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BREAKING: Pay Data Rules Placed on Hold for EEO-1 Form

August 30, 2017
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By Jo Bennett

The new rules announced in late 2016 revising the Employer Information EEO-1 report on pay data collection have been placed on hold.

On August 29, 2017, the Office of Management and Budget (OMB) informed the Equal Employment Opportunity Commission (EEOC) that OMB had initiated “a review and immediate stay of the effectiveness of those aspects of the EEO-1 form that were revised on September 29, 2016. These revisions include new requests for data on wages and hours worked from employers with 100 or more employees, and federal contractors with 50 or more employees. EEOC may continue to use the previously approved EEO-1 form to collect data on race/ethnicity and gender during the review and stay.”

The EEOC also announced: “The previously approved EEO-1 form which collects data on race, ethnicity and gender by occupational category will remain in effect. Employers should plan to comply with the earlier approved EEO-1 (Component 1) by the previously set filing date of March 2018.”

Read the EEOC announcement here and the OMB memo here.

Although many companies and their Human Resources teams no doubt are relieved that OMB has put on hold what many viewed as a burdensome data collection, employers should continue to be vigilant on compensation issues.  The EEOC’s strategic enforcement plan for 2017- 2021 continues the agency’s focus on gender-based pay discrimination in particular, and the Office of Federal Contract Compliance Programs, which has jurisdiction over federal contractors, continues its collection of detailed compensation data during compliance evaluations.

 

For more information regarding this or other labor and employment issues, please contact Jo Bennett, co-chair of Schnader’s Labor and Employment Practices Group.   

The materials posted on Schnader.com and SchnaderWorks.com are prepared for informational purposes only and should not be considered as providing legal advice or creating an attorney-client relationship. Please see our disclaimer page for a full explanation.

Think Accessibility When Designing Your Webpage and Apps

August 28, 2017

By Karen Baillie

On June 13, 2017, Judge Robert N. Scola Jr. of the United States District Court for the Southern District of Florida ordered Winn-Dixie Stores, Inc. to make its website accessible by persons with disabilities, including those who rely on screen readers and other adaptive software.  See Gil v. Winn-Dixie Stores, Inc., Case 1:16-cv-23020-RNS (S.D. Fla. June 13, 2017).  Judge Scola ordered the grocery store chain to implement a Web Accessibility Policy and to make its website conform to the Web Content Accessibility Guidelines 2.0 standards (WCAG 2.0).

The plaintiff, Mr. Gil, is visually impaired and relies on adaptive software including a JAWS screen reader.  He is very familiar with the options for adaptive software and works to train others to use technology.  He faulted the Winn-Dixie website for not allowing his screen reader to direct him to store locations, nor to access coupons or manage prescriptions through the pharmacy.  Judge Scola found that Winn-Dixie, a public accommodation, violated the Americans With Disabilities Act in failing to provide individuals with disabilities, “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.”  Slip Opinion at 10, quoting 42 U.S.C.  §12182(a).

Even though Mr.  Gil was not denied physical access to the store, Winn-Dixie violated the ADA because “[t]he services offered on Winn-Dixie’s website, such as the online pharmacy management system, the ability to access digital coupons that link automatically to a customer’s rewards card, and the ability to find store locations, are undoubtedly services, privileges, advantages, and accommodations offered by Winn-Dixies’ physical store locations. “  Slip Op. at 10.  “Therefore, Winn-Dixie has violated the ADA because the inaccessibility of its website has denied Gil the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations that Winn-Dixie offers to its sighted customers.” Id.

Judge Scola further found that WCAG is the industry standard for accessibility, noting that the federal government’s Access Board (an independent agency that promotes equality for people with disabilities) virtually adopted the WCAG guidelines in a final rule published January 18, 2017.  More information about the WCAG standards can be found at this link: Web Accessibility Initiative.

In recent years, website accessibility has become a hot issue.  Lawsuits have increased against restaurants, schools and businesses by individuals and advocacy groups seeking to spread awareness of the need to make sites accessible.  Business owners should think about accessibility at the initial stages of development for web applications and social media advertisements that link customers with their wares.  Common website problems that make it difficult for persons using adaptive software and others with disabilities include:

  • Important images missing text descriptions (“alt tags”)
  • Important content accessible only by people who can use a computer mouse
  • Color combinations made text difficult or impossible to see by those with low vision
  • Videos not captioned
  • Graphs don’t line up

For more information regarding this or other labor and employment issues, please contact Karen Bailliea member of Schnader’s Labor and Employment Practices Group. 

The materials posted on Schnader.com and SchnaderWorks.com are prepared for informational purposes only and should not be considered as providing legal advice or creating an attorney-client relationship. Please see our disclaimer page for a full explanation.

DOL Requests Feedback on Overtime Rule

July 27, 2017

By Jo Bennett

The U.S. Department of Labor is seeking public input on what to do with the Obama administration overtime rule.  In Wednesday’s edition of the Federal Register, the DOL published a “Request for Information Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees.”  Interested parties will have 60 days (until September 25, 2017) to provide comments.  A preview of the RFI is available here.

