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If you transfer employees with no loss of pay or status, can they sue you under Title VII? Right now, it depends on where you live and what your local federal circuit has ruled. That could change.

The Supreme Court will soon decide whether Title VII prohibits discrimination in transfer decisions if the transfer decision did not cause a significant disadvantage. In Muldrow v. City of St. Louis, Missouri, the Eighth Circuit Court of Appeals held that Title VII only prohibits adverse employment actions that result in a materially significant disadvantage for the employee. Other appellate courts have held that a forced lateral transfer is an adverse employment action, even if the employee cannot demonstrate any additional harm resulting from the move. The D.C. Circuit and Sixth Circuit have rejected the reasoning of the Eighth Circuit that Title VII requires additional harm above a discriminatory transfer. Though not as explicit, the Ninth Circuit likewise rejects a narrow adverse-employment-action rule. The Third Circuit, however, is more restrictive — minor actions such as lateral transfers are generally insufficient under Title VII. The remaining circuits approach the issue somewhere in between. Also of importance, the Fifth Circuit recently uprooted its restrictive “ultimate employment decision” standard. This circuit split has prompted the Supreme Court to intervene, and its forthcoming decision could clarify what constitutes an adverse employment action under Title VII.

Muldrow’s Job and Transfer

Jatonya Muldrow, who served as a sergeant in the Intelligence Division of the City of St. Louis Police Department, is at the center of this case. In her role, she handled high-profile public corruption cases, oversaw the Gang Unit, and was deputized to work with the local FBI unit. In that position, she enjoyed various benefits, such as wearing plain clothes, working a predictable Monday-to-Friday schedule, having access to an unmarked FBI vehicle, and the opportunity to earn substantial overtime pay (up to $17,500 annually).

In 2017, a new captain assumed command of the Intelligence Division and made personnel changes that included transferring 22 officers (17 of whom were male) to other positions. Muldrow was one of the 22 officers transferred to a new role. In her new position in the Fifth District, her responsibilities focused on administrative tasks and supervising patrol officers and responding to serious crimes like homicides. Her new job required her to work a rotating schedule, including weekends, wear a police uniform, and use a marked police vehicle. Her salary remained unchanged, and while she lost eligibility for the FBI’s annual overtime pay, she had other overtime opportunities.

She immediately began applying for other roles, and after about eight months got back into the Intelligence Division.

The Lawsuit and Appeal

Muldrow filed a Title VII sex discrimination suit claiming her transfer was motivated by new leadership wanting a man in her previous role. She alleged the transfer was an adverse employment action under Title VII because her Fifth District work was more administrative (more akin to entry-level work) and less prestigious than her previous work in the Intelligence Division. 

Both the district court and the Eighth Circuit ruled in favor of the police department. They determined that Title VII only bars adverse employment actions that lead to a materially significant disadvantage. In the courts’ view, Muldrow’s transfer did not result in such a disadvantage because her pay and rank remained unchanged, she still held a supervisory role, her duties included investigating important crimes, and her time in the Fifth District did not harm her future career prospects. The Eighth Circuit specifically held that “an employee’s reassignment, absent proof of harm resulting from that reassignment, is insufficient to constitute an adverse employment action.”

The Supreme Court agreed to hear the appeal from the Eight Circuit.

Supreme Court’s Decision and Effect on Employers

The Supreme Court’s decision could clarify what constitutes an actionable adverse employment action under Title VII. This comes after the Fifth Circuit’s recent decision uprooting decades’ long precedent and holding that employees are not limited to claims only when subjected to “ultimate employment decisions” like hiring, promotions, and firing. The Fifth Circuit, however, did not clarify what actions are and are not actionable adverse employment actions beyond the scheduling policy before it. The Supreme Court is thus in prime position to offer guidance on this issue.

At its core, Muldrow’s case challenges the notion of what workplace actions an employee can fight in court. Thus, the decision could determine the scope of actions that Title VII covers. This could influence how businesses formulate long-term human resources strategies and staffing decisions, emphasizing the need for employers to stay agile, informed, and ready to adapt.

