. During some years of the Obama administration, it filed more than 300 suits annually. That number fell to 97 in 2020 and was 124 in 2021.

An EEOC investigation can have several effects on an employer:

  • Time that would have been spent running the business must be dedicated to responding to the charges. Work activities are disrupted as the EEOC requests documents and interviews staff members.
  • Employee morale can tumble when staff find out the government is investigating alleged discriminatory practices.
  • It can tie up the employer for a very long time. The EEOC says most investigations take 10 months or so, but experts say that is an underestimate.

How to prevent an EEOC investigation

The best thing an employer can do is to avoid giving workers any reason to believe they’ve been victims of discrimination. You can do this by:

  • Establishing a strong and clear written anti-discrimination policy. It should expressly state that discrimination against any of the protected classes of employees is illegal and intolerable. You should include it in your employee handbook and communicate it often to workers. A good policy will include easy to understand examples of prohibited conduct.
  • Establishing an anti-retaliation policy. It should make clear that employees who complain of illegal discrimination against themselves or colleagues will not be retaliated against. EEOC statistics showed that most of the complaints it received in 2020 were for retaliation.
  • Training managers and other employees on compliance with applicable laws.
  • Developing and following a consistent process for addressing complaints.
  • Promptly investigating all complaints of discrimination and taking actions, if necessary.
  • Thoroughly documenting all steps in the investigation and retaining the records for future reference.
  • Using progressive discipline with violators, with the severity of the consequences increasing for each subsequent violation.

Insurance

Every employer should carry employment practices liability insurance. This coverage protects the business against claims of discrimination, harassment, retaliation and other wrongful workplace acts.

However, there can be great differences between policies, so it’s important that you work with us to find a policy that is right for your organization.

The EEOC is clearly taking employee discrimination claims more seriously. That makes it all the more important that your organization does the same.

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