2019 Adjustment of the Penalty for Violation of Notice Posting Requirements
| Published date | 21 March 2019 |
| Citation | 84 FR 10410 |
| Record Number | 2019-05386 |
| Section | Rules and Regulations |
| Court | Equal Employment Opportunity Commission |
Federal Register, Volume 84 Issue 55 (Thursday, March 21, 2019)
[Federal Register Volume 84, Number 55 (Thursday, March 21, 2019)]
[Rules and Regulations]
[Pages 10410-10411]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-05386]
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1601
RIN 3046-AB12
2019 Adjustment of the Penalty for Violation of Notice Posting
Requirements
AGENCY: Equal Employment Opportunity Commission.
ACTION: Final rule.
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SUMMARY: In accordance with the Federal Civil Penalties Inflation
Adjustment Act Improvements Act of 2015, which further amended the
Federal Civil Penalties Inflation Adjustment Act of 1990, 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 April 22, 2019.
FOR FURTHER INFORMATION CONTACT: Kathleen Oram, Assistant Legal
Counsel, (202) 663-4681, or Savannah Marion Felton, General Attorney,
(202) 663-4909, 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 (202) 663-
4191 (voice) or 1-800-669-6820 (TTY), or to the Publications
Information Center at 1-800-669-3362 (toll free).
SUPPLEMENTARY INFORMATION:
I. Background
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, 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.
The EEOC first adjusted the civil monetary penalty for violations
of the notice posting requirements in 1997 pursuant to the Federal
Civil Penalties Inflation Adjustment Act of 1990 (FCPIA Act), 28 U.S.C.
2461 note, as amended by the Debt Collection Improvement Act of 1996
(DCIA), Public Law 104-134, Sec. 31001(s)(1), 110 Stat. 1373. A final
rule was published in the Federal Register on May 16, 1997, at 62 FR
26934, which raised the maximum penalty per violation from $100 to
$110. The EEOC's second adjustment, made pursuant to the FCPIA Act, as
amended by the DCIA, was published in the Federal Register on March 19,
2014, at 79 FR 15220 and raised the maximum penalty per violation from
$110 to $210.
The Federal Civil Penalties Inflation Adjustment Act Improvements
Act of 2015 (2015 Act), Public Law 114-74, Sec. 701(b), 129 Stat. 599,
further amended the FCPIA Act, to require each federal agency, not
later than July 1, 2016, and not later than January 15 of every year
thereafter, to issue regulations adjusting for inflation the maximum
civil penalty that may be imposed pursuant to each agency's statutes.
The EEOC's initial adjustment made pursuant to the 2015 Act was
published in the Federal Register on June 2, 2016, at 81 FR 35269 and
raised the maximum penalty per violation from $210 to $525. The EEOC's
second adjustment made pursuant to the 2015 Act was published in the
Federal Register on January 31, 2017, at 82 FR 8812 and raised the
maximum penalty per violation from $525 to $534. EEOC's third
adjustment made pursuant to the 2015 Act was published in the Federal
Register on January 18, 2018 at 83 FR 2537 and raised the maximum
penalty per violation from $534 to $545.
The purpose of the annual adjustment for inflation is to maintain
the remedial impact of civil monetary penalties and promote compliance
with the law. These periodic adjustments to the penalty are to be
calculated pursuant to the inflation adjustment formula provided in
section 5(b) of the 2015 Act and, in accordance with section 6 of the
2015 Act, the adjusted penalty will apply only to penalties assessed
after the effective date of the adjustment. Generally, the periodic
inflation adjustment to a civil monetary penalty under the 2015 Act
will be based on the percentage change between the Consumer Price Index
for all Urban
[[Page 10411]]
Consumers (CPI-U) for the month of October preceding the date of
adjustment and the prior year's October CPI-U.
II. Calculation
The adjustment set forth in this final rule was calculated by
comparing the CPI-U for October 2018 with the CPI-U for October 2017,
resulting in an inflation adjustment factor of 1.02522. The first step
of the calculation is to multiply the inflation adjustment factor
(1.02522) by the most recent civil penalty amount ($545) to calculate
the inflation-adjusted penalty level ($558.7449). The second step is to
round this inflation-adjusted penalty to the nearest dollar ($559).
Accordingly, we are adjusting the maximum penalty per violation
specified in 29 CFR 1601.30(a) from $545 to $559.
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. EEOC
finds that under 5 U.S.C. 553(b)(3)(B) good cause exists to not utilize
notice of proposed rulemaking and public comment procedures for this
rule because this adjustment of the civil monetary penalty is required
by the 2015 Act, the formula for calculating the adjustment to the
penalty is prescribed by statute, and the Commission has no discretion
in determining the amount of the published adjustment. Accordingly, the
EEOC is issuing this revised regulation as a final rule without notice
and comment.
Executive Orders 13563, 12866, and 13771
In promulgating this final rule, EEOC has adhered to the regulatory
philosophy and applicable principles set forth in Executive Order
13563. Pursuant to Executive Order 12866, the EEOC has coordinated with
the Office of Management and Budget (OMB). Under section 3(f) of
Executive Order 12866, the EEOC and OMB have determined that this final
rule will not have an annual effect on the economy of $100 million or
more, or adversely affect in a material way the economy, a sector of
the economy, productivity, competition, jobs, the environment, public
health or safety, or state, local, or tribal governments or
communities. 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 statue. The rule only
increases the penalty by $14 for each separate offense, nowhere near
the $100 million figure that would amount to a significant regulatory
action.\1\ This rule is not an Executive Order 13771 regulatory action
because the rule is not significant under Executive Order 12866.
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\1\ 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 (or
.13%) contained a notice posting violation.
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Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) (PRA) applies to
rulemakings in which an agency creates a new paperwork burden on
regulated entities or modifies an existing burden. 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 PRA.
Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601-612) only requires a
regulatory flexibility analysis 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.
Dated: March 18, 2019.
Carol R. Miaskoff,
Associate Legal Counsel, Equal Employment Opportunity Commission.
Accordingly, the Equal Employment Opportunity Commission amends 29
CFR part 1601 as follows:
PART 1601--PROCEDURAL REGULATIONS
0
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.
0
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 $559 for each separate
offense.
[FR Doc. 2019-05386 Filed 3-20-19; 8:45 am]
BILLING CODE 6570-01-P
