If a letter from the EEOC is in your virtual mailbox but you never open it, have you received it? Most of us are familiar with the requirement that a claimant who files an EEOC charge has 90 days to file a lawsuit after receiving what is usually required a “right-to-sue” letter from the agency. This is one of the deadlines that both plaintiff and defense counsel track on their calendars. But when is that notice officially “received” by the claimant — especially in these days of electronic correspondence? In Paniconi v. Abington Hospital-Jefferson Health, one Pennsylvania federal court decided to draw a hard line on when that date actually occurs.

A Cautionary Tale

Denise Paniconi worked for a hospital in Pennsylvania and filed a charge of discrimination with the EEOC alleging race and religious discrimination. The EEOC investigated and issued a right-to-sue letter dated September 8, 2021, which gave her 90 days to file her complaint. She filed her complaint 91 days after the EEOC issued the letter. The employer moved to dismiss the complaint for failing to comply with the 90-day deadline.

What ordinarily would just be a day counting exercise took a twist because of how the EEOC issued the notice. The EEOC sent both the plaintiff and her lawyer an email stating that there was an “important document” now available on the EEOC portal. Neither the plaintiff nor her lawyer opened the email or accessed the portal until sometime later. They argued that the 90-day filing deadline should run from the date that the claimant actually accesses the document, not from the date the EEOC notified them it was available.

The court dismissed the complaint for failing to meet the deadline. The opinion noted that although the 90-day period is not a “jurisdictional predicate,” it cannot be extended, even by one day, without some sort of recognized equitable consideration. Paniconi’s lawyer argued that the court should apply the old rule for snail mail  ̶  without proof otherwise, it should be assumed that the notice is received within three days after the issuance date. The court disagreed and pointed out that no one disputed the date that the email was sent  ̶   it was simply not opened and read by either Paniconi or her lawyer. The court said that there was no reason that those individuals did not open the email and meet the 90-day deadline.

Deadlines Are Important

This is another example of how electronic communication can complicate the legal world. The EEOC has leaned into its use of the portal, and the rest of the world needs to get used to it. The minute you receive an email or notice from the portal, you need to calendar that deadline. Some courts (at least this one) believe that electronic communication is immediate, and you may not get grace for not logging on and finding out what is happening with your charge. Yet another reason to stay on top of your emails.

We hope your 2022 is off to a good start and you are all managing the COVID-19 pandemic challenges. For this post, we wanted to take a break from COVID-19-specific topics to remind you of some new year to dos. Specifically, EEO-1 and OSHA Injury and Illness Reporting data is due in the coming months, and now is a good time to check your state’s minimum wage laws and, if necessary, increase pay for employees to ensure compliance.

EEO-1 Reporting – Deadline: May 17, 2022

The Employment Information Report (EEO-1), which requires certain employers to report demographic workforce data to the EEOC, is open for only six weeks this year. The tentative opening for EEO-1 reporting is set for April 12, 2022, and all reports should be filed no later than May 17, 2022. You may access the filing portal here.

Who needs to report?

  • Private sector employers with 100 or more employees (this number is calculated based on employees across all establishments)
  • Certain federal contractors with 50 or more employees (click here for more information on federal contractor reporting)

A new development this year is the discontinuation of the Type 6 report for establishments with fewer than 50 employees.

So, which type of report should you use?

  • If you have a single establishment company with 100 or more employees, use the Type 1 Report.
  • Multi-establishment companies are required to report using Type 2 (Consolidated Report) and Type 3 (Headquarters Report) reports, plus either Type 4 (Establishment Report for establishment with 50 or more employees) or Type 8 (Establishment Report for establishment with fewer than 50 employees) reports. Note that you must submit either a Type 4 or Type 8 report for each establishment.
  • For more information on EEO-1 Report types, see the EEO-1 fact sheet linked here.

To keep up with announcements from the EEOC regarding EE0-1 reporting, click here.

