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EEOC Archives

EEOC Collection Of Employer Pay Data On Target For September

In 2016, under the Obama administration, the EEOC significantly revised its EEO-1 report to require that covered entities - private employers with 100 or more employees, or federal contractors with at least 50 employees - begin to report how much they pay workers, broken down between sex, race and ethnicity. The stated rationale for this change was to enable the EEOC to root out pay gaps presumed to exist between genders, races, and ethnic groups. Employers and eventually, the Trump administration, opposed the measure as being overly burdensome; however, those efforts were eventually unsuccessful in court. Therefore, barring further intervention from the courts it is no longer a question of whether employers must begin to provide payroll data to the federal government's EEOC, but when and how. These questions have now been answered, at least for now. On April 25th, a federal judge in Washington, D.C. ordered that covered employers have until September 30, 2019 to comply with the Equal Employment Opportunity Commission's (EEOC) revised EEO-1 reporting requirements.

EEOC Charges At 12-Year Low

Workers filed 8,000 fewer charges in Fiscal Year 2018 (October 1, 2017 through September 30, 2018) when the EEOC took in 76,418 charges. This total is the lowest since Fiscal 2006 when the agency took in a little under 76,000 charges.

EEOC Lawsuits Demonstrate An Aggressive Position On Employer Obligations To Reasonably Accommodate

Employers have a legal obligation to accommodate work-related conflicts posed by an employee's or applicant's disability or religious beliefs. This seems simple enough - be "reasonable." Yet as many business professionals and lawyers know all too well, there is a great deal of room for differences of opinion as to what constitutes a "reasonable accommodation." Considerable effort (and litigation) has gone into defining what is required under the Americans with Disabilities Act, as well as Title VII of the Civil Rights Act (for religion). For its part the EEOC has routinely pushed the envelope; it expects employers to go to great lengths to satisfy their obligation to reasonably accommodate workers. Recent cases dealing with accommodations in the form of service dogs, sign-language interpreters, extended leaves of absence and adjusted work schedules, are just some of the positions taken by the EEOC in litigation (with varying degrees of success). Here are some examples:

Outsourcing Administration of Employee Leaves of Absence to a Third-Party Vendor Did Not Insulate Dollar General Store from Responsibility to Rehire Returning Service Member under USERRA

Administering employee leaves of absence is complicated. For employers of 50 or more employees there obviously are the Family and Medical Leave Act (FMLA) and D.O.L. regulations to deal with. Then there is the EEOC, which has interpreted the Americans with Disabilities Act (ADA) to require leaves of absence, or extending them under certain circumstances as a reasonable accommodation of an individual's disability. Add worker compensation laws that provide for reinstatement of employees following a work-related illness or injury, as well as an ever growing list of other federal, state and, more recently, local laws governing what employers may or may not do about employee absences and even the most experienced HR professionals have their hands full. Monitoring FMLA leave (especially intermittent leave), work-related absences, military leave, leave as an accommodation and all the legalities of when and how to return workers from such leaves, can be overwhelming. Not surprisingly, many employers have turned to outsourcing these functions, ostensibly to avoid all the hassles and legal pitfalls they present. However, as a recent U.S. Court of Appeals decision demonstrates all too clearly, turning these responsibilities over to a third party does not rid an employer of responsibility, or liability, for complying with the many workplace leave laws that are at play.

No Fault Attendance Policies

It has become a "sign of the times" that many Employers, rather than attempting to negotiate the maze of potential Legal Issues with regard to Employee Absences for sickness, child care, etc., have gravitated to what has become identified as the "No Fault Attendance Policy". Under a No Fault Attendance Policy, Employees are assigned certain points for absences regardless of the reason for those absences, and are terminated after they have accumulated enough points to generate termination and, in some cases, have exceeded the maximum number of days absent in a "No Fault Absence Policy" during a calendar or running twelve (12) month period. Employers believe that this is a very efficient way to maintain neutrality and to avoid asking people the reasons for their absences. Unfortunately, it seems that the Equal Employment Opportunity Commission is taking a very staunch position of disagreement with this concept.

Employers Need to Remain Diligent Regarding Discrimination/Retaliation Investigations in 2018

On November 15, 2017, the Equal Employment Opportunity Commission ("EEOC") issued its annual performance and accountability report. In the report the EEOC states that:

EEO-1 Report Change

In a statement issued on August 29, 2017, the Acting Chair of the Equal Employment Opportunity Commission - Victoria Lipnic, announced that she had received from the Office of Management and Budget Office of Information and Regulatory Affairs (OIRA) - Neomi Rao - Administrator - informing her (Ms. Lipnic) that the OIRA was initiating a comprehensive review and issued an immediate stay of the "effectiveness of the pay data collection aspects of the EEO-1 Form".

New EEO-1 Report

While there is no requirement for Employers to file an EEO-1 Report during Calendar 2017, do not start celebrating too quickly. The "New and Improved" EEO-1 Reports are due by March 31, 2018 and require expanded/new reporting requirements. These new/expanded reporting requirements not only require reporting with regard to race, ethnicity, gender, etc., but also require reporting on the basis of total compensation and total hours worked by race, ethnicity, gender, EEO-1 category and designated salary bands.

Trump Names a New Chair to Head the EEOC

President Trump has appointed Janet Dhillon, an attorney from the mega law firm, Jones Day, to serve as Chair of the Equal Employment Opportunity Commission. Ms. Dhillon's background with a law firm that represents businesses is expected to bring a better appreciation of employers and the challenges they face in complying with a growing number of civil rights laws and regulations in the workplace.

EEOC - Fiscal Year 2016

The Equal Employment Opportunity Commission (EEOC) has recently released statistical data on its Enforcement/Litigation for Fiscal Year 2016 (October 1, 2015 - September 30, 2016). A total number of 91,503 Charges of Workplace Discrimination were filed in FY 2016, which is approximately a 3% increase in Charges from FY 2015. Furthermore, over the twelve (12) month Fiscal Year period, the EEOC resolved 97,443 Charges and secured more than $482 Million for affected Employees. The EEOC responded to well over 585,000 calls and more than 160,000 inquiries to its various Field Offices.

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