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Posts Tagged ‘EEOC’

EEO-1 Pay and Hours Data Requirement In Limbo

Posted on: March 21st, 2019

By: Brent Bean

Whether and when covered businesses have to comply with revised EEO-1 requirements for pay and hours worked data remains uncertain as the reporting period opens. Companies with 100 or more employees, along with federal contractors who employ 50 or more employees, are required to submit to the EEOC annual Employer Information Reports, so-called EEO-1 reports. These reports disclose information concerning the number of employees a company employs broken down by job category, race, sex, and ethnicity. In 2016 the EEOC requested approval from the Office of Management and Budget to begin collecting pay and hours worked data. The ostensible aim of these additions was to generate data from which the Commission could begin to identify pay disparities and potential discriminatory practices.

In August 2017 OMB announced a stay of these new collection requirements due to the burden imposed on businesses when weighed against the perceived utility of the data. In response, the National Women’s Law Center brought suit in the District Court for Washington, D.C., challenging the OMB’s basis for taking that action. On March 4 of this year, that court issued an opinion reinstating the pay and work hours reporting requirement, finding the OMB had acted arbitrarily and capriciously in eliminating the requirement. See National Women’s Law Center v. Office of Management and Budget, 2019 U.S. Dist. LEXIS 33828 (D.D.C. Mar. 4, 2019).

EEO-1 reports for 2018 however, are due between March 18 and May 31. Accordingly, this recent ruling and putative change in reporting requirements raise some significant concerns about the practical ability of employers to comply on such short notice. The EEOC’s portal for EEO-1 reports opened on Monday, March 18 without any reference to pay and hours worked data. The Commission stated that it is working diligently on complying with the court’s order and further information regarding pay and hours worked reporting would follow.

While it is expected that the OMB will appeal the District court’s ruling, it is not clear at all whether that appeal will cause a stay of the reporting requirement for pay and hours information for 2018.

So questions remain: will employers have to provide this information in their 2018 reports and if so, when?

At a status conference on March 19, the District Court Judge issued an order that the Commission must explain by April 3 how it will implement the March 4 Order reinstating the collection of pay data. As such, we can expect some additional information from the Commission by then, as well as perhaps a notice of appeal from OMB.

FMG will keep you updated on activity by the Commission and the Courts. But employers should prepare now with a thorough review of their pay structures in order to identify not only any disparities that may raise red flags and draw increased scrutiny, but also to understand what legitimate, non-discriminatory reasons exist for their present pay practices.

If you have any questions or would like more information, please contact Brent Bean at [email protected].

EEO-1 Reporting Is Coming and There Are Some Things You Should Know

Posted on: March 11th, 2019

By: Hillary Freesmeier

Employers with 100 or more employees are no stranger to the EEO-1 Report. The EEO-1 Report requires all employers with 100 or more employees, or federal contractors with 50 or more employees awarded a contract of $50,000 or more, to report employee demographics by gender, race, and ethnicity each year. Typically, the report must include data from any pay period from October to December and must be filed by March 31 of the following year. However, in light of the government shutdown, the EEOC has delayed the opening of the EEO-1 reporting period to March 18, 2019 and has extended the deadline to May 31, 2019.

Additionally, a federal court has reinstated previous expansion to the EEO-1 Report, which requires employers to also track and report compensation and hours worked within 12 pay bands based on employees’ gender, race, and ethnicity.

Such expansion dates back to a January 2016 Obama-era proposal that required employers to also provide W-2 earnings and hours worked with their EEO-1 Report in an effort to increase pay transparency and equal pay compliance. Such proposal was approved by the Office of Management and Budget (OMB) in September 2016 and was titled “Component 2.” Before Component 2 could be implemented, the OMB decided to review and stay the collection of Component 2 data.

Shortly after the stay was effected, the National Women’s Law Center and the Labor Council for Latin American Advancement sued to reinstate the Component 2 reporting requirements. On March 4, 2019, U.S. District Judge Tana J. Chutkan in the District of Columbia vacated OMB’s stay and ordered that the Component 2 revisions go into effect.

Although the EEO-1 reporting period is just days away, employers don’t be alarmed. It is unlikely that the EEOC will require Component 2 reporting for 2018 on such short notice. Additionally, it is currently anticipated that the government will appeal the ruling. Therefore, employers’ best course of action is to monitor the EEO-1 reporting requirements closely. FMG will continue to watch the EEO-1 Report developments and provide updates to keep employers informed.

If you have any questions or would like more information, please contact Hillary Freesmeier at [email protected].

As #MeToo Movement Takes Off, EEOC Sexual Harassment Claims Jump

Posted on: October 11th, 2018

By: Barry Brownstein

Since October 2017, when the Harvey Weinstein scandal broke and the #MeToo movement took off, the U.S. Equal Employment Opportunity Commission has filed 50 percent more sexual harassment lawsuits than it did the previous year and has seen a spike in the number of sexual harassment claims it has received. The EEOC filed 66 harassment lawsuits in fiscal 2018 of which 41 contained allegations of sexual harassment.  In addition, the EEOC recovered about $70 million for sexual harassment victims in fiscal 2018, compared with approximately $47 million it recovered in fiscal 2017.