The Supreme Court scheduled oral argument for Muldrow v. City of St. Louis, Missouri on December 6, 2023. We may not get a decision until April or May 2024. In the meantime, cautious employers will review these kinds of transfer and scheduling decisions with an eye to defending them in court.

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If you transfer an employee to a job with no loss in pay or title but the employee thinks it is less desirable, can that employee sue you for discrimination under Title VII? While it depends on the facts, in Muldrow v. St. Louis, the U.S. Supreme Court held that an employee challenging a job transfer must show only some harm, not significant harm, not material disadvantage, and not any other adjective beyond some harm. The ruling is likely to result in increased Title VII cases for job transfers where the employee believes the new position is disadvantageous. 

Background

We previously blogged about this case as it was teed up before the Supreme Court. To refresh your memories, Jatonya Muldrow was a police officer for the St. Louis Police Department who was transferred to a new position. The transfer did not significantly change her pay or benefits.  Muldrow’s “rank and pay remained the same in the new position, her responsibilities, perks, and schedule did not” as she “no longer worked with high-ranking officials,” and she also did not have a vehicle and had a less-than-regular schedule on weekends. 

The district court granted the city’s motion for summary judgment and the Eighth Circuit affirmed, holding that Muldrow could not show a “materially significant disadvantage” with her transfer, a standard that other circuit courts had relied on as well. 

Supreme Court Findings

Title VII prohibits “discriminat[ing] against” an individual “with respect to” the “terms [or] conditions” of employment because of that individual’s sex. The opinion established the following standard:

“To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment. What the transferee does not have to show … is that the harm incurred was ‘significant’ or serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.” 

In the Court’s view the plain language of “discriminate against” means treat worse based on sex, and the phrase does not require an elevated threshold of harm:

“‘Discriminate against’ means treat worse, here based on sex. But neither that phrase nor any other says anything about how much worse. There is nothing in the provision to distinguish, as the courts below did, between transfers causing significant disadvantages and transfers causing not-so-significant ones. And there is nothing to otherwise establish an elevated threshold of harm. To demand ‘significance’ is to add words—and significant words, as it were—to the statute Congress enacted.”

The Court chronicled specific job transfer cases that were previously dismissed by federal circuit courts “solely because courts rewrote Title VII, compelling workers to make a showing that the statutory text does not require.” 

The city argued that there was an implicit threshold of “significance” to any harm, but the Court rejected all of the city’s contentions. One of the city’s main arguments was that without some threshold of a significant-injury requirement transferred employees would swamp courts and employers with lawsuits. The Court rejected that point and said that “courts retain multiple ways to dispose of meritless Title VII claims” and even if the courts were to be flooded it was a result of the statute that Congress drafted. 

Muldrow alleged that the city transferred her to a lesser position because she was a woman. If there was some harm, even if not “significant,” the lower court’s dismissal of the claim was improper. The Court remanded the case back to the district court.   

Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh each authored separate concurring opinions, taking issue with the majority’s conclusion. Justice Thomas described there needing to be “more than a trifling harm.” Justice Alito said he could not join “the Court’s unhelpful opinion” and that Title VII cases for decades have held that “not every unwanted employment experience affects an employee’s ‘terms’ or ‘conditions’ of employment.” He went on to say that “I have no idea what [the majority’s opinion] means, and I can just imagine how this guidance will be greeted by lower court judges.” And according to Justice Kavanaugh, “the issue here is not complicated” and that he “disagree[d] with the Court’s new some-harm requirement … as the text of Title VII does not require a separate showing of some harm. The discrimination is the harm.” But he concluded that the new some-harm requirement “appears to be a relatively low bar” and anyone who has been transferred based on a protected category “should easily be able to show some additional harm—whether in money, time, satisfaction, schedule, convenience, commuting costs or time, prestige, status, career prospects, interest level, perks, professional relationships, networking opportunities, effects on family obligations, or the like.”   

