EEO-1 Pay Data Reporting Still in Limbo

An Obama-era requirement that affected employers must include employee pay data on their annual EEO-1 reports, once nixed by the Trump Office of Management and Budget (OMB) and then restored by a federal judge, is now pending formal announcement by the Equal Employment Opportunity Commission (EEOC).

eeoc-report-could-be-delayedThe EEO-1 online reporting portal opened Monday (March 18) for the traditional Component 1 (race and gender) data, but there was no mechanism for reporting Component 2 data for pay and hours worked.

U.S. District Judge Tanya S. Chutkan has now given the agency until April 3 to clarify how it plans to comply with her order to restore pay data collection.

The EEO-1 reporting period runs through May 31, but speculation abounds that the EEOC may delay collection of the pay data beyond that date to give employers and their own agency time to prepare.

The EEO-1 reporting requirement affects mostly businesses with federal contracts and businesses with 100 or more employees.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Despite Obamacare Options, Employers Still Responsible for COBRA Compliance

Though in many cases, a departing employee would be better served obtaining subsidized insurance on the Obamacare exchanges, employers are still required to inform departing employees and their qualified beneficiaries of the option to extend their company-based health insurance based on the circumstances of their departure.

Under the Consolidated Omnibus Budget Reconciliation Act (COBRA), employers with 20 or more full-time employees are required to offer continuation of health coverage for a limited time to employees and their dependents who lose coverage due to a qualifying event.

A qualifying event could be a termination for other than gross misconduct or a loss of coverage due to a reduction in hours, along with five other events (such as death, divorce, etc.).

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Opinion Letter Clarifies Start of FMLA Leave

According to an opinion letter issued March 14 by the Wage and Hour Division (WHD) of the Department of Labor (DOL), the clock starts ticking on Family and Medical Leave ACT (FMLA) leave the moment the employee qualifies for the leave.

whd-issues-opinion-on-fmla-leaveThis opinion, signed by acting WHD Administrator Keith Sonderling, runs counter to a ruling by the 9th U.S. Circuit Court of Appeals, which held that employees could withhold the start of FMLA leave to take paid time off first.

The letter states: “Once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.”

Furthermore: “The employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation . . . .[If] an employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts toward his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement.”

The opinion further clarifies that employers are free to offer more generous leave terms, but in no case can more than 12 (or 26) weeks of leave be designated as FMLA-protected leave.

 


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Workplace Violence Falls Under OSHA General Duty Clause, Commission Rules

The Occupational Safety and Health Review Commission (OSHRC) has ruled that workplace violence is covered by the general duty cause of the Occupational Safety and Health (OSH) Act, thus making employers liable for acts of violence affecting their employees while carrying out their work duties, whether onsite or off.

workplace-violence-falls-under-general-duty-clauseThat clause states that employers must “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

The review-decision stems from the 2012 stabbing death of an Integra employee who was calling on a patient at his home per instructions from Integra. The patient, with a history of mental illness and violence, attacked the employee with a knife nine times and left her for dead on his front lawn. She was found by a motorist passing by and taken to the hospital, where she died.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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CMS Eyes Selling Health Insurance Across State Lines

The Centers for Medicare & Medicaid Services (CMS) has issued a request for information (RFI) that solicits recommendations on how to eliminate regulatory, operational and financial barriers to enhance issuers’ ability to sell health insurance coverage across state lines.

cms-looks-to-sell-health-insurance-across-state-linesThis announcement builds on President Trump’s October 12, 2017 Executive Order, “Promoting Healthcare Choice and Competition Across the United States,” which intends to provide Americans relief from rising premiums by increasing consumer choice and competition.

The President’s Executive Order specifically instructs the administration to facilitate the purchase of health insurance coverage across state lines.  As a direct result, CMS is issuing this RFI to increase consumer choice.

The RFI process allows CMS to obtain valuable feedback from the public and collect ideas on how to change the existing system.  In particular, CMS says it is interested in feedback on how states can take advantage of Section 1333 of the Patient Protection and Affordable Care Act (PPACA), which provides for the establishment of a regulatory framework that allows two or more states to enter into a Health Care Choice Compact to facilitate the sale of health insurance coverage across state lines.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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It’s Official: DOL Proposes Overtime Threshold of $35,308 a Year

The Department of Labor (DOL) today announced a Notice of Proposed Rulemaking (NPRM) that would make more than a million more American workers eligible for overtime, according to its estimates.

dol-announces-new-overtime-ruleUnder currently enforced law, employees with a salary at or below $455 per week ($23,660 annually) must be paid overtime if they work more than 40 hours per week.  Workers making this salary level or below generally would be eligible for overtime based on their job duties, another consideration. This salary level was set in 2004.

