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The Labor & Employment Report

President Obama Radically Expands EEO-1 Reporting Requirements

Posted in Employment Discrimination, HR Compliance, Laws & Regulations, Legislative Developments, Workplace Trends

On January 29, 2016, President Obama announced a series of actions intended to close the gender pay equity gap, including proposed revisions to the EEO-1 form that would require the submission of detailed pay information.

As President Obama stated in his press conference, and as set forth in a White House Fact Sheet, “New Steps to Advance Equal Pay on the Seventh Anniversary of the Lilly Ledbetter Fair Pay Act,” the Equal Employment Opportunity Commission today issued a proposed rule to expand the information collected on the EEO-1 form. The EEO-1 form must be submitted annually in September by (1) employers with more than 100 employees and (2) government contractors with more than 50 employees and more than $50,000 in federal contracts or subcontracts. It requires employers to provide information regarding the race, ethnicity, sex, and job category of their workforce. The proposed revision would add the requirement to provide aggregated data on pay and hours worked, broken down into pay bands by the same race, ethnicity, and sex categories. According to the EEOC’s press release on the EEO-1 revisions, the EEOC and the OFCCP will use the submitted data to analyze pay disparities across industries and occupations, and facilitate federal antidiscrimination actions. In addition, EEOC will publish aggregated data that employers can use in their own voluntary compliance efforts.

This revision builds upon a Presidential Memorandum signed by President Obama in April 2014, which imposed this new requirement on government contractors and subcontractors. The Department of Labor’s Office of Federal Contract Compliance Programs issued a proposed rule to implement this directive in September 2014, but the rule has not yet been finalized. The proposed rule met with strong opposition from the government contracting community, which expressed a wide range of concerns. These ranged from the burden of compiling the information, to the confidentiality of the information, to the security of the web portal through which the pay information would be submitted. In addition, the contractor community questioned the utility of the information, which does not account for pay differentials based on geography, size, or other significant factors.

The EEOC, in its proposed rule, contends that it has addressed those concerns. Under EEOC’s proposed rule, each employer would be required to submit the EEO-1 form electronically, which the EEOC states will be “less burdensome” for employers. In addition to the race, ethnicity, gender and job category information already provided, employers will also need to provide the total W-2 wages (which the EEOC believes can be generated at times other than the usual end of the year, given automated payroll systems), aggregated by 12 pay bands in each of the existing 10 EEO-1 job categories. Employers will also report the total number of hours worked by the employees in those pay bands. A proposed form is available here. Notably, the rule does not address contractors’ expressed concerns about the security of the electronic data submission system.

Interested parties may submit comments, including electronically, on the proposed rules from February 1 through April 1, 2016.  The rule will not take effect until it has been revised and finalized by the EEOC, but employers are supposed to comply with the new filing requirements for the September 2017 EEO-1 submission. The EEOC has also issued a Small Business Fact Sheet and Questions and Answers on its proposed rule.

Interestingly, this action appears to resurrect the Equal Opportunity Survey, which was used by the OFCCP from 2000-2005 to collect personnel data, including compensation information, from federal contractors. The EO Survey was abandoned in 2006, after an independent consulting group found that it was ineffective in identifying systemic discrimination. We anticipate that, like the contractor community in response to the Presidential Memorandum, the broader employer community will strongly object to the increased burden of this expanded form. We also expect an outcry of Presidential overreaching by Republican lawmakers.

Along with the expanded EEO-1 form, President Obama also called on Congress to pass the Paycheck Fairness Act. In addition, he announced the issuance of a White House Report on “The Gender Pay Gap on the Anniversary of the Lilly Ledbetter Fair Pay Act,” exploring the gender wage gap and the Administration’s policies intended to address it. He also stated that the White House will host a summit on “The United State of Women” on May 23.

Employees Staying Over in the Storm – Sleep Time Deductions

Posted in HR Compliance, Laws & Regulations, Wage & Hour

With the imminent blizzard of 2016, employers are thinking about work coverage issues. This is of particular concern for those employers who function on a 24-hour basis, like healthcare entities. In order to ensure coverage during perilous travel conditions, some employees may agree to (or even be required to) stay overnight. Obviously, any hours actually spent working must be paid, but they are likely not working during all of that time onsite. In fact, some of that time may be sleep time. What are the rules on pay under those circumstances? going%20to%20bed%20at%20night

The Fair Labor Standards Act provides that if an employee works for more than 24 hours, up to 8 hours of sleep time may be deducted pursuant to an agreement between the employer and employee.  The FLSA does not define what is such an “agreement.”  However, various courts have done so, and these courts have found that if an employer publishes a policy that explains the sleep time deduction and if employees continue to work for the employer, this constitutes an agreement for the deduction.  In at-will employment states, any employee who chooses not to agree to any company policy, including one like this, can certainly choose not to work for the company.  Conversely, the company can choose to terminate any employee who chooses not to agree to any of its policies.  That is what at-will employment entails.  If the company does not have a published policy on this issue, it will not be able to deduct for the sleep time.

