Adjusting the Penalty for Violation of Notice Posting Requirements, 35269-35270 [2016-12999]

Agencies

• Equal Employment Opportunity Commission

[Federal Register Volume 81, Number 106 (Thursday, June 2, 2016)]
[Rules and Regulations]
[Pages 35269-35270]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-12999]



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Rules and Regulations
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Federal Register / Vol. 81, No. 106 / Thursday, June 2, 2016 / Rules 
and Regulations

[[Page 35269]]



EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1601

RIN 3046-AB03


Adjusting 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 July 5, 2016.

FOR FURTHER INFORMATION CONTACT: Thomas J. Schlageter, Assistant Legal 
Counsel, (202) 663-4668, or Ashley M. Martin, General Attorney, (202) 
663-4695, 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 (202) 663-4494 (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 purpose of the adjustment 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 Consumers (CPI-U) for 
the month of October preceding the date of adjustment and the prior 
year's October CPI-U. The initial adjustment made to a civil monetary 
penalty under the 2015 Act, however, will be based on the percentage 
change between the CPI-U for the month of October 2015 and the CPI-U 
for the month of October of the calendar year during which the amount 
of such civil monetary penalty was established or last adjusted other 
than pursuant to the FCPIA Act. For the first adjustment made by an 
agency under the 2015 Act, the maximum amount of the increase in civil 
monetary penalty may not exceed 150 percent of the amount of that civil 
monetary penalty as it was on the date of enactment of 2015 Act.

II. Mathematical Calculation

    The adjustment set forth in this final rule was calculated by 
comparing the CPI-U for October 2015 with the CPI-U for October 1964, 
the calendar year during which the amount of the civil monetary penalty 
was established, resulting in an inflation adjustment factor of 
7.64752. Once the inflation adjustment factor is determined, the first 
step of the calculation is to multiply the inflation adjustment factor 
(7.64752) by the civil penalty amount ($100) in the year that the 
penalty was established to calculate the inflation-adjusted penalty 
level ($764.752). The second step is to round this inflation-adjusted 
penalty to the nearest dollar ($765). The third step is to compare the 
new inflation-adjusted penalty amount ($765) with the penalty amount 
($210) reported in the prior year's Agency Financial Report (AFR). 
Under the 2015 Act, the adjustment amount cannot exceed 150 percent of 
the last reported penalty ($210). To achieve an increase of 150 
percent, multiply the penalty amount ($210) last reported in the AFR by 
2.5, and round to the nearest dollar ($525). The final step is to 
compare the inflation-adjusted penalty amount ($765) with the penalty 
amount that is 150 percent more than the last reported penalty level 
($525). The 2015 Act specifies that if the inflation-adjusted penalty 
amount ($765) is larger, the 150 percent limit applies, and the 
increase is limited to 150 percent. Accordingly, we are adjusting the 
maximum penalty per violation specified in 29 CFR 1601.30(a) from $210 
to $525.

[[Page 35270]]

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 for dispensing 
with the 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, 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. 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 $315 for each separate offense, nowhere near 
the $100 million figure that would amount to a significant regulatory 
action.\1\
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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 
(.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.

    For the Commission.

    Dated: May 25, 2016.
Jenny R. Yang,
Chair.

    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:


Sec.  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 $525 for each separate 
offense.

[FR Doc. 2016-12999 Filed 6-1-16; 8:45 am]
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