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L&E Evolution Part III: Managing employees in a digital age

March 8th, 2019  |  Lorene Park

By Lorene D. Park, J.D.

In this third Special Briefing in a series by Employment Law Daily, Senior Employment Law Analyst Lorene D. Park examines technology-driven changes in hiring practices, policies on employee communications and use of technology, privacy concerns, cybersecurity, and more.

Highlights of this Special Briefing include:

  • Recruiting through social media, AI, and mobile technology
  • Accessibility and ADA considerations
  • Cybersecurity, breach notification, and trade secret considerations
  • The ECPA, SCA, CFAA, Wiretap Act, and other privacy laws
  • Expanded NLRA protections for new technology and modes of communication
  • Computer-use and electronic communication policies
  • Social media issues, including ownership of Twitter and Facebook accounts, harassment, and workplace policy violations
  • Surveillance of employees, including keylogging; screen capturing, GPS tracking; microchipping; biometric timekeeping; and more

As with the first briefing, which covered changes in the employment relationship and who is liable as an “employer,” and the second briefing, which covered the evolution of discrimination and other claims under Title VII, USERRA, the ADA, the ADEA, and other federal laws, this briefing on tech-driven changes in the workplace provides practical advice for minimizing liability, given the changing realities of the workplace.

No word from the EEOC on the reinstated EEO-1 pay data requirement

March 6th, 2019  |  Pamela Wolf

At the time of press on March 6, there was still silence at the EEOC in the aftermath of a federal court in the District of Columbia’s March 4 declaration that the Office of Management and Budget’s stay of the EEOC’s pay data collection was “illegal.”

The court found that the OMB’s deficiencies were substantial and that it was unlikely that the government could justify its decision on remand. Vacating the stay, the court granted summary judgment to the plaintiffs in the lawsuit—the National Women’s Law Center and the Labor Council for Latin American Advancement—and ordered that the previous approval of the EEOC’s revised EEO-1 form “shall be in effect.”

EEO-1 Survey to open any day. On February 1, the EEOC announced that because of the partial federal government shutdown that ended earlier this year, the opening of the EEO-1 survey website had been postponed until early March 2019—any day now. The deadline to submit EEO-1 data will be extended until May 31, 2019, the agency said.

No quorum. The silence at the EEOC may be due, at least in part, to the fact that the EEOC at present lacks a quorum and, presumably, the ability to take certain actions, including approving new policies, guidance, and regulatory actions.

The EEOC’s five-member Commission includes only the Acting Chair, Victoria Lipnic, and one Commissioner, Charlotte Burrows. President Trump has nominated Janet Dhillon for a spot as Commissioner; she was approved by the Health, Education, Labor, and Pensions Committee on February 27. Her nomination has moved to the Senate floor for potential confirmation.

New pay data requirement. Under the Obama administration, the EEOC in 2016 agreed to revise the EEO-1 to include pay data segmented by sex, race, and ethnicity. The updated form, finalized after months of public comment, was designed to understand and address persistent and pervasive problems of pay discrimination.

The revisions expanded employers’ obligations to provide pay data as it related to sex, race, and ethnicity for the first time. This is data that employers already maintain in the normal course of business, and the majority of companies already submit EEO-1 surveys via electronic data submission. Because employers were being asked to report the data through a familiar form, the revision was claimed to be the least burdensome way of collecting data, according to Congressional Democrats who defended the revisions.

OMB stays implementation. The OMB approved the EEOC’s final product on September 29, 2016. However, in August 2017, the OMB delayed the update to the EEO-1 form, asserting that the revisions are “unnecessarily burdensome” and issuing an immediate stay in a brief memo issued by the Office of Information and Regulatory Affairs.

Employers await direction. Now that a federal court has vacated the OMB stay, employers undoubtedly are wondering whether they will be required to submit the pay data information required by the now-reinstated revised EEO-1 collection—not quite what most had previously planned to submit.

There remains a question as to whether the EEOC, operating without a quorum, has authority to take any action to change the now-valid, revised EEO-1 pay data requirements, or to delay employer submission of pay data.

It also is possible that a stay pending appeal of the revised form’s implementation may be obtained by the OMB.

Given these circumstances, employers may be wise to gather the pay data information so that it will be available should the current EEO-1 survey open with the revised data requirement in place.

Top labor and employment developments in January 2019

February 5th, 2019  |  Lorene Park

By Lorene D. Park, J.D.

In case you missed the in-depth coverage of Employment Law Daily in the past month, here’s a recap of key developments in the L&E community, including our editor’s choice for “Top Five.”

Highlights from the January 2019 recap include:

• The government shutdown
• The Supreme Court on arbitration issues
• The NLRB’s shift in defining “employee” status
• Developments in President Trump’s transgender military ban
• An en banc Seventh Circuit reverses course on disparate impact ADEA claims
• The Illinois Supreme Court on BIPA
• Some big settlements and awards

L&E Evolution Part II: Discrimination

October 25th, 2018  |  Lorene Park

In the second of a series of Special Briefings by Employment Law Daily, Senior Employment Law Analyst Lorene D. Park examines the evolution of federal labor and employment laws addressing discrimination and harassment based on sex (including pregnancy), age, race, religion, national origin, immigration status, LGBTQ status, military service, and more.

Highlights of this Special Briefing include:

• Changes in the definition of “sex,” with cases on same-sex harassment and stereotypes, and a Circuit split on whether Title VII prohibits sexual orientation discrimination

• Key Supreme Court decisions, including those establishing causation standards under the ADEA and Title VII, and those clarifying basic definitions (“sex” and “supervisor,” for example)

• Hot topics, such as: drug tests and medical marijuana; social media; appearance policies and race or religion; telecommuting, service animals, and other accommodations; wellness programs; caregiver discrimination; and implicit bias, among others

• Social movements and political activities impacting perceptions of discrimination and harassment, including the #MeToo movement and Trump’s policies on immigration and transgender members of the military

• Issues involving discrimination based on “perceived” race, religion, or disability

• Difficulties employers face if employees have conflicting legal rights (the tension between accommodating an employee’s sincerely held religious belief and avoiding bias against LGBTQ employees, for example)

As with the first briefing in this series, which covered changes in the employment relationship and who can be liable as an “employer,” this Special Briefing also provides practical advice for minimizing liability under Title VII, USERRA, the ADA, the ADEA, and other federal laws, given the changing realities of the workplace.

Free webinar on LGBTQ+ issues in the workplace

October 17th, 2018  |  Pamela Wolf

Please consider this a personal invitation to join me on October 25 at 2:00 PM Central (3:00 PM Eastern, Noon Pacific) for what promises to be an engaging and informative one-hour webinar on LGBTQ+ issues in the workplace. As many of you know, this can be a particularly thorny area for employers to navigate.

During our roundtable discussion, a panel of attorneys will provide their expert insights and practical guidance to help employers better understand the often complex LGBTQ+ issues that may arise in their own workplaces. We’ll be taking you through some “real life” scenarios.

Featured attorneys include Brooke Colaizzi, Member at Sherman & Howard L.L.C.; Eric Meyer, Partner at FisherBroyles, LLP; Michelle E. Phillips, Principal at Jackson Lewis P.C., and Nonnie Shivers, Shareholder at Ogletree Deakins.

Roundtable Discussion: Navigating LGBTQ+ Issues in the Workplace, a free webinar offering one hour of CLE credit, will address these issues and more:

  • Vulnerable applicants and employees;
  • Knowing LGBTQ+ discrimination when you see it;
  • Dealing with gender fluidity;
  • Proactive measures to prevent discrimination;
  • How to handle discrimination complaints.

Click here to register.