The FLSA regulations provide that employers may only deduct for sleep time if the employee is fully relieved of all work during that time and if adequate sleeping facilities are provided.  If the employee’s sleep period is interrupted because of work, the interruption is counted as hours worked.  If the interruptions are so frequent that the employee cannot get a reasonable night’s sleep, then that entire sleep period would be counted as hours worked.  According to the Department of Labor, a reasonable night’s sleep means that the employee is able to get at least 5 hours of sleep during the scheduled sleep period. These five hours need not be continuous uninterrupted hours of sleep.

In addition, only the actual number of hours spent sleeping, up to a maximum of 8 hours, is deducted.  If the sleep time is more than 8 hours, no more than 8 hours can be deducted.  Obviously, this means that each incidence of sleep time would need to be assessed individually.

(Of course, make sure that your state’s law does not have any different specific sleep time provisions!)


Must Employers Accept An Employee’s Stated Disability Without Question?

Posted in Employment Discrimination, Laws & Regulations, Litigation, Reasonable Accommodation

According to the federal district court in Mendillo v. The Prudential Ins. Co. of America, the answer is “yes.” But I struggle with this decision, because I think it ties an employer’s hands and undercuts the employer’s right to demand medical information under the Americans with Disabilities Act.

In this case, a call center employee was pretty seriously injured in a car accident.  There were some performance issues that pre-dated her car accident, and they continued after her return to work. About four months later, the employee’s responsibilities were changed so that her off-line work was taken away and she did telephone work full-time. She told her supervisor that the full-time telephone work would exacerbate her back pain, since she was able to get up and stretch  when she was doing off-line work. In fact, her back pain did worsen with the full-time telephone work, which caused her doctor to order that she cut back on her hours. In addition, her performance took an immediate and significant turn for the worse. She was able to improve her performance, but it fluctuated over the next year, finally resulting in her termination. She then sued, alleging a number of claims including that the company failed to accommodate her in violation of the ADA.

Now, the ADA requires employers to provide reasonable accommodations to the known physical or mental limitations of a disabled employee that would enable her to perform the essential functions of her job. As the court acknowledges, the employee has the initial responsibility to let the employer know that she has a limitation and needs an accommodation. She does not need to identify a particular accommodation that she wants or needs – once she brings her need for accommodation to the company’s attention, both the employee and the company are supposed to engage in an interactive discussion to determine the appropriate accommodation.

So far, so good.  But here’s where I feel like the train might have left the rails. As the company argued to the court, the employee’s own doctor did not state that she was limited in her ability to sit for long periods of time, or that she needed some sort of sitting accommodation. The court, however, said that the employee had made it clear to her supervisor that she couldn’t sit for a prolonged period, and wanted to do offline work so she could take breaks from sitting.  The court (quoting in part a decision from the federal appellate court) stated that:

 an employer has a duty reasonably to accommodate an employee’s disability if the disability is obvious—which is to say, if the employer knew or reasonably should have known that the employee was disabled, whether or not the employee has requested an accommodation or even acknowledges that she has a disability.

Now, I had always understood the “obvious” disability to mean something that is open and indisputable – like a missing arm or blindness. That person is pretty clearly disabled, regardless of whether they admit it or not. Back pain, however, is one of those conditions that is, unfortunately, all too often fraudulently claimed – which is why it is important to have an educated medical opinion involved. As those of us on the management side know, what an employee thinks about her health condition is not always the same as what her doctor thinks. Having the doctor involved gives the employer at least a modicum of a somewhat neutral, presumably expert assessment of the employee’s actual medical condition and needs.

But what the court has done here is to make that expert assessment secondary to the employee’s own say-so. Because the employee said her back hurt and she couldn’t sit (or she gets headaches, or she has cancer), the court finds that the company now should take that as a given and provide a reasonable accommodation for it. Really? I just don’t think that’s right. I think my interpretation makes a lot more sense. And I think the EEOC would agree – its own internal document regarding reasonable accommodations for EEOC employees states that a disability is obvious “when it is clearly visible.”

Back pain and an inability to sit for prolonged periods? Not visible. 

NLRB Overreach: Grad Students as Employees?

Posted in Uncategorized

The National Labor Relations Board (NLRB) continues on its journey to try to take over the world. On January 13, 2016, the Board issued a Notice and Invitation to File Briefs in Columbia University, a case that involves Graduate Workers of Columbia-GWU, UAW (the Petitioner), who seeks to represent a unit of students who assist faculty with teaching, research, and other miscellaneous duties.

