The EEOC Rings Out 2016 with End of the Year Stats

2016 review

We all love factoids-right? So if you are heading out to a New Year’s Eve Party this weekend and need a few icebreakers to get the conversation going, the U.S. Equal Employment Opportunity Commission (“EEOC”) has come to the rescue.

The EEOC recently provided a brief review of its fiscal year which ended September 30. Feel free to use any of the highlighted stats below:

  • 91,503 charges were received by the EEOC this fiscal year and 97, 443 were resolved;
  • pending EEOC charges were reduced by 3.8 percent to 73,508, which is the lowest pending charge workload in the last three years;
  • 15,800 charges were settled by the EEOC pre-litigation;
  • The EEOC filed 86 lawsuits alleging discrimination (58 involved individual suits and 29 involved multiple victims or discriminatory policies)––the number of suits filed is lower than in prior years;
  • The EEOC ended the year with 165 cases that it was still actively prosecuting (of which 47 (28.5 percent) involve challenges to systemic discrimination and an additional 32 (19.4 percent) are multiple-victim cases)––the number of suits pending is also lower than in prior years;
  • The EEOC secured more than $482 million for victims of discrimination in private, state and local government, and federal workplaces (It took the EEOC’s annual budget of over $364 million to do this.);
  • $82 million dollars that was secured went to federal employees and applicants who claimed discrimination by the U.S. Government; and
  • The EEOC launched four digital services, including the EEOC’s Respondent Portal, which allows employers to receive digital notices of charges and to submit online responses. Additionally, members of the public can now make online requests for information under the Freedom of Information Act (“FOIA”).

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Employment Law Changes Likely Ahead

change aheadWith a new administration, folks in the employment world are anticipating change.  Here are some key issues to keep your eyes on:

  • Salary Test for Certain Overtime Exempt Employees– Expect the DOL to pull back or not enforce new regulations nearly doubling the salary threshold for the “white collar” exemptions to the overtime provisions of the FLSA (assuming they survive the current pending court challenges).
  • Right-to-Work– More states may pass legislation prohibiting requirements that unionized private-sector employees pay union dues. In fact, there may be enough support for national right-to-work legislation. Also expect the Supreme Court to revisit its recent decision in Friedrichs v. California, achieving the same result in the public sector.
  • Joint Employment– Expect the new Board to revisit its recent expansion of the definition of “joint employer.” The Board recently expanded the definition of “joint employer” to include temporary workers. This not only increases the risk that companies that use temporary employees may be deemed “joint employers” with temp agencies, but it also aids union organizing by allowing temporary workers to be included within the same bargaining unit as full-time employees.   It is also likely that the new Board will clarify that franchisors are not ordinarily “joint employers” with the employees of their franchisees.
  • Expedited Elections– It is likely that the new Board will address the issue of “quickie elections.” The current Board significantly reduced the time from union petition to election. This allows employers less time with which to inform their employees that the only guarantee that unionization currently provides is union dues.
  • Micro Units– The current Board has supported the notion that very small groups of employees may unionize. This helps carefully engineered proposed units to gain majority support for unionization, while increasing the likelihood that one company is forced to deal with several competing labor unions. This is yet another area where change is expected to be on the way.

New Law Widens Insurance Options for Eligible Small Employers

news update-01

A new law passed by Congress reinstates the ability of eligible small employers to reimburse employee paid premiums to purchase individual health insurance policies. The law reverses the application of huge penalties that would have applied to such reimbursement actions under the IRS’ interpretation of the Affordable Care Act.

The new law (the 21st Century Cures Act) takes effect January 1, 2017 and includes a retroactive exemption eliminating application of huge IRS fines on eligible small employers who made premium reimbursements before 2017.  Eligible small employers who want to use the new option for 2017 can do so, but must act fast.

Under the new law, eligible small employers can establish special health reimbursement accounts (called QSEHRAs) that provide funds to employees to pay for eligible medical expenses (as defined by the IRS). The expenses covered can be those of the employee and/or his or her dependents such as premiums to purchase individual health insurance policies and out of pocket medical expenses. Premiums to purchase other group health coverage, such as through the spouse’s employer, are not reimbursable. Continue Reading

Bob Turk Inducted As Fellow of The College of Labor & Employment Lawyers

Turk_Robert_HeadshotLast month, our Labor & Employment Department Chair Bob Turk was inducted as a fellow of The College of Labor & Employment Lawyers, one of the highest honors that can be bestowed on an attorney practicing in the field of labor and employment.  The College of Labor & Employment Lawyers is a non-profit professional association honoring the leading lawyers in this field throughout the country.

Fellows are recognized as distinguished members of the labor and employment community who promote achievement, advancement and excellence in the practice by setting standards of professionalism and civility, by sharing their experience and knowledge and by acting as a resource for academia, the government, the judiciary and the community at large.

In addition to his successful Labor & Employment practice, Bob makes an impact in the field. He is past Chair of the Labor & Employment Law Section of The Florida Bar and past President of the Academy of Florida Management Attorneys. He is also actively involved with the South Florida Hospitality Human Resources Association.

Bob lectures regularly to various legal and business groups. He is the mastermind behind our Annual Labor & Employment Law Seminar (approaching its 27th year – stay tuned for more info) and editor of BeLabor The Point blog which was recently recognized as one of the ABA’s top 100 legal blogs!

Bob continues to impress. Please help us in congratulating our colleague and friend on this well-deserved honor.