By way of recap, the DOL published the 2016 Final Rule on May 23, 2016 as part of the Obama administration’s focus on increasing pay equity. Under the Final Rule, the minimum salary required to classify workers as exempt was increased from $23,660 to $47,476, which is the 40th percentile of average weekly wages of full-time salaried employees according to the Bureau of Labor Statistics. The rule was set to go into effect on December 1, 2016, but a federal judge in the U.S. District Court for the Eastern District of Texas blocked the regulation nationwide. The case is currently pending before the Fifth Circuit Court of Appeals. At issue is whether the DOL has the authority to utilize a salary level test in determining the exempt status of executive, administrative and professional employees.

The Trump administration is no longer advocating the salary level ($913 per week) set forth in the 2016 Rule.  Citing Executive Order 13777, which tasked federal agencies with identifying for modification any regulations that inhibit job creation or interfere with regulatory reform policies, the DOL says it is evaluating the 2016 Final Rule with a focus on lowering regulatory burden.

The request for information seeks comment on the salary level test, the duties test, standard salary levels, the inclusion of non-discretionary bonuses and incentive payments in standard salary levels, and the exemption for highly compensated employees.  In addition, it solicits feedback about the impact that the 2016 Final Rule had on employers who made changes in anticipation of the effective date.

For more information regarding this or other labor and employment issues, please contact Jo Bennett, co-chair of Schnader’s Labor and Employment Practices Group.   

The materials posted on Schnader.com and SchnaderWorks.com are prepared for informational purposes only and should not be considered as providing legal advice or creating an attorney-client relationship. Please see our disclaimer page for a full explanation.

3d Circuit Clarifies Standard in Workplace Harassment Cases

July 18, 2017

By Jo Bennett

In a decision issued last week, the U.S. Court of Appeals for the Third Circuit clarified that a single comment may give rise to a claim of workplace harassment.  In its decision, issued in Castleberry v. STI Group, the court reinstated harassment claims brought by two African Americans who contended that a supervisor had used a racial epithet and that this comment, standing alone, was sufficient under the law to prove illegal workplace harassment.

At issue in the case was whether an employee claiming workplace harassment must prove that the objectionable conduct is severe, pervasive, or both severe and pervasive.  In Castleberry, the Third Circuit clarified that an employee must demonstrate either severity or pervasiveness; the employee does not have to demonstrate that the objectionable conduct is both severe and pervasive.

The case concerned two African-American men who were fired by the staffing agency STI Group while working on a project for Chesapeake Energy Corporation.  Along with other claims, the men brought suit alleging racial harassment. The District Court dismissed the harassment claims, reasoning that a single racial slur did not support a finding that the alleged harassment was “pervasive and regular.”

In its opinion, the Third Circuit took the opportunity to clarify case precedent, which has been inconsistently stated in past appellate court rulings.  At various times, the Third Circuit has held that the correct standard to prevail on a harassment or hostile work environment claim is “severe or pervasive,” “pervasive and regular,” or “severe and pervasive.”

In Castleberry, the Third Circuit stated that “[t] he correct standard is severe or pervasive. … (T)he distinction means that ‘severity’ and ‘pervasiveness’ are alternative possibilities: some harassment may be severe enough to contaminate an environment even if not pervasive; other, less objectionable conduct will contaminate the workplace only if it is pervasive.”

The court’s clarification suggests that employers may want to review their anti-harassment policies, revise them as necessary, and provide training to managers and supervisors.

For more information regarding this or other labor and employment issues, please contact Jo Bennett, co-chair of Schnader’s Labor and Employment Practices Group.   

The materials posted on Schnader.com and SchnaderWorks.com are prepared for informational purposes only and should not be considered as providing legal advice or creating an attorney-client relationship. Please see our disclaimer page for a full explanation.

Notice of Rights of Victims of Domestic Violence Now Required for New Hires in California

July 12, 2017

By Scott J. Wenner

Last September, California Governor Jerry Brown signed Assembly Bill 2337, which, effective July 1, 2017, requires California employers with 25 or more employees to provide written notice of workplace rights for victims of domestic violence, sexual assault and stalking.  Those rights, which include the rights to leaves of absence, accommodation and freedom from discrimination and retaliation, are found in Labor Code Sections 230 and 230.1. The new notice requirement is codified in Section 230.1 of the California Labor Code.

The California Labor Commissioner has posted a form that California employers may use to satisfy these notice requirements at the following link: Victims of Domestic Violence Leave Notice.

If an employer elects not to use the Labor Commissioner’s form, a written notice must be provided by the employer that is substantially similar in content and clarity.

The written notice may be provided electronically, so long as new hires are able to freely access and print it without cost or restraint. A provision in an employee handbook that includes the required information also would satisfy the notice requirements of Labor Code Section 230.1, but only if the handbook is given to all employees upon “hire,” which means the date when an offer of employment is accepted, and not on the employee’s first day of work.