OSHA Injury and Illness Reporting – Deadline: March 2, 2022

Each year OSHA requires covered employers to report injury and illness data via Form 300A. The data should be reported through the Injury Tracking Application (ITA) portal, which you can access here. The deadline is on or before March 2, 2022.

Who needs to report?

  • Covered employers are those with 250 or more employees.
    • Reporting requirements are based on the size of the establishment. Establishment is defined as “a single physical location where business is conducted or where services or industrial operations are performed.”
  • Employers within specific industries that have at least 20 employees must also report (that list can be found here).
  • You do not need to report if:

(1) Your establishment had 19 or fewer employees during the previous calendar year, regardless of your industry; or

(2) You are on this list, regardless of the size of your establishment.

Other Key Notes for Reporting

  • Only current owners need to report. If you acquired the establishment mid-year, you must submit data only for the portion of the year that you owned the establishment.
  • Even if you had no recordable injuries or illnesses, you need to report.

To access OSHA’s frequently asked questions for reporting, click here.

You May Need to Update Employee Pay – State Minimum Wage Laws

Minimum wage increase was a hot topic in 2021. While not every state increased pay and the federal minimum wage amount stayed at $7.25 per hour, now is a good time to make sure you are in compliance with your state’s (and any state where you have employees working) wage laws. Click here for the U.S. Department of Labor’s chart of pay requirements per state.

We hope you find these reminders helpful and wish you a productive and successful 2022. As always, if you have questions about reporting, pay or other related employment issues, give your local employment attorneys a call.

The EEOC Extended EEO-1 Reporting Deadline Until 2021 – But Don’t Stop PreparingThe EEO-1 report — who doesn’t love preparing that? With recent changes it has only gotten more fun. Many employers waited for the EEO-1 reporting portal to open for the March 31, 2020 reporting deadline, but it never did. Now some employers are wondering when they should report. Remember that EEO-1 forms are supposed to be due every year, and you must file if you are:

  • An employer with 100 or more employees, and/or
  • A federal government contractor who has 50 or more employees and contracts of $50,000 or more.

What Happened?

On May 7, 2020, the EEOC announced its decision to delay EEO-1 filing for calendar years 2019 and 2020 until March 2021 because of COVID-19. The EEOC recognizes that the challenges faced by employers during COVID-19 could impact their ability to not only collect the required data, but also to provide “accurate, valid and reliable data in a timely manner.”

Update on What Is Required

As mentioned in our last post on this issue, the burden related to EEO-1 filing significantly increased when the EEOC started requiring employee pay data beginning with calendar years 2017 and 2018. Employers first filed that pay data in September 2019.

In Fall 2019, the EEOC announced that it may establish a less burdensome pay data reporting requirement. That issue is still unsettled. The EEOC has decided to take a close look at the pay data collected for calendar years 2017 and 2018 to determine “the future of pay data collection.”

What Should Employers Do?

Do not wait to start collecting the required data. The EEOC recommended that you start preparing now to submit data in 2021. Although it is unclear what the report will look like, it is still possible that some form of pay data reporting could be required – by the EEOC or by court order. So, employers should start thinking about the best way to collect pay data. Assuming that you will be required to submit it at some point, you may want to get with your lawyer (so any review is privileged) and think about doing a pay audit so you can address any perceived inequities now.

More State Updates on Unemployment Benefits: Should Employees Who Have Reduced Hours or Are Laid Off Due to COVID-19 File for Unemployment?Last week we blogged about unemployment changes in Alabama, North Carolina, Texas, and Virginia and what employers who have to reduce hours or lay off folks should be considering for their employees. Since our original post we have gotten questions about other states in our region (some of which have taken action), so we figured we would share the information (which we have outlined for you below).

Mississippi:

Friday evening, March 20, 2020, the Mississippi Department of Employment Security (MDES) announced it was modifying the rules to allow workers to file unemployment claims if they are:

  • Quarantined by a doctor or governmental entity due to COVID-19;
  • Laid off or sent home from work without pay due to the COVID-19 avoidance measures;
  • Diagnosed with COVID-19; or
  • Caring for an immediate family member who has been diagnosed with COVID-19.