Specifically, the Board asked the parties and amici to address, among other issues, whether the Board should modify or overrule its 2004 decision in Brown University, in which it held that graduate student assistants who perform teaching services at a university in connection with their studies are not statutory employees within the meaning of Section 2(3) of the National Labor Relations Act (Act). Specifically, the Board found the teaching activities are so closely related to the students’ degree requirements that the students and the University are engaged in more of an educational relationship, rather than an economic one. That meant the Act did not cover those graduate student assistants, and they could not unionize. Notably, Brown University was a reversal of the NLRB’s position in its 2000 New York University case, in which it had held that graduate assistants are employees.  (Also worth noting, New York University was decided by in a Democratic administration, and Brown University in a Republican one).

The Petitioner argues that an election should be directed because Brown University was wrongly decided and should be overturned.  Columbia University argues that the petition should be dismissed because the students holding positions included in the petitioned-for unit are not employees under the current law in Brown University.

The Board’s invitation to file briefs in Columbia University should come as no surprise to many, especially at a time when the Board continues to expand its jurisdictional reach.  It was but four months ago that the Board altered 30-years of established precedent, in Browning-Ferris, when it found that that two or more entities are joint employers of a single workforce if (1) they are both employers within the meaning of the common law; and (2) they share or co-determine those matters governing the essential terms and conditions of employment. The Board’s invitation to file briefs in Columbia University is a strong indication that it is seeking to overturn Brown University.  We can be sure to expect additional NLRB overreach in the coming year(s)!

Firefighter’s Fear of Fire Is Not Disability

Posted in Employment Discrimination, Laws & Regulations, Litigation

Fire Icon clip art Free VectorAs you may know, I love the quirky cases (like the Playgirl model who sued for sexual harassment). I recently came across a 2014 state case that falls into this category – the firefighter who is afraid of fire.

In City of Houston v. Proler, the captain of a firefighting crew refused to enter a burning apartment building, appearing to be frightened. He was reassigned to the training academy, but was eventually transferred back to active firefighting duty. Two years after the first incident, the captain arrived at a house fire. Again, he appeared to be frightened – unable to put on his equipment, take or give orders, and showing physical distress. He was hospitalized and diagnosed with “global transient amnesia.” Management (reasonably) considered this a “possibly dangerous situation,” and he was again reassigned to the training academy.

Nonetheless (and despite all common sense), the captain wanted to be reassigned to active firefighting. Because he was a union member, he filed a grievance under the collective bargaining agreement. Shockingly (to me), a hearing examiner ordered that he be returned to his fire suppression duties. Unsurprisingly (to me), the City appealed this decision to the trial court, at which point the captain brought claims against the City for disability discrimination under the Americans with Disabilities Act and Texas state law. Shockingly (to me), the jury found that the City had engaged in disability discrimination against the captain, although it awarded him no damages (he did get $362,000 in attorneys’ fees). Shockingly (to me) the Texas Court of Appeals affirmed the disability discrimination verdict.

Fortunately, the Texas Supreme Court exhibited more sense. After questioning whether the captain was even able to perform the essential functions of his firefighting job (which, shockingly to me, the City had apparently failed to argue), the Court turned to the issue of whether the captain was disabled within the meaning of the ADA and Texas law. In making this determination, the issue was whether he was “unable to perform the variety of tasks central to most people’s daily lives” and not those associated with his specific job.

The Court offered an analogy to the NBA:

the capacity to play professional basketball is an ability; the rest of us do not suffer from a disability because we cannot play at that level. A job skill required for a specific job is not a disability if most people lack that skill.

As the Court then noted: “Firefighting is not a major life activity; it is a job requiring highly specialized skills, unique training, and a special disposition…. A reluctance to charge into a burning building is not a mental impairment at all; it is the normal human response.” (Very true).  Thus, he was not limited in his ability to perform this action “as compared with most people in the general population.” And thus, he was not disabled within the meaning of the law.

You know what was the kicker for me? The captain’s own mother testified that the department acted appropriately in removing him from the scene of the second fire – that he was a danger to himself and others. Well, they say that “mother knows best!”

NLRB Says “No Recordings” Rule Is Illegal

Posted in HR Compliance, Labor Law & NLRB, Laws & Regulations, Unions

In the latest round of extreme workplace rulings, the National Labor Relations Board has found yet another reasonable employer work rule to violate the National Labor Relations Act. recorderIn this case, Whole Foods Market, Inc., the employer had implemented two “no recording” policies: one that prohibited employees from making audio or video recordings of company meetings without prior management approval or the consent of all parties to the conversation, and the other that prohibited employees from recording conversations without prior management approval.

The first policy stated that it was intended “to encourage open communication, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust.” The second policy specifically explained that,

“The purpose of this policy is to eliminate a chilling effect on the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded. This concern can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.”

That seems pretty rational, doesn’t it?