Big Takeaway

This is certainly a significant decision that changes the risks associated with transfer decisions that do not affect pay. Employers should take note of the low standard in making transfer decisions. It will not take much for job transfer discrimination claimants to have a viable case, so make sure you are evaluating those decisions like you would termination or promotion decisions.

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We promised to keep you updated with the EEOC’s proposed regulations for the Pregnant Workers Fairness Act (PFWA). Per its website, the EEOC is publishing the proposed regulation on August 11, 2023, and you have until October 10 to provide input. 

A Note Regarding Public Comment  

Earlier this week, the EEOC posted a Notice of Proposed Rule Making for the PWFA to its website. The notice indicates the EEOC will publish the proposed regulations on August 11. Once published, the public has 60 days (until October 10) to provide input. If you do not want to wait to read the published version, you may find the unpublished version of the regulations here. (The same link will provide you with the published version as soon as it is available).  

There are four ways to submit your comments:

  1. via Federal eRulemaking Portal at https://www.regulations.gov;
  2. via Fax to 202-663-4114 (restrictions apply);
  3. via Mail to Raymond Windmiller, Executive Officer, Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street, NE, Washington, DC 20507;
  4. via Hand Delivery/Courier sent to Raymond Windmiller, Executive Officer, Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street, NE, Washington, DC 20507

Now to the Regulations

The 275-page pdf containing the regulations has a lot to unpack, but the EEOC also published a Summary of Key Provisions for the PWFA, which highlights coverage, remedies, definitions, accommodation requests, prohibited acts, and the PWFA’s relationship to other laws.

Here are a few key takeaways:

  • Application. The PWFA applies to public or private employers with 15 or more employees and to certain federal government employees.
  • Enforcement. The PWFA enforcement procedures are similar to the those for Title VII (i.e. employees, applicants, or former employees may file a charge with the EEOC).
  • Qualified Employee. Unlike the ADA, the PWFA allows an employee or applicant to be “qualified” even if they cannot perform one or more essential functions of the job so long as:
    • The inability to perform the essential function is temporary
    • The employee could perform the essential function in the near future (generally, 40 weeks but it could be longer and it could restart upon the employee’s return from leave if another accommodation is needed); and
    • The employer is able to reasonably accommodate the employee’s inability to perform the essential function without undue hardship.   
  • Pregnancy, Childbirth, and other Related Medical Conditions. There is no level of severity required for the condition the employee is experiencing. Outside of obvious pregnancy conditions, “related medical conditions” also include, but are not limited to:
    • termination of pregnancy (including miscarriage, stillbirth, or abortion);
    • infertility;
    • fertility treatment;
    • pelvic prolapse;
    • nerve injuries;
    • nausea or vomiting;
    • endometriosis;
    • changes in hormone levels;
    • menstrual cycles; and
    • use of birth control.
  • Requesting an Accommodation. The employee must (1) identify the limitation, (2) the limitation it must relate to, affect, or arise out of pregnancy, childbirth, or a related medical condition, and (3) the employee must indicate that they need an adjustment or change at work. An employee does not have to put the request in writing and may simply come up in a conversation with the employer.
  • Medical Certification. It is best to avoid requiring documentation for PWFA requests as it is only permitted if you have reasonable concerns about whether the condition or limitation is related to, affected by, or arising out of pregnancy, childbirth, or related medications. In fact, the EEOC’s summary notes that the Commission expects most determinations to “be a straightforward determination that can be accomplished through a conversation between the employer and the employee” and without the need for additional documentation.

While the regulations are not yet final and the public comments may or may not change the final regulations, it would not hurt to start preparing and avoid potential traps until official guidance is published.  Here are a few ways to do that:  

  • Once an employee brings up the need for accommodation, do not delay in responding. Make sure your front-line supervisors (who might be the ones who get requests) know that they need to get HR involved sooner rather than later.
  • Do not request documentation relating to the condition unless you have reasonable concerns about the employee’s condition.  
  • Implement policies and train your supervisors and managers on the PWFA.
  • Call your employment lawyers with questions.

If you need additional ideas on how to navigate the PWFA, check out our other blog posts here and here.

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.