The press release did not indicate specific changes to the rules or whether other requirements would be waived. However, the release encouraged affected citizens to apply immediately online. Notably, MDES did not say that individuals who must miss work due to child care issues can file claims.

Arkansas:

The governor issued an order waiving the week waiting period for receiving unemployment benefits and the requirement to continue to search for work. Applicants are encouraged to use the website to file claims related to the virus. This waiver is in place for 30 days and only applies to businesses that are temporarily closed and plan to reopen.

Georgia:

The Georgia Department of Labor adopted emergency rules on March 19 and added an update on March 22 The process is now all on line and the gist of the changes are:

  • Work search requirements are waived for claims filed on or after March 14, 2020;
  • Employees unable to work because of the COVID-19 emergency who expect to be able to return to work after the emergency ceases will be eligible for benefits. This rule applies to all claims filed on or after March 14, 2020, and includes an individual:
  • “Quarantined or self-quarantined on the advice of a licensed medical professional;
  • Sixty (60) or more years of age;
  • With a recognized medical condition making that individual particularly susceptible to COVID-19;
  • Who is a caregiver and resides with someone identified in part (b) or (c) of this subparagraph; or
  • Who is a custodial parent or legal guardian of a minor whose school is closed due to COVID-19 and is unable to secure childcare.”
  • Georgia employers must file partial claims on behalf of their full or part time employees if they temporarily reduce work hours or there is a partial or total company shutdown caused by the COVID-19 emergency on or after March 15, 2020. Failure to do so could result in the employer having to reimburse GDOL for the full amount of unemployment insurance benefits paid to the employee.
  • An employer’s account may not be charged for “certain benefits paid for unemployment due to the COVID-19 public health emergency, including benefits paid on partial claims filed on line.”

Louisiana:

The Louisiana Workforce Commission issued a statement relaxing some of the rules on unemployment benefits. If a person has (1) work hours reduced due to COVID-19; (2) a workplace that is temporarily shut down due to the virus; or (3) been instructed to stay home due to the virus, then they can immediately file for unemployment benefits. The week waiting period and requirements for continued search for work have been waived for those categories of unemployment. There are stories about the website crashing, however, due to high usage.

South Carolina:

The South Carolina Department of Employment and Workforce issued guidance on unemployment benefits making clear that a loss of employment because of the COVID-19 emergency renders an employee eligible for benefits. The FAQ addresses employment losses caused by shut down, layoffs, or reduced hours. Finally, it also states that an employer’s account will not be charged for benefits paid because of a COVID-19 related shutdown.

Tennessee:

The Tennessee Department of Labor and Workforce Development has a page devoted to COVID-19 issues.  It also has FAQs posted that answer many questions and promises to be updated.  Employees who meet other requirements and are (1) unemployed because of a COVID-19 shutdown or (2) quarantined or directed to isolate by a medical professional or health authority, can apply for benefits.

New H-1B Visa Cap Process Still on Track: USCIS Releases More Details on Electronic Registration ProcessAs we’ve previously explained, some big changes are coming this year to the H-1B visa process. Employers use H-1B visas to temporarily employ workers in “specialty occupations” – generally, jobs that require a bachelor’s degree or higher in a specific specialty or its equivalent.

Each year, the government makes available 85,000 new cap-subject H-1B visas, but, in recent years, the demand has far outstripped the supply. As a result, U.S. Citizenship and Immigration Services (USCIS) has conducted a lottery to determine which petitions would be adjudicated. In 2019, more than 201,000 petitions were filed for the 85,000 cap-subject H-1B visas, meaning USCIS did not even consider over half the petitions.

What’s Changing?

Under the prior process, employers had to submit fully prepared petitions for the cap-subject H-1B visas during the first week of April. Then, after the petitions were filed, USCIS conducted the lottery and adjudicated the lucky 85,000 petitions selected. As a result, many employers incurred considerable effort and expense filing full-blown petitions, only to find out that their petitions would not be adjudicated.

