EEO-1 Pay Data for 2017 and 2018 Due by Sept. 30

The Equal Employment Opportunity Commission (EEOC), pursuit to a federal judge’s order, has published a notice in the Federal Register stating that all affected companies must report their pay data for 2017 and 2018 (Component 2 of the EEO-1 Report) by Sept. 30, 2019.

eeoc-report-could-be-delayedBusinesses with at least 100 employees and federal contractors with at least 50 employees and a contract of $50,000 or more with the federal government must file the EEO-1 form.

On March 18, the EEOC opened the online EEO-1 reporting portal, but did not include questions concerning pay (Component 2). After a six-week legal process, the agency on Friday, May 3, posted the requirements.

The Federal Register notice states:

EEO-1 filers should begin preparing to submit Component 2 data for calendar year 2017, in addition to data for calendar year 2018, by September 30, 2019, in light of the court’s recent decision in National Women’s Law Center, et al., v. Office of Management and Budget, et al., Civil Action No. 17-cv-2458 (D.D.C.). The EEOC expects to begin collecting EEO-1 Component 2 data for calendar years 2017 and 2018 in mid-July, 2019, and will notify filers of the precise date the survey will open as soon as it is available.


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: No Support ‘at This Time’ for Federal Minimum Wage Hike

While Democrats in both houses of Congress are drafting legislation to basically double the federal minimum wage — from $7.25 to $15 an hour — Department of Labor (DOL) Secretary Alexander Acosta told legislators that “we do not support a change in the federal minimum wage at this time.”

Labor-Secretary-Alexander-Acosta

Labor Secretary Acosta

Appearing before a hearing by the House Committee on Education and Labor, Acosta did concede that “Higher wages are a good thing,” a reference to a recent strike at Stop & Shop, which led to increased wages for the workers. “We all benefit when wages go up.”

However, he also made it clear that he and his department were in no hurry to hike the minimum wage. Acosta said an increase in the federal minimum wage would impose “a cost structure” on those states that have not raised their minimum wage rates (three-fifths of states have).

In answer to a question, the labor secretary also said his department was working with the Securities and Exchange Commission (SEC) on a new fiduciary rule.

A previous fiduciary rule — crafted by the Obama DOL — would have forced retirement investment advisers to put their clients’ best interests first rather than recommend investments that paid them the biggest commission. That rule, however, was vacated by the 5th U.S. Circuit Court of Appeals as being, in part at least, “capricious and arbitrary.”


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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Employed Doctors Now Outnumber the Self-Employed

For the first time since the group began tracking physician employment trends, the American Medical Association (AMA) reports that the percentage of physicians who are employed — working in a hospital, for instance — now outpaces the percentage who own their own practices. According to the most recent survey, taken in September 2018, 47.4 percent of doctors are employed while 45.9 percent are in privately owned practices.

health-care-spending-to-rise-5.5%-annuallyDespite the decline in physician ownership, most doctors still work in smaller practices. “This share has fallen slowly but steadily since 2012. In 2018, 56.5 percent of physicians worked in practices with 10 or fewer physicians compared to 61.4 percent in 2012,” the study found.

Ownership tends to be higher among the specialties: surgeons own 64.5 percent of their own practices, while the percentage for those in obstetrics-gynecology sits at 53.8.


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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HHS to Base HIPAA Fines on Culpability

The Department of Health and Human Services (HHS) in late April issued a notice of enforcement discretion regarding fines for violations of HIPAA (Health Insurance Portability and Accountability Act) and its privacy, security and breach rules.

hhs-resets-hipaa-finesThe fine structure was established in 2009 with a piece of legislation titled  the Health Information Technology for Economic and Clinical Health (HITECH) Act, which capped penalties for a single company at $1.5 million a year.

HHS, however, has concluded that HITECH contains “apparently inconsistent language,” leading to confusion over how much a company can be fined in a year for a continuing violation.

Thus, HHS announced, “As a matter of enforcement discretion, and pending further rulemaking, HHS will apply a different cumulative annual CMP [Civil Monetary Penalty] limit for each of the four penalties tiers in the HITECH Act.”

Further, as a result of a review by the HHS Office of General Counsel, “HHS has determined that the better reading of the HITECH Act is to apply annual limits” based on the level of culpability. (more…)


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 Opinion Letter Offers Definition of Independent Contractor in Gig Economy

The  Department of Labor (DOL) announced today that it has issued a new opinion letter that addresses compliance issues related to the Fair Labor Standards Act (FLSA).

An opinion letter is an official, written opinion by the department’s Wage and Hour Division (WHD) on how a particular law applies in specific circumstances presented by the individual person or entity that requested the letter.

The opinion letter issued today is:

  • FLSA2019-6, addressing whether a service provider for a virtual marketplace company is an employee of the company or an independent contractor under the FLSA.

dol-schedules-overtime-rule-public-sessionsThe letter responds to a request on behalf of a particular virtual marketplace company. It concludes that the workers who provide services to consumers through this specific company’s virtual platform are independent contractors, not employees of the company. To make this determination, WHD applied its longstanding and unchanged six-factor balancing test, derived from Supreme Court precedent:

  • The nature and degree of the potential employer’s control;
  • The permanency of the worker’s relationship with the potential employer;
  • The amount of the worker’s investment in facilities, equipment, or helpers;
  • The amount of skill, initiative, judgment, or foresight required for the worker’s services;
  • The worker’s opportunities for profit or loss; and
  • The extent of integration of the worker’s services into the potential employer’s business.