According to the agency’s data, besides its own stepped up enforcement efforts, workers have also increasingly turned to the EEOC over the past year to report allegations of sexual harassment.  The number of charges filed by individuals alleging they were victims of workplace sexual harassment increased by 12 percent in fiscal 2018 from the prior year. The EEOC fielded 6,696 sexual harassment charges in fiscal 2017. A 12 percent increase of that figure indicates the agency fielded about 7,500 sexual harassment charges in the most recent fiscal year. That increase is the first time this decade the number of sexual harassment charges received by the EEOC has gone up from one fiscal year to the next.

Acting EEOC Chair Victoria Lipnic has ardently communicated the message that the EEOC has continued to lead the way to achieve the goal of reducing the level of harassment and promoting harassment-free workplaces. Consistent with that theme, the EEOC has also issued a report highlighting the various measures it took over the past 12 months to fight all forms of workplace harassment.  Such efforts include more than 1,000 outreach events, the development of “respectful workplaces” training seminars, and the creation of an internal “harassment prevention action team” to coordinate the agency’s anti-harassment efforts.

With sexual harassment claims soaring, employers should review their current training program, update it so it is consistent with the EEOC’s “respectful workplaces” training, and ensure all employees are provided with such training.

If you have any questions or would like more information, please contact Barry Brownstein at [email protected].

Is Your Attendance Policy Too Rigid?

Posted on: September 6th, 2018

By: Christopher Curci

Employers need to be mindful of both the Family Medical Leave Act (“FMLA”) and Americans with Disabilities Act (“ADA”) when considering how to enforce their attendance policies.  When an employee requests time off from work to attend to a medical condition, most employers will consider the request as one for medical leave under the FMLA.  However, what happens if the employee has exhausted his or her FMLA leave or is not eligible for FMLA leave.  Many employers will simply conclude that the employee is not eligible for FMLA leave without considering whether the ADA requires the leave as a reasonable accommodation.  This common mistake often results in a violation of the ADA.

For example, in August 2018 the EEOC filed a lawsuit against Stanley Black & Decker for terminating an employee who took leave for medical treatments related to her cancer.  To qualify for FMLA leave, the employee must have been employed with the company for at least one year and worked at least 1,250 hours during the prior year.  In the Stanley Black & Decker lawsuit, the employee requesting leave had been employed for less than one year.  When she asked Human Resources what her options were to receive her medical treatments, she was correctly told that she was not eligible for FMLA leave.  However, Human Resources did not consider whether the requested leave was a reasonable accommodation under the ADA.

What happened?  The employee exceeded her allowed vacation days to undergo her cancer treatments and Stanley Black & Decker terminated her employment for excessive absenteeism in violation of its attendance policy.  Then what happened?  The EEOC filed a lawsuit against Stanley Black & Decker for violating the ADA.

Per the EEOC, Stanley Black & Decker’s attendance policy “does not provide exceptions for people who need leave as an accommodation to their disability.”  EEOC Regional Attorney Debra M. Lawrence said, “Employers can run afoul of the ADA if they have a rigid attendance policy that penalizes employees taking leave as a reasonable accommodation for their disabilities.”

Inflexible leave policies that discriminate against individuals with disabilities is one of six national priorities identified by the EEOC’s Strategic Enforcement Plan.  The take away: when an employee requests leave due to a medical condition, employers must consider both the FMLA’s leave requirements and the ADA’s reasonable accommodation requirements.

Christopher Curci practices Labor & Employment law in Pennsylvania and New Jersey and is a member of  Freeman Mathis & Gary’s Labor and Employment Law National Practice Section.  He represents employers in litigation and advises clients on all aspects of employment law.  He can be reached at [email protected].

 

EEOC Settlement With Florida Hotel Is A Reminder To Be Careful In Implementing A Mass Termination Program

Posted on: August 1st, 2018

By: Jeremy Rogers

Recently, the EEOC announced a settlement in a lawsuit brought against SLS Hotel in South Beach.  The lawsuit, filed in 2017, followed an investigation into charges made by multiple Haitian former employees who had been terminated in April 2014. They worked as dishwashers in three separate restaurants located in the SLS Hotel.  They alleged that they had been wrongfully terminated in violation of Title VII of the Civil Rights Act on the basis of race, color, and/or national origin. All told, there were 23 dishwashers fired on the same day in 2014, all but 2 of which were Haitian.  On the date of termination, each terminated employee was called into a meeting with the HR department and fired.  When fired, they allege, they were told that they must sign a separation and final release in order to receive their final paychecks.  Prior to termination, they claim that they had been subjected to considerable forms of harassment including verbal abuse (they assert they were called “slaves”), being reprimanded for speaking Creole among themselves while Latinos were allowed to speak Spanish, and being assigned more difficult tasks than non-Haitian employees.

What makes this case interesting is that SLS had re-staffed these positions using a third-party staffing company. The new staff supplied by the staffing company were primarily light-skinned Latinos. The new staff also included at least one employee who had been terminated by SLS, but that individual was also Latino.  Articles about this case from when it was filed show that the EEOC took the position that SLS was attempting to hide their discrimination behind the use of the staffing company. SLS, for their part, asserted that they had made the decision to change to the use of a staffing company 2 years before the mass termination. Despite this, the district director emphasized once again, when the EEOC announced the settlement, that the EEOC will not allow companies to hide behind business relationships to engage in discriminatory practices.  This was, according to the EEOC, just such a case.

So how egregious did the EEOC believe this case to be?  They accepted settlement on behalf of 17 workers for the sum of $2.5 million, which works out to just over $147,000.00 per employee if split equally.

If you have any questions or would like more information, please contact Jeremy Rogers at [email protected].