2023-05896. 2023 Adjustment of the Penalty for Violation of Notice Posting Requirements

AGENCY:

Equal Employment Opportunity Commission.

ACTION:

Final rule.

SUMMARY:

In accordance with the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, 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:

This final rule is effective March 23, 2023.

FOR FURTHER INFORMATION CONTACT:

Kathleen Oram, Assistant Legal Counsel, [phone] or [e-mail], or Savannah Marion Felton, Senior Attorney, [phone] or [e-mail], Office of Legal Counsel, Equal Employment Opportunity Commission, 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 1-800-669-6820 (TTY), or 1-844-234-5122 (ASL video phone).

SUPPLEMENTARY INFORMATION:

I. Background

Under section 711 of the Civil Rights Act of 1964 (Title VII), which is adopted by reference in section 105 of the Americans with Disabilities Act (ADA) and section 207(a)(1) of the Genetic Information Non-Discrimination Act (GINA), and implemented by the Equal Employment Opportunity Commission (EEOC) in 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, ADA, or GINA, must post notices describing the pertinent provisions of these laws. Covered entities must post such notices in prominent and accessible places where they customarily maintain notices to employees, applicants, and members. 29 CFR 1601.30(a). Failure to comply with this posting requirement is subject to a monetary penalty. 29 CFR 1601.30(b).

Section 5(b) of The Federal Civil Penalties Inflation Adjustment Act of 2015 (2015 Act),^[1] which amended the Federal Civil Penalties Inflation Adjustment Act of 1990, requires the EEOC to annually adjust the amount of the penalty for non-compliance. Under the 2015 Act, the EEOC has no discretion over whether or how to calculate this inflationary adjustment. In accordance with section 6 of the 2015 Act, the EEOC will apply the adjusted penalty only to those assessed after the effective date of the adjustment.

II. Calculation

The adjustment set forth in this final rule was calculated by comparing the Consumer Price Index for all Urban Consumers (CPI-U) for October 2021 with the CPI-U for October 2022, resulting in an inflation adjustment factor of 1.07745. The inflation adjustment factor (1.07745) is multiplied by the most recent civil penalty amount ($612) to calculate the inflation-adjusted penalty level ($659.3994), which is then rounded to the nearest dollar ($659). Accordingly, the Commission is now adjusting the maximum penalty per violation specified in 29 CFR 1601.30(a) from $612 to $659.

III. 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. 5 U.S.C. 553(b)(3)(B). The Commission finds that this rule meets the exception because the 2015 Act requires an inflationary adjustment to the civil monetary penalty, it prescribes the formula for calculating the adjustment to the penalty, and it provides the Commission with no discretion in determining the amount of the published adjustment. Accordingly, the Commission is issuing this revised regulation as a final rule without notice and comment.

Executive Order 12866

This rule is not a significant regulatory action as that term is defined in Executive Order 12866.

Paperwork Reduction Act

This final rule contains no new information collection requirements, and therefore, will create no new paperwork burdens or modifications to existing burdens that are subject to review by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601-612) only requires a regulatory flexibility analysis when the APA requires notice and comment procedures or the agency otherwise issues such a notice. As stated above, notice and comment is neither required nor being used for this rule. Accordingly, the Regulatory Flexibility Act does 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

This regulation is a rule subject to the Congressional Review Act (CRA), but not a “major” rule that cannot take effect until 60 days after it is published in the Federal Register . Therefore, the EEOC will submit 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.

List of Subjects in 29 CFR Part 1601

• Administrative practice and procedure

For the Commission,

Charlotte A. Burrows,

Chair, Equal Employment Opportunity Commission.

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; 28 U.S.C. 2461 note, as amended; Pub. L. 104-134, Sec. 31001(s)(1), 110 Stat. 1373.

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 $659 for each separate offense.

Footnotes

1.  Public Law 114-74, Sec. 701(b), 129 Stat. 599.