Warnings for Your Company Holiday Party

holiday party boozeIt is that time of year again – Holiday Party Season!  What’s a party without alcohol, and what’s a law blog without a curmudgeon preaching moderation and reasonableness? (Paramount Pictures’ 2016 trailer for Office Christmas Party shows just how out of control these parties can get!)

We all know the dangers of drinking and driving. Even if an employer can escape legal liability for the drunken actions of an employee, no company wants the public relations black eye or the moral guilt that will surely follow. Employers should take steps to limit consumption of alcohol at the holiday party. Employers may wish to have a cash bar or require employees to use a limited number of tickets to “purchase” drinks. Employees should be discouraged from giving their drink tickets away to coworkers. The company should hire professional bartenders and instruct them to require identification from guests who do not look substantially over 21 and to refuse to serve and to report any guest who the bartender feels has “enjoyed one too many.” Employers should also arrange free transportation home for any employee who cannot or should not drive. Services are available that will not only drive the employee home but also his or her car. Many companies are even paying for Uber of Lyft event codes that their employees can use to get home safely. Continue Reading

New DOL Overtime Regulations On Hold – Now What????

questions mark signLate yesterday, a Texas federal Judge issued a nationwide temporary injunction halting the Department of Labor’s (“DOL”) new overtime regulations, which were set to significantly increase the minimum salary required for the executive, administrative and professional overtime exemptions (known as the white collar exemptions). This unexpected ruling prevents the DOL from implementing the new regulations, which were set to go into effect on December 1st.

The new regulations were introduced back in May and sought to increase the minimum salary threshold from $455/week to $913/week for individuals employed in exempt executive, administrative and certain professional positions. The regulations did not modify the existing duties test, which meant that in addition to satisfying the new salary threshold the worker must continue to meet the actual duties of either an executive, administrative or professional employee to avoid any entitlement to overtime compensation. This increase was expected to impact more than 4 million workers who were anticipating either hefty salary increases or eligibility for overtime as of December 1stContinue Reading

Form I-9 Alert: New Rule Will Automatically Extend Expiring EAD

calendarHow many times have you had to terminate an employee with an expired Employment Authorization Document (EAD) who had filed for a new EAD card but who was waiting for the U.S. Citizen and Immigration Services (USCIS) to issue the new EAD card? That sorry situation may be a thing of the past if a new rule survives the change in administrations.

On November 18, the Department of Homeland Security issued a final rule intending to provide greater stability and flexibility to foreign nationals and greater certainty to U.S. employers who employ or who intend to employ foreign nationals. Many of the areas addressed in the rule simply formalize policy statements and practices that the USCIS has developed over the last sixteen years relating to H-1B holders and foreign nationals pursuing employment-based permanent residence.  The new rule also amends the regulations for the Form I-9 process, 8 CFR §274a, providing an automatic 180 day extension of work authorization for certain EAD holders.

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Employees Behaving Badly III: Now What?

trump funnyThis is the second time my post discusses Donald Trump, except now he is President-elect Donald Trump.  Much has been written in the week since his election regarding how his presidency may impact employers.  Overall, the consensus seems to be that established laws such as Title VII and the Americans with Disabilities Act, for example, will not be subject to attack by the new administration, although how they are interpreted will certainly be influenced by the judges President-elect Trump nominates to the federal bench.  Of more immediate concern to Human Resources professionals may be the impact of President-elect Trump’s conduct prior to his election (and certainly after) in terms of how, if at all, it may influence workplace conduct.

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USCIS Releases New Form I-9

update stampThe U.S. Citizenship and Immigration Services (USCIS) published the latest version of Form I-9 on November 14. Employers must start using the new Form I-9 by January 22, 2017.  Until January 22, employers can continue to use the version of the Form I-9 dated 03/08/2013 N.

According to the USCIS, the new Form I-9 includes the following changes:

  • Section 1 asks for “other last names used” rather than “other names used.”
  • The addition of prompts to ensure information is entered correctly.
  • The ability to enter multiple preparers and translators.
  • A dedicated area for including additional information rather than having to add it in the margins.
  • A supplemental page for the preparer/translator.

The USCIS has also separated the instructions from the form and includes specific instructions for completing each field. The USCIS claims that the revised Form I-9 is easier to complete on a computer because it includes drop-down lists and calendars for filling in dates, on-screen instructions for each field, easy access to the full instructions, and an option to clear the form and start over. When the employer prints the completed form, a quick response (QR) code is automatically generated, which can be read by most QR readers.

You can find the fillable version of the new Form I-9 at the USCIS website.

Non-Compete Agreements Under Fire by the White House?

making sandwichNot really.

On October 25, 2016, the White House issued a call to action urging states to reform their non-compete laws.  The call to action acknowledges that non-compete agreements are appropriate in certain circumstances, (for example, to protect trade secrets), but expressed the view that employers are, in many instances, using non-compete agreements merely as a means to limit workers’ abilities to take higher-paying jobs, and to reduce workers’ bargaining power with their current employers. The call to action also expressed the view that non-compete agreements ”also serve to reduce innovation and entrepreneurship by preventing workers from starting their own businesses.”

To be sure, non-compete agreements are a means of limiting employee competition with a former employer, and Florida is certainly employer-friendly when it comes to enforcing non-compete agreements.  (Non-compete agreements are enforceable under Florida law when they are used to protect a legitimate business interest – including, but not limited to, non-public customer information, sales information and trade secrets – over a limited geographic area and for a limited period of time.)  The call to action does not appear to seek the elimination of existing laws in every state that will currently allow enforcement of non-compete agreements.  Instead, the focus seems to be on making certain non-compete agreements are not being used unfairly and in a way not supportable under existing state law. Continue Reading