Posting of the notice is not required, nor will posting satisfy the notice requirement in Section 230.1.  Compliance instead requires the employer to provide the notice to the employee directly, either by providing a physical copy of the notice or an employee handbook that contains an equivalent notice, or by providing it electronically in a direct fashion – e.g., by email attaching a copy of the notice or containing a link thereto.

For more information regarding this or other labor and employment issues, please contact Scott J. Wenner, past chair of Schnader’s Labor and Employment Practices Group. 

The materials posted on Schnader.com and SchnaderWorks.com are prepared for informational purposes only and should not be considered as providing legal advice or creating an attorney-client relationship. Please see our disclaimer page for a full explanation.

A Look at the EEOC’s Latest Guidance on National Origin

January 13, 2017

By Rachel A.H. Horton

The U.S. Equal Employment Opportunity Commission has issued new guidance addressing national origin discrimination under Title VII of the Civil Rights Act of 1964. The enforcement guidance is significantly more detailed than the last iteration of this guidance published in 2002. Although the overarching legal framework of Title VII has not changed much, the EEOC stakes out a number of new positions, which are highlighted here.

Title VII prohibits employers from discriminating against employees because of their real or perceived national origin. National origin is, in turn, a broad concept that includes the place where an individual or her ancestors are from as well as her physical, cultural, and linguistic characteristics. The EEOC has expanded this definition by making it clear that:

  • Employers may not discriminate against employees because they are associated with (for example, has a child with) a person of a different national origin.
  • A member of a particular national origin is capable of discriminating against someone of the same national origin.
  • Employment discrimination based on citizenship status is unlawful if it has the purpose or effect of discriminating based on national origin.
  • Title VII prohibits employers from engaging in “intersectional” discrimination, which is discrimination that targets a specific subgroup of employees, such as African men.

In terms of hiring practices, the EEOC now cautions against imposing a policy that screens out applicants who lack a social security number. Such a practice may have a disparate impact on new lawful permanent residents.

Some of the most significant changes relate to harassment, which was asserted in 37 percent of national origin discrimination claims filed in fiscal year 2015. The EEOC now notes that when a supervisor engages in harassment that includes a tangible employment action, such as firing, the employer is not entitled to assert a defense based on the employee’s failure to take advantage of the employer’s reporting system. Thus, an employer may be deprived of an otherwise-valid defense based on its corrective procedures where one of its supervisors repeatedly mocked a Russian employee’s accent and decided to demote that employee based on his national origin.

The EEOC also added guidance that focuses on human trafficking and discriminatory employment practices that adversely impact workers who have been illegally smuggled into the country. For example, the EEOC explains that it would be actionable retaliation for an employer to threaten to report to the government that its workers are undocumented if the workers participate in an EEO investigation. Similarly, the EEOC notes that compelled labor goes hand-in-hand with a hostile work environment and states that working under the threat of deportation is a factor in determining whether an employer is liable for national origin discrimination.

The guidance ends with a new list of “promising practices” that the EEOC encourages employers to consider implementing to help guard against national origin discrimination. These suggestions include translating policies into the languages spoken by employees and establishing written objective criteria, which are tied to business need, for evaluating applicants and employees.

For more information regarding this or other labor and employment issues, please contact Rachel A.H. Horton, a member of Schnader’s Labor and Employment Practices Group. 

The materials posted on Schnader.com and SchnaderWorks.com are prepared for informational purposes only and should not be considered as providing legal advice or creating an attorney-client relationship. Please see our disclaimer page for a full explanation.

PA Superior Court Clarifies that Employers May Not Mandate Payroll Cards

October 25, 2016

By Karen Baillie

It is helpful to have this clarification, even if perhaps this is not the news employers have been eagerly awaiting. On October 21, 2016, the Pennsylvania Superior Court weighed in on the issue of mandatory payroll cards. As we previously discussed here, the issue arose in the case of Siciliano v. Mueller. The case is a class action brought the employees of several McDonald’s restaurants operated by the Muellers. The employees claim that they were forced to receive their pay on paycards which charged fees for them to access their own money. (The payroll debit cards allowed only one free withdrawal per pay, and after that, they charged five dollars per withdrawal). The Pennsylvania Superior Court agreed with the lower court and found that mandatory payroll cards are not permitted under the Pennsylvania wage payment collection law.

The court focused on the non-voluntary nature of the cards and the fact the cards carried fees: “The use of a voluntary payroll debit card may be an appropriate method of wage payment. However, until our General Assembly provides otherwise, the plain language of the WPCL makes clear that the mandatory use of payroll debit cards at issue here, which may subject the user to fees, is not.” Siciliano v. Mueller¸No. 1321 MDA 2015, 2016 Pa. Super 229 (October 21, 2016). Therefore, employers of Pennsylvania employees should continue to follow our earlier guidance, to wit, procure employees’ advance written permission before paying them by debit card or direct deposit.

For more information regarding this or other labor and employment issues, please contact Karen Baillie, a member of Schnader’s Labor and Employment Practices Group. 

The materials posted on Schnader.com and SchnaderWorks.com are prepared for informational purposes only and should not be considered as providing legal advice or creating an attorney-client relationship. Please see our disclaimer page for a full explanation.

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