Wednesday, May 15, 2019
EEO-1 Reports:
What You Could Be Doing Wrong and How to Fix It

As a result of a recent court opinion, the U.S. Equal Employment Opportunity Commission (EEOC) is enforcing the requirement that employers with 100 or more employees (or more than 50 employees if a federal contractor) file detailed data on wages and hours worked. 

The EEOC announcement can be found in the Federal Register.

The EEOC may use this data to identify potential claims of wage gaps and pay disparities by sex, among other potential issues. Here is what you need to know:

  • Employers are required to file their EEO-1 Component One forms for 2018 by May 31, 2019. The EEOC will only permit a one-time, two week extension of this deadline. 

  • Employers will be required to submit Component Two data for 2017 and 2018 by September 30, 2019. The EEOC expects to make the Component Two portal available to employers by July 15, 2019.

  • The Component Two form will require you to report data on wages and hours worked for 2017 and 2018. Specifically, it will require you to report the wage information from Box 1 of the W-2 form and total hours worked for all employees by race, ethnicity, and sex within 12 different pay bands. Thus, you should begin testing your data systems NOW to determine how you can access the required data for 2017 and 2018.

  • The EEOC may use this data to run analyses and identify potential unequal pay claims. Thus, you should attempt to identify any potential issues before the EEOC does. This may include auditing your pay practices and identifying any pay gaps that exist; determining whether they are justified based on legitimate, non-discriminatory reasons; or whether you need to take corrective action to address any pay gaps you identify. We can assist you with identifying potential issues, but this should be done as soon as possible so that there is time to remedy the issues before the September 30 deadline.

  • Employers with fewer than 50 employees may also want to consider changing their EEO-1 report type from a Type 8 to a Type 6. The Type 8 report requires the same level of detailed data as required of larger employers, while the Type 6 report only requires reports on the total number of employees. If you need assistance identifying the proper type of EEO-1 report, our attorneys can assist.
In Favor of Arbitration:  
Supreme Court Rules Class Arbitration Provision Must be Express

The U.S. Supreme Court issued its opinion in Lamps Plus, Inc. et al. v. Varela on April 24, 2019 (No. 17-988). The Lamps Plus opinion continues this court’s trend of favoring and enforcing arbitration agreements under the Federal Arbitration Act (FAA) and has potentially broad implications beneficial to employers. 

In Lamps Plus , an employee brought a class action lawsuit against his employer, Lamps Plus, on behalf of approximately 1,300 employees whose tax information was hacked from the company. At the beginning of his employment, the employee had signed an agreement requiring him to bring all claims against his employer in arbitration instead of filing suit in a court. Thus, when the employee filed suit, Lamps Plus sought an order to compel arbitration pursuant to the terms of the parties’ agreement. Lamps Plus argued that the agreement required the employee to proceed in arbitration as an individual. The employee argued the agreement was ambiguous, and thus, he should be allowed to pursue arbitration on behalf of a class. On appeal, the Ninth Circuit applied a California law requiring courts to interpret ambiguous provisions in a contract against the drafter—in this case, against Lamps Plus. Thus, the Ninth Circuit held that the employee’s claims were subject to arbitration, but he should be permitted to pursue class arbitration because of the ambiguity in the agreement.

Supreme Court to Hear LGBT Workplace Bias Cases
On April 22, 2019, the United States Supreme Court agreed to hear three cases addressing workplace discrimination on the basis of sexual orientation and gender identity. 

Currently, Title VII of the Civil Rights Act of 1964 protects discrimination on the basis of sex. The court will decide whether “sex” includes gender identity and sexual orientation. Oral arguments are expected during the fall term, which begins in October. 

Thus, we can expect a decision from the Supreme Court in late 2019 or early 2020. Our attorneys will monitor these cases closely, and provide further information once the Court issues an opinion.
A summary of recent decisions received for Friday, Eldredge & Clark Labor and Employment clients:

Summary Judgment Granted.   The employer was granted summary judgment on the plaintiff’s Title VII race and retaliation claims on the ground that applicable labor law preempted court review of specific questions conclusively determined in the labor matter and fundamental to the employment claims.  

The Court ruled, in the alternative, that the plaintiff had failed to demonstrate a genuine issue of material fact. 

Attorney: Wayne Young

Summary Judgment Granted . The Eastern District of Arkansas granted summary judgment in favor of the employer on employee’s claims of race discrimination and retaliation based on failure to promote the employee and the elimination of his position during a reduction in force. Regarding the failure to promote, the court found that the employee selected for the position was more qualified, and that the employer had met its burden to state a legitimate, non-discriminatory reason for the promotion decision. Regarding the reduction in force, the court found that positions held by both African Americans and Caucasians were eliminated, and thus, the decision to eliminate the employee’s position was not discriminatory. 

Attorney: Khayyam Eddings
The information was written by the attorneys in the Labor and Employment Practice Group at Friday, Eldredge & Clark, LLP. This is not a substitute for legal advice and should be considered for general guidance only. For more information or if you have further questions, please contact one of our Labor and Employment Attorneys.
Labor and Employment Practice Group
Employers today are facing an ever-changing legal landscape. Our Labor and Employment attorneys take a proactive approach to assist clients in the   development and implementation of effective strategies to meet these specific needs.

With an eye toward avoiding conflicts before they arise, we can guide you through new developments in the law, provide you with options and help you make informed decisions. In those instances where litigation is necessary, our attorneys are prepared to represent you in state or federal court, before regulatory agencies and other tribunals. It is our commitment to provide exceptional client service, value-added legal advice and cost-effective representation concerning all aspects of your employment-related legal matters. 
About the Firm

Friday, Eldredge & Clark, LLP serves business, non-profit, governmental and individual clients in Arkansas and across the United States. It is one of the oldest law firms in the state and has been the largest Arkansas-based law firm for more than 50 years. The firm has practice areas focusing on General Litigation; Class Action and Business Litigation; Railroad; Labor and Employment; Medical Malpractice; Public Finance; Healthcare; Estate Planning and Probate; Employee Benefits; Real Estate and Commercial Transactions; and Merger and Acquisitions. Friday, Eldredge & Clark has offices in Little Rock, Fayetteville and Rogers, Arkansas.

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