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Top labor and employment developments for April 2019

August 22nd, 2019  |  Pamela Wolf

In case you missed the in-depth coverage of Employment Law Daily for April, here’s a recap of some key developments in the L&E community.

Highlights from the April 2019 recap include:

  • EEO-1 2017 and 2018 pay data collection reinstated
  • DOL’s Wage and Hour Division floats 4-factor joint employer test
  • Supreme Court rules on class arbitration, takes up LGBTQ protections
  • DOL opinion letter that “gig” workers are independent contractors

A host of notable federal circuit court decisions and NLRB rulings are also included.

Top labor and employment developments for May 2019

June 10th, 2019  |  Joy Waltemath

By Joy P. Waltemath, J.D.

In case you missed the in-depth coverage of Employment Law Daily for May, here’s a recap of some key developments in the L&E community.

Highlights from the May 2019 review include:

  • DOL, EEOC, NLRB reveal regulatory agendas.
  • DOJ argues (in opposition to a certiorari petition) that a purely lateral job transfer is actionable under Title VII.
  • House Democrats attempt to move employee-friendly legislation on mandatory arbitration (Restoring Justice for Workers Act), LGBTQ discrimination (Equality Act), and strengthening workers’ rights under the NLRA (Protecting the Right to Organize Act).
  • The NLRB determines Uber and UberBLACK drivers are independent contractors.
  • Abortion emerges as an employment law issue.

Notable federal circuit court decisions and a few interesting district court decisions also are included.

Let’s talk about what’s been happening at L&E federal agencies

March 19th, 2019  |  Pamela Wolf

Please join me on March 26 at 12:00 Noon CT (1:00 PM ET) for a free, one-hour roundtable discussion at which a top-notch panel of legal experts will take us through a “check-in” of notable developments at the three major labor and employment federal agencies—the EEOC, the DOL, and the NLRB.

The roundtable discussion will include:

  • Agency enforcement priorities
  • Today’s compliance landscape
  • Practical guidance on emerging compliance issues
  • Best practices to avoid common problems

We have a great panel of seasoned attorneys ready to share their insights with attendees:

  • Brooke Colaizzi, Member, Sherman & Howard;
  • Suzanne L. Martin, Shareholder, Ogletree Deakins;
  • Stephanie Peet, Principal, Jackson Lewis;
  • Connie Bertram, Shareholder, Polsinelli; and
  • Chris Bourgeacq, Founder, The Chris Bourgeacq Law Firm, PC.

Click here to register.

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.