Beginning this year, USCIS will use a new process that should improve efficiency and reduce employer costs. Under this new process, employers will file electronic pre-registrations for prospective H-1B employees. USCIS will then conduct the lottery and identify the registrants who were selected. Only if a registrant is picked in the lottery will the employer be required to file a full-blown H-1B petition. This new process should save considerable time and expense as it will allow employers to avoid preparing and filing petitions that don’t get selected for adjudication.

What’s the Latest?

USCIS recently provided some additional details about the timing and information required for the initial registrations. Unless there is a last-minute change, employers will submit their registrations between March 1 and March 20, 2020. These registrations will be submitted through an H-1B registrant account in the myUSCIS online portal, which is currently available for certain other USCIS filings. At present, the online portal does not permit anyone to create an H-1B registrant account, but USCIS has indicated that it will allow the account creation prior to the March 1-20 submission period. Authorized attorneys will be allowed to file H-1B registrations for employers.

As part of the electronic registration process, the employer or its attorney will be required to provide some basic information about both the employer and the prospective H-1B employee. This includes the employer’s legal name, Employer Identification Number (EIN), primary office address, and the name, job title, and contact information of its authorized signatory, as well as the employee’s name, gender, date of birth, country of birth, county of citizenship, and passport number. The employer will also be required to pay a $10 non-refundable fee for each registration, using a link to the pay.gov portal.

The initial electronic registration will not require information about the position being offered or the employee’s qualifications for that position. However, before submitting the registration employers should carefully evaluate whether the position is a “specialty occupation” and whether the employee qualifies for the position. In filing the electronic registration, the employer will be required to attest, under penalty of perjury, that it intends to file a petition for the foreign worker if selected in the lottery. USCIS has indicated that cases selected in the lottery that are not filed may be flagged for fraud, so employers need to consider whether they can follow through with a viable petition before submitting the electronic registration.

USCIS has stated that it expects to conduct the lottery and notify employers about the selected registrants no later than March 31, 2020. If a registrant is selected, USCIS will include the applicable petition filing period with the notice of selection sent to the employer. The regulations relating to this new process indicate that employers may begin filing petitions for selected registrants as early as April 1 and that they will have at least 90 days from the date of registrant selection to get the H-1B petition filed. According to USCIS, it will adjudicate filed petitions in the order they’re received.

What’s Next?

Some of the details about the new process are still unclear, but USCIS has promised to provide additional information before registration begins on March 1. Employers interested in sponsoring foreign workers for cap-subject H-1B visas this year need to be gearing up now and should stay tuned as more information is made available.

The EEOC’s revised EEO-1 form, which now includes employee pay data, must be filed for covered employers for calendar years 2017 and 2018 by September 30, 2019. Remember that EEO-1 forms are required of all employers with 100 or more employees, as well as federal government contractors who have 50 or more employees and contracts of $50,000 or more. The EEOC posted updates for the new reporting requirements here.

What Is Required

The EEO-1 now must include W-2 earnings for all employees within an EEO-1 job category by placing those employees within 12 “pay bands.” For example, when using “pay band 4,” an employer would place a number within each EEO-1 job category representing the total number of employees in that category who made between $30,680 and $38,999 gross for the prior 12 months, all sorted by gender and race of course. On a later page of the form, the total number of hours worked for each category must be included. An example of the form is below and can be downloaded from the EEOC website portal.

Don’t Dally on Your Data: Pay Data Required on EEO-1 Forms by September 30, 2019

How this Happened

Employers may recall that the new pay reporting requirements were first introduced in 2016. Much has happened since our original post, including a stay of the new requirements, but we basically are back to where we started, with new requirements for including pay data now in effect.