(more…)


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 Now Due by Sept. 30

UPDATE: Judge Tanya S. Chutkan today approved the EEOC’s new deadline of Sept. 30.

The Equal Employment Opportunity Commission (EEOC) has told a federal judge, who previously ruled the agency must proceed with its once-suspended pay data collection, that it is extending the deadline for Component 2 (pay data) of the EEO-1 Report until Sept. 30. Component 1 (the number of employees who work for the business by job category, race, sex and ethnicity) is still due by May 31.

Businesses with at least 100 employees and federal contractors with at least 50 employees and a contract of $50,000 or more with the federal government must file the EEO-1 form.

On March 18, the EEOC opened the online EEO-1 reporting portal, but did not include questions concerning pay (Component 2). The judge then gave the agency until April 3 to submit its plan for pay data collection, which it did yesterday as requested.

The Obama administration expanded the EEO-1 report to include pay data in 2016, but when the Trump administration took over in January 2017, it suspended the requirement. Federal Judge Tanya S. Chutkan on March 4, 2019, lifted the suspension, ordering pay data to be collected as envisioned by the Obama administration. When the EEOC failed to do so when it opened the EEO-1 portal, she then gave the agency until April 3 to comply.

Judge Chutkan, however, has not yet indicated whether she would accept or reject the DOL’s new deadline.


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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The AAF Should’ve Been WARN’d

The Alliance of American Football (AAF), a springtime supplement to the National Football League (NFL) — which was also striving to be a “minor league” for the bigger entity — abruptly shut down in early April after eight weeks of operations and is now in bankruptcy court, listing $11.3 million in assets and $48 million in liabilities.

aaf-logoIts troubles may not stop there. When it ceased operations, the AAF gave virtually no advanced notice to its players or personnel, who have now filed two lawsuits against the owners, one alleging fraud and other abuses, the other a class action complaint based on violations of the WARN (Worker Adjustment and Retraining Notification) Act.

WARN requires employers to give 60 days’ notice of massive layoffs (defined in different ways but definitely applicable to the AAF). If no such warning is given, the employers can be liable for 60 days of wages and benefits to the let-go employees — as well as facing $500 a day in civil penalties.

(more…)


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 Releases Final Rules for 2020 Health Plans under Obamacare

After a lengthy commentary period that saw few changes from the proposed rule, the Centers for Medicare and Medicaid Serves (CMS) has released its “Notice of Benefit and Payment Parameters” for health insurance plans being sold on the Affordable Care Act (ACA or Obamacare) exchanges for 2020.

aca-unconstitutional-ruling-on-holdThe notice actually lowers user fees on the federal and state health insurance marketplaces, or exchanges, by a half a percentage point — from 3.5 to 3 percent on the federal exchange and from 3 to 2.5 percent on the state exchanges.

At the same time, it endorses what has come to be known as “silverlining” — the practice by insurance companies of raising rates and out-of-pocket limits on the Silver plans sold under Obamacare to cover the absence of cost-sharing reduction (CSR) payments, which were ended by the Trump administration in 2017.

The final rule also allows for the continuation of policy auto-renewal.

Participating insurers now have only until June 19 to submit their health plan options for 2020.


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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SCOTUS to Resolve Split on LGBT Rights under Title VII

Circuit courts have split on whether gender identity and sexual orientation are protected by Title VII of the Civil Rights Act of 1964, as have the Trump Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC). The commission maintains Title VII’s protections based on “sex” include gender identity and sexual orientation, while the DOJ hews to a strict interpretation of “the ordinary meaning of sex,” i.e., male and female.

supreme-court-to-rule-on-LGBT-rights

The U.S. Supreme Court will hear three cases on LGBT rights

The Supreme Court today agreed to take up three circuit court cases that address the issue in different ways. For instance, the 2nd U.S. Circuit Court of Appeals has ruled that Title VII does indeed protect sexual orientation, while the 11th circuit has ruled the opposite — there is no protection for sexual orientation. The 11th circuit court somehow managed to find a middle ground.

Now, it’s the Supreme Court’s turn to resolve the issue one way or the other. The hearing will not be held until the fall, however, meaning the decision likely won’t come before June 2020, the height of the electioneering season.

(more…)


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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EEOC Discrimination Filings Down from Previous Years

The Equal Employment Opportunity Commission (EEOC) today released detailed breakdowns for the 76,418 charges of workplace discrimination the agency received in fiscal year 2018 (down from 84,254 in FY 2017). The comprehensive enforcement and litigation statistics for FY 2018, which ended Sept. 30, 2018, are posted on the agency’s website, which also includes detailed breakdown of charges by state.

eeoc-report-could-be-delayedThe EEOC resolved 90,558 charges of discrimination.  Overall, the EEOC secured $505 million for victims in private sector, state and local government, and federal workplaces. The agency reduced the charge workload by 19.5 percent to 49,607. It achieved this through deploying new strategies to more efficiently prioritize charges with merit, more quickly resolve investigations, and improve the agency’s digital systems. The agency handled over 519,000 calls to its toll-free number, 34,600 emails and more than 200,000 inquiries in field offices, reflecting the significant public demand for the EEOC’s services.

(more…)


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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