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.

New Waive? NLRB Allows Revised Arbitration Agreements After Collective ActionLast week, the National Labor Relations Board (NLRB) issued a decision in Cordúa Restaurants, Inc., that permits employers to create and enforce arbitration agreements with collective waivers in direct response to Fair Labor Standards Act (FLSA) collective actions filed by employees. The NLRB also found that warning employees of discharge for failure to agree to an arbitration agreement is not a violation of the National Labor Relations Act (NLRA). This decision follows the Supreme Court’s May 2018 ruling in Epic Systems Corp. v. Lewis, that approved the employer’s use of mandatory arbitration agreements with class action waivers. Check out our prior blog posts on Epic and arbitration clauses.

What happened in Cordúa?

A group of employees filed a collective action alleging violations of federal and state wage laws.  After the lawsuit was filed, the employer required its employees to sign a revised arbitration agreement that prohibited employees from filing collective actions and opting in to collective action suits. The NLRB found that the employer had lawfully implemented the arbitration agreement under Epic Systems. The NLRB also found that requiring employees to agree to arbitrate rather than pursuing collective action (and face potential termination if they don’t agree) is lawful.

What does this mean for employers?

The NLRB has said that employers can mandate that employees sign arbitration agreements even after litigation has begun and can lawfully terminate employees if they refuse to sign such an agreement. While last week’s NLRB decision signals a positive shift in favor of employers, courts may still scrutinize arbitration agreements enforced in response to collective action lawsuits and any disciplinary actions taken by employers against employees who refuse to sign an arbitration agreement.

Teach Your Children Well: DOL Issues Opinion Letter that Attending Child’s IEP School Meeting Is Covered by FMLAIf an employee asks for time off to attend a meeting at his or her child’s school, is that covered by FMLA? Maybe not but it depends on the nature of the meeting. If the child is disabled and the school meeting is for the child’s IEP, according to a recent opinion letter from the Department of Labor (DOL), it may be covered FMLA leave.

What is an IEP?

An IEP is an Individualized Education Program for a child in school who may need assistance because of a disability that affects his or her education. Federal law requires schools to develop an IEP for every student that meets the federal and state requirements for special education. As part of the process of establishing an IEP, school personnel meet with the parents (and sometimes the student, depending on age) to design the plan and talk about how it will work.

Why Should a Parent/Teacher Meeting Be Covered by the FMLA?

The DOL was approached by a parent who had two children with qualifying serious health conditions under the FMLA. The mother applied, and her employer approved intermittent FMLA leave for her to care for her children and take them to medical appointments. However, the employer had denied leave for the IEP meetings at the school that occurred four times a year. The mother argued that the children received pediatrician-prescribed occupational, speech, and physical therapy provided by the school district, and the IEP meetings involved speech pathologists, psychologists and therapists, as well as teachers and school administrators, to talk about these services and the children’s progress and areas of concern. The mother wanted to know if intermittent FMLA leave could cover the meetings.

The DOL opinion letter discussed the right of a parent to take intermittent or reduced FMLA leave when it was medically necessary because of a family member’s serious health condition. The DOL flatly said that the mother’s need to attend the IEP meetings addressing the educational and special medical needs of her children, who have serious health conditions as certified by a healthcare provider, is a qualifying condition for taking the FMLA leave. The opinion notes that the FMLA covers taking leave for making medical decisions on behalf of a hospitalized parent or to make arrangements for finding suitable childcare for a child with a disability. The DOL also cited Wage and Hour Division policy providing that FMLA covers care conferences where the employee’s attendance at the conference is “clearly essential to the employee’s ability to provide appropriate physical or psychological care to a qualifying family member.”

How Does This Affect Us?

This decision shows that situations may arise around the edges of what we consider “typical” FMLA leave—especially when it deals with leave taken to care for another individual. The important facts in this scenario appear to be:

  • The children had a qualifying serious health condition that was documented by a healthcare provider. The mother was already taking intermittent leave related to these children.
  • The IEP meetings were directly related to that medical condition. According to the opinion letter, the occupational, speech, and physical therapy were prescribed by a doctor, provided by the school, and discussed at the IEP meeting.

While it is wise to be ever-vigilant when monitoring possible abuses of FMLA, if the request relates to the care of someone with a previously documented serious health condition, it may be best to err on the side of granting the leave.