The way “we got here” related to the change in administrations in 2017. After the EEOC issued its new rule, it was approved under the procedure of the Office of Management and Budget (OMB) in 2016 before the presidential election. About a year later though, in August 2017, the OMB reconsidered its decision, announced that the new rule was overly burdensome and lacked utility, and stayed its prior approval. Lawsuits by interest groups quickly followed challenging the OMB’s reconsideration. Federal District Judge Tanya Chutkan in D.C. sided with these groups and found the OMB’s new decision to be “arbitrary and capricious.” The court thus vacated the stay from 2017 and ruled that the new reporting requirements should go into effect immediately. That judicial decision was issued on March 4, 2019. Readers may recall that, during this time frame, the federal government underwent a “shutdown” which resulted in the EEO-1 submission date being extended to the end of May 2019. The EEOC again extended that deadline until the end of September 2019.

And, yes, an appeal has been filed, so stay tuned. However, Judge Chutkan’s order has not been stayed, so her decision is the current state of the new reporting requirements.

What this Means

The burden related to filing EEO-1s has obviously increased significantly and the time frame is short. Employers have a lot more data to gather. This data no doubt comes from different sources within a business. The ultimate information provided could be used against the employers submitting it. So, regardless of what may happen in the future, companies should begin compiling this data immediately and double checking to ensure that it is very accurate.

Yes to Getting Paid for Getting Dressed? Doesn’t Meet the Test, Says 11th CircuitWhen do you have to pay an employee before a shift? In Llorca v. Sheriff (Collier County, Florida), the Eleventh Circuit waded into the rich history of what types of pre-shift activities might qualify for hourly compensation. As we have written about before, the primary legislation dealing with dressing for and driving to and from work is the Portal-to-Portal Act of 1947, as amended by the Employee Commuting Flexibility Act of 1996. That act states that an employer is not on the hook to pay its employees for time travelling to and from work (a regular commute) or for activities that are “preliminary to or postliminary to” the “principal activity” of the job. The U.S. Supreme Court established a test that preliminary or postliminary work could only be compensable if it was an “integral and indispensable part of the principal activities.” Easy, right?

The Facts

Mr. Llorca and his cohorts were deputy sheriffs in Collier County, Florida, and were required to show up for work wearing their uniforms and certain protective gear. They were allowed to put on this equipment and clothing at home—and they did that. The deputies also commuted to and from work in marked patrol cars. During that commute, they were required to have their radios on and to respond to any emergencies if they heard them. The county did not pay the deputies for the time spent donning the protective equipment and uniform or for any time just riding to and from work—although they were paid if they had to respond to an emergency. Plaintiffs filed suit under the FLSA for that uncompensated time. The lower court dismissed their case, and they appealed.

Where and How You Get Dressed May Matter

The Eleventh Circuit opinion addressed the donning protective equipment and commuting claims separately. On the dressing claim, the court looked at whether putting on the protective equipment was both integral and indispensable to the deputies’ primary job of law enforcement. The opinion notes that this inquiry is “fact-intensive and not amenable to bright-line rules.” The court found that donning and doffing the uniform and protective equipment was an entirely separate activity from the deputies’ principal law enforcement duties—enforcing traffic laws, responding to emergencies and engaging in crime protection—so not compensable. The court also relied on DOL regulations that held that changing clothes normally is among the preliminary and postliminary activities that are non-compensable.

The court also found it significant that the deputies were allowed to dress at home. The DOL has found that changing clothes at home is not compensable and the court compared the situation to a chemical plant employee who has  to don specific chemical exposure suits while at the plant. That type of changing activity would be considered both integral and indispensable to the job and therefore recoverable. In this case, the Eleventh Circuit denied the wage claim.

Riding to and from Work

With regard to the commuting time claim, the court stated that this type of travel is exactly what the Portal-to-Portal Act attempted to exempt from the wage requirements of the FLSA—even if you are in a company vehicle. The fact that the officers might also have to be responsive to possible emergencies did not trouble the Eleventh Circuit in finding that it was not compensable time. Again, a DOL regulation also provided the court with support by holding that a police officer who is off duty, but has to have the radio on for emergency calls, is not working during the travel time. Other circuits had agreed on this point and the court noted those cases in denying the claim.

Is Dressing and Driving Always Non-Compensable?

As the court explicitly stated, these types of claims are decided on a case-by-case basis and are very fact driven. However, there are some good tips we can take from this case.

