Federal Employment Law Update — April 2019

EEOC Proposes September 2019 for Submission of EEO-1 Component Two data

On March 3, 2019, the federal Equal Employment Opportunity Commission (EEOC) filed a submission (in response to the court’s questions raised during the March 19, 2019 status conference) and declaration (from its Chief Data Officer and Director of the Office of Enterprise Data) proposing that employers be required to submit their EEO-1 Component 2 pay data for 2018 by September 30, 2019. The EEOC also proposed that employers not be required to submit 2017 data.

Therefore, the following are the deadlines for covered employers:

• Set deadline: Submit Category 1 EEO-1 data for year 2018 by May 31, 2019.
• Proposed deadline: Submit Category 2 EEO-1 data for year 2018 by September 30, 2019. Category 2 information consists of 12 pay bands for each of the 10 EEO-1 categories (race, ethnicity, and sex).

The September date is unconfirmed and, at this time, is only a proposal.

Read the submission and declaration

DOL Issues Three New FLSA Opinion Letters

On April 2, 2019, the U.S. Department of Labor’s Wage and Hour Division (WHD) announced that it issued three new opinion letters addressing the following compliance issues under the Fair Labor Standards Act (FLSA):

• FLSA2019-3, addresses whether a youth residential care facility may implement an “8 and 80” overtime pay system;
• FLSA2019-4, addresses the application of the teacher exemption to Nutritional Outreach Instructors employed by a public university; and
• FLSA2019-5, addresses the application of the agricultural exemption to the freezing, cutting, packing, storing, and/or transportation of a farm’s own fruit, vegetable, or meat products.

An opinion letter is an official, written opinion by WHD on how a particular law applies in specific circumstances presented by the person or entity requesting the letter.

See the general FLSA opinion letter index page

Joint Employer Status Under the FLSA

On April 1, 2019, the U.S. Department of Labor (DOL) announced a proposed rule to revise and clarify the responsibilities of employers and joint employers to employees in joint employer arrangements. The Fair Labor Standards Act allows joint employer situations where an employer and a joint employer are jointly responsible for the employee’s wages. This proposal would ensure that employers and joint employers clearly understand their responsibilities to pay at least the federal minimum wage for all hours worked and overtime for all hours worked over 40 in a workweek.

The DOL proposes a four-factor test that would consider whether the potential joint employer actually exercises the power to:

• Hire or fire the employee;
• Supervise and control the employee’s work schedules or conditions of employment;
• Determine the employee’s rate and method of payment; and
• Maintain the employee’s employment records.

The proposal also includes a set of examples for comment that further clarify joint employer status.

The proposed rule was submitted to the Office of the Federal Register (OFR) for publication, and is currently pending placement on public inspection at the OFR and publication in the Federal Register. The proposed regulations may vary slightly from the published document if minor technical or formatting changes are made during the OFR review process. Only the version published in the Federal Register is the official proposed regulation. The DOL encourages any interested members of the public to submit comments about the proposed rule electronically at www.regulations.gov, in the rulemaking docket RIN 1235-AA26. The public will have 60 days to comment on the proposed regulation; the comment period will begin on the date of publication in the Federal Register.

Read the proposed rule and more

Notice of Proposed Rule Regarding Employee’s Regular Rate

On March 28, 2019, the U.S. Department of Labor (DOL) announced a proposed rule to amend 29 C.F.R § 778 to clarify and update regular rate requirements under § 7(e) of the Fair Labor Standards Act (FLSA). The FLSA generally requires overtime pay of at least one and one-half times the regular rate of pay for hours worked in excess of 40 hours per workweek. Regular rate requirements are the forms of payment employers include and exclude in the “time and one-half” calculation when determining workers’ overtime rates.

Under current rules, employers are discouraged from offering more perks to their employees as it may be unclear whether those perks must be included in the calculation of an employees’ regular rate of pay. The proposed rule focuses primarily on clarifying whether certain kinds of perks, benefits, or other miscellaneous items must be included in the regular rate. Because these regulations have not been updated in decades, the proposal would better define the regular rate for today’s workplace practices.

The DOL proposes clarifications to the regulations to confirm that employers may exclude the following from an employee’s regular rate of pay:

• The cost of providing wellness programs, onsite specialist treatment, gym access and fitness classes, and employee discounts on retail goods and services;
• Payments for unused paid leave, including paid sick leave;
• Reimbursed expenses, even if not incurred “solely” for the employer’s benefit;
• Reimbursed travel expenses that do not exceed the maximum travel reimbursement under the Federal Travel Regulation System and that satisfy other regulatory requirements;
• Discretionary bonuses, by providing additional examples and clarifying that the label given a bonus does not determine whether it is discretionary;
• Benefit plans, including accident, unemployment, and legal services; and
• Tuition programs, such as reimbursement programs or repayment of educational debt.

The proposed rule also includes additional clarification about other forms of compensation, including payment for meal periods, “call back” pay, and others.

The DOL encourages the public to submit comments about the proposed rule electronically at www.regulations.gov, in the rulemaking docket RIN 1235-AA24. Comments must be submitted by 11:59 p.m. on May 28, 2019 to be considered.

Read the announcement and proposed rule

Penalty Increase for Posting Violations

On March 21, 2019, the federal Equal Employment Opportunity Commission (EEOC) published a final rule in the Federal Register increasing the civil monetary penalty from $545 to $559 for violations of the notice-posting requirements in all of the following federal laws:

• Title VII of the Civil Rights Act of 1964.
• The Americans with Disabilities Act.
• The Genetic Information Non-Discrimination Act.

The final rule is effective April 22, 2019.

Read the final rule