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Union Violates Employee’s Labor Rights

Posted in Labor Law & NLRB, Unions

As a management-side labor firm, we are constantly in opposition to unions. So we particularly enjoy the irony when a union – as an employer – is found to have violated the National Labor Relations Act. (Yes, unions do violate the NLRA!) On December 1, 2015, in Amalgamated Transit Union, Local 689 and Tamar C. Simmons, the National Labor Relations Board ruled the Union violated the NLRA by disciplining and threatening to fire one of the Union’s administrative assistants.my way highway

The employee was a member of Office and Professional Employees (“OPELU”) Local Union 2, a union which routinely represents workers within the ATU. (Yes, the union itself is unionized!) Her job duties consisted of answering phones, processing grievances, handling incoming mail, and ensuring that a bulletin board was current. OPELU filed a grievance on the employee’s behalf after the president of the Union transferred some of her administrative tasks to non-bargaining unit employees.

The grievance was eventually dropped, but that did not stop the Union President from interrogating the employee about the timing of her break time. He also got “very angry” at the employee for talking about her breaks with another employee and told her to stop doing so. He issued her a warning letter about her attitude and tone, and also counseled her about keeping the bulletin board updated. Of particular significance, he suggested that if the employee was unhappy at work, she should quit.

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The Rules on the Key Employee Exemption Under the FMLA (Part II)

Posted in Employee Leave (FMLA and ADA), HR Compliance, Laws & Regulations

Last time I talked about how to determine if an employee is a “key employee” under the Family and Medical Leave Act. This time, we’re going to talk about the actual steps you need to take in order to invoke this exemption.golden-key

There are very specific, mandatory notice requirements that apply. 29 C.F.R. Section 825.219(a) requires an employer to notify the employee of the employee’s status as a “key employee,” that it may deny reinstatement following FMLA leave if it determines that substantial and grievous economic injury will occur, and the potential consequences with respect to the maintenance of health benefits. This requirement may be met by checking off the appropriate provision on the DOL’s model “Notice of Eligibility and Rights & Responsibilities,” WH-381. (Are you using the DOL’s model forms? If not, why not? They’re actually pretty good – and I have never seen an individualized employer-prepared form that was any better! In fact, most employer-prepared forms that I’ve seen have various problems. Big ones.)

The employer should give this first notice as soon as it is able to determine that the employee is a key employee. Hopefully, this should happen when the employee gives notice of the need for leave, but may occur after the leave begins if the employer needs time to make that determination. Please note that if the employer fails to give timely notice, the employer will not be able to deny restoration – even if there is substantial and grievous economic injury!!!

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The Rules on the Key Employee Exemption Under the FMLA (Part I)

Posted in Employee Leave (FMLA and ADA), HR Compliance, Laws & Regulations

I’m an Family and Medical Leave Act geek – I find the twists and turns and intricacies of this law and its regulations just fascinating. ( I know, that’s really geeky). I was recently advising a client on the key employee exemption under the FMLA, which reminded me of how technical the rules are with regard to this particular issue. I thought some of you might appreciate a primer on this exemption – what it is and how to apply it.golden-key

Under the FMLA regulations, a key employee may be denied restoration to his job position if such restoration would cause “substantial and grievous economic injuries to the employer’s operations.” 29 C.F.R. Section 825.216. A key employee is a salaried FMLA-eligible employee who is among the highest paid 10 percent of all the employees employed by the employer within 75 miles of the employee’s worksite. (Keep in mind that overtime payments to non-exempt employees can increase their income significantly and throw off the top 10%!)

The regulations discuss what “substantial and grievous economic injury” means. Of particular note, the “substantial and grievous economic injury” must be based on the restoration, and “not whether the absence of the employee will cause such substantial and grievous injury.” (Emphasis added). 29 C.F.R. Section 825.216. This is a very important distinction – several courts have found the employers failed to establish “substantial and grievous economic injury” where the employer focused on the effect of the employee’s absence rather than the impact of the employee’s restoration on its operations. Let me repeat that – FOCUS ON THE IMPACT OF THE RESTORATION, NOT THE ABSENCE!

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Making Up Fake Employees Can Land You in Jail

Posted in Laws & Regulations, Wage & Hour

Most employers are aware that violations of the Fair Labor Standards Act can result in an investigation by the U.S. Department of Labor, leading to back pay damages, as well as possible liquidated damages in an amount equal to back pay, and even civil penalties up to $1000 for each willful or repeated violation. prison-silhouetteState departments of labor may also conduct such investigations for violations of state wage and hour laws, which can result in similar monetary consequences. Employees may also bring a lawsuit against their employer in federal or state court.  But what many employers don’t know is that they could even end up in jail!

Under the FLSA, willful violations can result in criminal prosecution, with a second conviction resulting in imprisonment! State laws can be even more aggressive, as a Papa John’s franchisee recently learned to his dismay.

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