Today’s proposal would update the salary threshold using current wage data, projected to Jan. 1, 2020. The result would boost the standard salary level from $455 to $679 per week (equivalent to $35,308 per year). The DOL estimates the new rule will cost employers an additional $440 million annually once it takes effect.

The proposal will be published in the Federal Register the week of March 11, opening a 60-day window for public commentary. The final rule is expected to take effect prior to the 2020 election cycle.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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EEO-1 Pay Data Collection Mandate Restored by Judge

A federal district court judge has restored the pay data collection requirement established by the Obama administration and then axed by the Trump Office of Management and Budget (OMB).

Judge Tanya S. Chutkan of the District of Columbia District Court ruled that the “previous approval of the revised EEO-1 form shall be in effect,” explaining that the OMB had failed to provide a “reasoned explanation” for the cancellation of pay data gathering.

The EEO-1 report was originally due this month, but because of the federal government shutdown earlier this year, the Equal Employment Opportunity Commission (EEOC) extended the report’s deadline until May 31.

The EEO-1 is an annual survey that requires all private employers with 100 or more employees and federal government contractors or first-tier subcontractors with 50 or more employees and a federal contract, sub­contract or purchase order amounting to $50,000 or more to file the EEO-1 report.

The filing of the EEO-1 report is required by federal law per Section 709(c), Title VII of the Civil Rights Act of 1964, as amended; and §1602.7–§1602.14, Title 29, Chapter XIV of the Federal Code of Regulations.

VIEW AND READ EEO-1 FAQs


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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DOL Sends Joint Employer Proposal to the White House

The Department of Labor (DOL) has sent a proposal on defining a joint employer relationship to the White House and its Office of Management and Budget (OMB), signaling that a Notice of Proposed Rulemaking (NPRM) will soon follow.

white-house-receives-joint-employer-proposalAccording to the Wall Street Journal, the proposal will set a “high bar” for establishing a joint employer relationship, which refers to the situation in which two employers — for instance, a corporation and a franchisee, or a temp agency and another business using that agency to provide employees — are jointly responsible for their shared employees’ rights under the Fair Labor Standards Act (FLSA) and other employment laws and regulations.

The issue grew more contentious under the Obama administration when the National Labor Relations Board (NLRB), which oversees some provisions of the FLSA, established the principle of “indirect control” as being the foundation of a joint employer relationship. A lawsuit by employees of local McDonald’s franchises against the parent corporation soon followed for alleged unlawful employment practices. (In essence, going after the deep-pockets parent corporation.)

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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New Overtime Threshold Purported to Be $35K a Year

With a Notice of Proposed Rulemaking (NPRM) expected this month on new overtime regulations from the Department of Labor (DOL), Bloomberg Law is reporting that the threshold for exemption from overtime pay will rise from the current $23,660 to $35,000 a year.

dol-schedules-overtime-rule-public-sessionsThe threshold originates in the Fair Labor Standards Act (FLSA), which created overtime pay back in 1938 for any hours worked beyond 40 in a week. Some states, including California, now mandate that overtime be paid for any time worked beyond 8 hours in a single day.

The DOL has not yet commented on the report by Bloomberg Law, but any increase in the threshold will obviously make many more employees eligible for overtime pay.

In 2016, an overtime rule from the Obama administration would have raised the threshold to $47,476 a year, but a federal district judge in Texas blocked the rule’s implementation just days before it was to take effect. It still languishes awaiting review by the 5th U.S. Circuit Court of Appeals in New Orleans after the Trump administration asked that the court put a halt to the process while it designs a new rule.

Some have speculated that, should the Trump-era rule be blocked by lawsuits and a Democrat elected president in 2020, the $47,476 rule could easily be revived.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Google to End Forced Arbitration Clauses for Discrimination

Following 2018’s decision to end forced arbitration for sexual harassment claims, Google (aka Alphabet) announced Thursday that it would end forced  arbitration for discrimination as well on March 21.

google-to-end-forced-arbitrationThe change applies to all Google employees as well as temps and contract workers, though the company says it cannot force staffing agencies to make the same change in their employment agreements.

The sexual harassment change came after a demonstration worldwide by some 20,000 Google employees. Since then, a group called Googlers for Ending Forced Arbitration has kept up the pressure to extend the arbitration exclusion.

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NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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