2014-06006. Adjusting the Penalty for Violation of Notice Posting Requirements

AGENCY:

Equal Employment Opportunity Commission.

ACTION:

Final rule.

SUMMARY:

In accordance with the Federal Civil Monetary Penalty Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996, this final rule adjusts for inflation the civil monetary penalty for violation of the notice-posting requirements in Title VII of the Civil Rights act of 1964, the Americans with Disabilities Act, and the Genetic Information Non-Discrimination Act.

DATES:

Effective Date: April 18, 2014.

FOR FURTHER INFORMATION CONTACT:

Thomas J. Schlageter, Assistant Legal Counsel, [phone], or Danielle J. Hayot, Senior Attorney, [phone], Office of Legal Counsel, 131 M St. NE., Washington, DC 20507. Requests for this notice in an alternative format should be made to the Office of Communications and Legislative Affairs at [phone] (voice) or [phone] (TTY), or to the Publications Information Center at 1-800-669-3362 (toll free).

SUPPLEMENTARY INFORMATION:

Under section 711 of the Civil Rights Act of 1964 (Title VII), which is incorporated by reference in section 105 of the Americans with Disabilities Act (ADA) and section 207 of the Genetic Information Non-Discrimination Act (GINA), and 29 CFR 1601.30(a), every employer, employment agency, labor organization, and joint labor-management committee controlling an apprenticeship or other training program covered by Title VII, the ADA, or GINA, must post notices describing the pertinent provisions of Title VII, ADA, or GINA. Such notices must be posted in prominent and accessible places where notices to employees, applicants, and members are customarily maintained.

Pursuant to section 4 of the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note, as amended by the Debt Collection Improvement Act of 1996 (“DCIA”), Pub. L. 104-134, Sec. 31001(s)(1), 110 Stat. 1373, each federal agency is required to issue regulations adjusting for inflation the maximum civil penalty that may be imposed pursuant to each agency's statutes. The purpose of the adjustment is to maintain the remedial impact of civil monetary penalties and promote compliance with the law. The EEOC's initial adjustment was published in the Federal Register on May 16, 1997, at 62 FR 26934, and raised the maximum penalty per violation of the notice posting requirements from $100 to $110.

Section 5 of the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended, requires that the adjustment to a civil monetary penalty reflect the percentage increase in the Consumer Price Index (CPI) between June of the calendar year in which the penalty was last adjusted (1997) and June of the calendar year preceding the revised adjustment (2013). The DCIA defines the CPI as the CPI for all urban consumers published by the Department of Labor (CPI-U), available at ftp://ftp.bls.gov/pub/special.requests/cpi/cpiai.txt. As the last adjustment was made and published on May 16, 1997, the inflation adjustment set forth in this final rule was calculated by comparing the CPI-U for June 1997 (160.3) with the CPI-U for June 2013 (233.504), resulting in an inflation adjustment factor of 45.67% (233.504-160.3)/160.3=.45667).^[1]

Once the inflation adjustment factor is determined, the second step is to multiply the inflation adjustment factor (45.67%) by the current civil penalty amount ($110) to calculate the raw inflation increase ($50.24). The third step is to round this raw inflation increase to the nearest multiple of a hundred (here $100 because $50.24 is closer to $100 than to $0).The fourth step is to add the rounded inflation increase ($100) to the current civil penalty amount ($110) to obtain the new, inflation-adjusted civil penalty amount ($210). Accordingly, we are adjusting the maximum penalty per violation specified in 29 CFR 1601.30(a) from $110 to $210.

Regulatory Procedures

Administrative Procedure Act

The Administrative Procedure Act (APA) provides an exception to the notice and comment procedures where an agency finds good cause for dispensing with such procedures, on the basis that they are impracticable, unnecessary or contrary to the public interest. EEOC finds that under 5 U.S.C. 553(b)(3)(B) good cause exists for dispensing with the notice of proposed rulemaking and public comment procedures for this rule because this adjustment of the fine is required by the Debt Collection Improvement Act of 1996, the formula for increasing the penalty is prescribed by statute, and the Commission has no discretion in determining the amount of the published adjustment. Accordingly, we are issuing this revised regulation as a final rule without notice and comment.

Executive Order 13563 and 12866

In promulgating this final rule, EEOC has adhered to the regulatory philosophy and applicable principles set forth in Executive Order 13563. This final rule was not reviewed by Office of Management and Budget (OMB) under Executive Order 12866 because it is not a “significant regulatory action” as defined by section 3(f) of Executive Order 12866. The great majority of employers and entities covered by these regulations comply with the posting requirement, and, as a result, the aggregate economic impact of these revised regulations will be minimal, affecting only those limited few who fail to post required notices in violation of the regulation and statute.^[2] The rule only increases the penalty by $100 for each separate offense, nowhere near the $100 million figure that would require OMB review.

Paperwork Reduction Act

This final rule contains no new information collection requirements subject to review by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Regulatory Flexibility Act

A regulatory flexibility analysis is only required by the Regulatory Flexibility Act (5 U.S.C. 601-612) when notice and comment is required by the Administrative Procedure Act or some other statute. As stated above, notice and comment is not required for this rule. For that reason, the requirements of the Regulatory Flexibility Act do not apply.

Unfunded Mandates Reform Act of 1995

This final rule will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Congressional Review Act

The Congressional Review Act (CRA) requires that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EEOC will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to the effective date of the rule. Under the CRA, a major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by the CRA at 5 U.S.C. 804(2).

List of Subjects in 29 CFR Part 1601

• Administrative practice and procedure

For the Commission.

Dated: March 12, 2014.

Jacqueline A. Berrien,

Chair.

Accordingly, the Equal Employment Opportunity Commission amends 29 CFR Part 1601 as follows:

PART 1601—PROCEDURAL REGULATIONS

1. The authority citation for Part 1601 continues to read as follows:

Authority: 42 U.S.C. 2000e to 2000e-17; 42 U.S.C. 12111 to 12117; 42 U.S.C. 2000ff to 2000ff-11.

2. Section 1601.30 is amended by revising paragraph (b) to read as follows:

§ 1601.30

Notices to be posted.

* * * * *

(b) Section 711(b) of Title VII and the Federal Civil Penalties Inflation Adjustment Act, as amended, make failure to comply with this section punishable by a fine of not more than $210 for each separate offense.

Footnotes

1.  Penalty increases are determined by the specific rounding formula prescribed by the Debt Collection Improvement Act of 1996. Because of the small size of the penalty, the rounding rules required an inflation increase of 45 percent or more before an increase could be effectuated, which did not occur until the June 2013 CPI was announced in July 2013.

2.  In the last ten years, the highest number of charges alleging notice posting violations occurred in 2010. In that year, only 114 charges of the 90,837 Title VII, ADA, and GINA charges (.13%) contained a notice posting violation.