  • If an employee is able to dress at home, that is most likely not going to be a compensable activity. However, if there are pre-or post-shift activities that have to occur on site–specific location-based protective equipment, showering due to workplace exposures, etc.–that might be compensable.
  • Just because an employee drives a company vehicle doesn’t make the time compensable. But if you require someone to check the mail on the way into work or deliver a bank deposit on the way home that may turn part of the ride into a compensable event.

Again, the best bet is to have discussions with your employees about their work requirements and set expectations for how you plan to pay them.

The Waiting Is the Hardest Part:  Fifth Circuit Rules on Compensability of Pre-Shift Wait TimeWhile the Portal-to-Portal Act sounds more like a science fiction movie than a wage statute, it comes into play every day for hourly employees. Enacted in 1947 in response to litigation following the relatively new (at the time) Fair Labor Standards Act, the act attempts to provide rules for when employees must be paid when they may not be actually performing their duties. Specifically, FLSA prohibits employees from seeking wages for time spent:

  • Traveling to and from the actual place where they perform the principal activities of their job, and
  • Activities which are preliminary or postliminary to those work activities.

The purpose of the law was to only compensate employees for activities integral and indispensable to their work.

Prior Court Decisions

Case law after the passage of the act further defined what counted and what didn’t. For example, courts held that for employees who manufactured batteries and worked with dangerous chemicals and fumes, time showering and changing clothes after work counted as integral and indispensable to the job and should be paid. However, courts held that time waiting to don protective gear (not the time actually spent putting on the gear) was not compensable under the Portal-to-Portal test.

More recently, courts have addressed post-shift security screenings of employees to see if that waiting time was compensable. In Integrity Staffing Sols., Inc. v. Busk, the Supreme Court held that since mandatory security screenings of warehouse employees’ were not related to their jobs of retrieving and packaging products for shipment, the time waiting for the post-shift security screenings was not compensable. Other state courts have followed suit.

So What Did the Fifth Circuit Do?

On November 9, the Fifth Circuit issued an opinion dealing with construction workers on an oil drilling operation. The plaintiffs were scaffolding workers that had to park in a remote lot and ride company buses to the refinery. While their shifts started at 7 a.m., the buses sometimes delivered them to the refinery earlier, and they had to wait around until the shift started. They filed an action arguing that the time they had to wait between being dropped off and the start of the shift was compensable because they were not allowed to perform any work during that time, but it was beneficial to the employer.

The Fifth Circuit held that the test for Portal-to-Portal compensability was whether the wait time was integral and indispensable to the principal activities they were employed to perform. Here, plaintiffs erected and dismantled scaffolding. During the wait time, they were not undergoing safety training, donning safety equipment or completing paperwork—all of that was done after 7 a.m. and paid. Instead, most of the workers testified that they used the wait time to “chat” or “smoke.” They argued that since the wait time was required by and benefited the employer, they should be paid for it.

The court disagreed. It held that under the Busk decision, the fact that an employer required an activity and that it may benefit the employer was not enough to make it compensable. Instead, the workers had to show that the preliminary wait time was integral and indispensable to their work erecting and dismantling scaffolding. The proof did not show that it was, and therefore they were not entitled to compensation for it.

What to Do with Waiting Employees?

If there are things that your employees are having to do before or after a shift, you need to be sure of what they are actually doing. If they are waiting for something like a post-shift security screening, that time may not be compensable. If they are donning safety equipment or cleaning off after a dangerous activity, it may be compensable. This decision shows that it is important to have well-defined rules as to when a shift begins and what is required of an employee pre- or post-shift.

The EEOC’s fiscal year just ended and now it is releasing news of its successes. Although this is a look back, it gives us all insight as to what is important to the Commission and, perhaps, how we can stay off its radar. While the official report is being released today, here are some highlights.

Tis the Season: The EEOC’s Year-End Reports Are Out TodayMore Efficiency, Quicker Resolution?

