MONDAY MORNING MINUTE: April 15, 2019

Monday Morning Minute

In This Issue

EEO-1 Data Collection Update Yet Again

DOL Issues Proposed Rule on Joint Employer Status

EEOC Releases Fiscal Year End 2018 Data

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April 15, 2019

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EEO-1 DATA COLLECTION UPDATES CONTINUE....

If you followed our Monday Morning Minute the past few weeks, you know that Spognardi Baiocchi wrote about the EEO-1 Component 1 and 2 deadlines as well as the court battle that has been taking place surrounding the pay data due date. As an update to the proposed EEOC's deadline of September 30, 2019 for EEO-1 pay data, the National Women's Law Center (NWLC) has filed a response.

On April 8, the NWLC filed its response that objected to the proposed deadline of September 30, 2019 for the pay data collection and instead insisted that both Component 1 and 2 data should be due by May 31, 2019. It further asked the court to require the EEOC to show cause by April 19 if the EEOC cannot open the pay data collection in time.

The NWLC also asked the court to require an extension of the pay data collection requirement [generally] given that the requirement is currently scheduled to end on September 30, 2019 under the Paperwork Reduction Act.

At this time, despite the current state of the EEOC's data systems, it is unknown if the court will approve the EEOC's recommendation of a deadline of September 30, 2019 for pay data collection. There are many legal avenues being explored to delay the collection of such pay data beyond May 31, 2019, however at this time the only thing that is certain is uncertainty. Prudent employers should start thinking about how it would collect and safeguard the pay data for submission by May 31st if the court so requires.

Spognardi Baiocchi will continue to monitor this situation. Contact any attorney for further discussion on this topic.

DOL ISSUES PROPOSED RULE ON JOINT EMPLOYER STATUS

On April 1, the Department of Labor, Wage and Hour Division, issued a proposed rule to revise and clarify joint employer relationships under the Fair Labor Standards Act. The proposed rule comes after the Trump administration withdrew the proposed guidance issued under the Obama DOL which sought to expand joint employer coverage without rulemaking, especially to employers operating under a franchise business model. A finding of joint employer status can cause joint and several liability for the violations ostensibly caused by a separate employer.

The Department proposes a clear, four-factor test based upon well established precedent, examining whether the putative joint employer actually, rather than potentially, exercises the power to:

Hire or fire the employee;
Supervise and control the employ work schedules or conditions of employment;
Determine the employee's rate and method of pay; and
Maintain the employees employment records.

The rule seeks to return to a more balanced approach to finding joint employer status than sought by the Obama Administration. It provides several examples with explanations to clarify the rules reach. The Trump National Labor Relations Board also is engaged in rulemaking on joint employer status under the National Labor Relations Act, and reviewing over 29,000 comments on the issue.

The proposed rule should be studied by organizations who have subcontracted out or on-site, various work functions in the organization's operations, or who have common employee interchange between putative separate organizations or worksites. Call Spognardi Baiocchi if you have concerns about your franchise or subcontracting in your organization.

EEOC RELEASES FISCAL YEAR END 2018 DATA

Data Summary: Overall charges are down 9.3% from the previous reporting year, but there was a 13.6% increase in sexual harassment charges.

On April 10, the U.S. Equal Employment Opportunity Commission (EEOC) released detailed breakdowns for the 76,418 charges of workplace discrimination the agency received in fiscal year 2018.

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.

The FY 2018 data show that retaliation continued to be the most frequently filed charge followed by sex, disability and race. The agency also received 7,609 sexual harassment charges which is a 13.6 percent increase from FY 2017. Specifically, the charge numbers show the following breakdowns:

Retaliation: 39,469 (51.6 percent of all charges filed)
Sex: 24,655 (32.3 percent)
Disability: 24,605 (32.2 percent)
Race: 24,600 (32.2 percent)
Age: 16,911 (22.1 percent)
National Origin: 7,106 (9.3 percent)
Color: 3,166 (4.1 percent)
Religion: 2,859 (3.7 percent)
Equal Pay Act: 1,066 (1.4 percent)
Genetic Information: 220 (.3 percent)

* percentages add up to more than 100 because some charges allege multiple bases

In fiscal year 2018, EEOC attorneys filed 199 merit lawsuits alleging discrimination including 117 individual suits and 45 suits involving multiple victims or discriminatory policies and 37 systemic discrimination cases.

More information can be found HERE

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With over 50 combined years of experience among its 2 founding partners in these areas, we can assist businesses in developing custom solutions to today's tough issues. And as litigators, who combined have over thousands of trials "under their belts" before state and federal courts as well as administrative agencies (such as the NLRB) you will find no better advocate and partner.

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