The EEOC is working on being more efficient and thinks it is making some progress. First, offices are prioritizing charges to focus on meritorious charges and disposing of charges more quickly. It received more than 84,000 charges of discrimination in the last fiscal year and, through its improved efficiencies, reduced its backlog to the lowest it has been in 10 years.

Another innovation is the new EEOC Public Portal that was just launched nationwide. This appears to be the flip side of the employers’ Respondent Portal that we have been using for the last few years. Employees can now find out how to file a charge, set up interviews with the EEOC and check the status of their charges all from the comfort of their homes.

More Money, More Lawsuits

As with so many government agencies, the EEOC is touting the amount of money it has recovered. The EEOC collected nearly $400 million from employers in the private sector and state and local government. Of that amount, the vast majority ($355.6 million) was paid voluntarily — through mediation, conciliation and other administrative enforcement.

On the litigation front, the EEOC recovered $42.4 million through litigation last year. The EEOC also stepped up the number of lawsuits it filed. The commission filed 184 lawsuits, more than doubling the number from FY 2016. Of the 184 suits, about 67 percent were for individuals, while only 16 percent were systemic suits.

Training Resources

You can now have the EEOC Training Institute staff train your supervisors (Leading for Respect) and employees (Respect in the Workplace). I have a client who has had the EEOC come provide harassment training for the last several years, and it looks like the Commission is institutionalizing those efforts. As the program is new, I cannot tell you what it is like. However, it is certainly something to consider, particularly in the wake of recent harassment complaints.

Takeaways

First, the EEOC is clearly trying to reduce the amount of time a charge spends with the agency. We have all had charges that were pending for more than two years—which then means you could have to defend a lawsuit with a back-pay figure that is already out of control. Perhaps the improved efficiencies will make these stale charges a thing of the past.

Second, the EEOC wants to resolve the charges early and is having some success doing so. I always talk with clients about EEOC mediation—and it works with many (although not all) charges. I have also noticed that EEOC investigators try to encourage settlement discussions even when the parties have not agreed to mediate the charge. Although I was initially leery of having the purportedly neutral investigator orchestrate negotiations, for the most part I have found the investigators’ efforts to be helpful and have resolved some charges (usually low dollar) in that way.

Third, note that the majority of the EEOC’s lawsuits are filed on behalf of individuals —not multiple plaintiffs or systemic issues. The EEOC has a list of priorities (harassment, pay disparity and disability are perennial favorites) and wants to make law on those issues. These numbers make clear that the Commission is willing to make that law one plaintiff at a time.

Finally, IMHO the best training involves your employment counsel. However, the EEOC’s training resources are worth considering. If you use these resources, it will be tough for the Commission (or a plaintiff’s lawyer) to argue that you don’t take prevention seriously.

coworkers_in_warehouseYesterday, the U.S. Supreme Court unanimously held that Amazon does not have to pay its temporary warehouse workers for the time that they spend waiting in line to go through security checks as they leave the facilities. The workers’ class-action lawsuit claimed that they had to undergo end of shift screenings to prevent theft and that the process, including waiting in line, could take as long as 25 minutes per shift, all of which is unpaid.

The U.S. Supreme Court examined the definition of “preliminary” and “postliminary” activities, as they related to the Portal-to-Portal Act. Justice Clarence Thomas wrote that the security screenings at Amazon were not “integral and indispensable” to the workers’ jobs and therefore did not mandate pay for the time spent going through the process. The Court’s opinion reversed the Ninth Circuit’s finding that the screenings were for the company’s benefit and were a necessary component of the work. Justice Thomas said that the correct test was whether the screening was tied to the employee’s “productive work.” He noted that Amazon could eliminate the security screenings altogether “without impairing the employees’ ability to complete their work.”

Employers should note that this was a limited ruling only dealing with these type security screenings. Preliminary and postliminary activities that relate to worker safety and efficiency will still require payment. For example, workers who must shower and change clothes due to their close proximity to toxic materials will still need to be paid for that time. However, this opinion may indicate the high Court’s willingness to closely scrutinize activities that occur before or after actual work or production.