As a reminder, California’s new pay data reporting for employers with 100 or more employees (and at least one employee in California) is due on or by March 31, 2021. You can read more about these new requirements here. California’s Department of Fair Employment and Housing (“DFEH”) has released helpful FAQs to walk employers through the filing requirements and required content. On February 1, 2021, the DFEH also published a 67-page California Pay Data Reporting Portal User Guide. While the portal itself will not be available until February 16, 2021, the user guide contains helpful information on pay data report content, differences and similarities between the California report and the EEO-1 report, and navigating the Pay Data Reporting Portal (once available), as well as sample reports. Please contact us with any questions.
Protection of the workforce is a major focus of the Biden Administration. Rather than attempting to pass new legislation or amend existing statutes, the path of least resistance in the short term appears to be the use of executive orders to implement or, as here, rescind Trump Administration Executive Orders and put into effect many of the same policies as the Obama Administration. The starting point for the Biden Administration is to take the steps to implement rules with respect to the federal workforce and the workforce performing federal government contracts.
One of President Biden’s first actions in office was to direct federal government agencies to start the work to permit implementation of certain changes within the first 100 days of the administration through further executive action. These initiatives most likely will include an increased federal contractor minimum wage, requirements to offer employment to employees of an incumbent contractor, perhaps requiring contractors to disclose labor violations when seeking federal contracts, and increased Service Contract Act (“SCA”) enforcement.
- President Biden’s Executive Order 14003 on Protecting the Federal Workforce issued on January 22, among other requirements, directed the Office of Management and Budget to make recommendations regarding establishing a $15 minimum wage for federal employees and federal contractors and subcontractors (the current federal contractor minimum wage is $10.95) and to provide employees with emergency paid leave.
- President Biden’s Executive Order 13985 on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government issued on January 20 revoked President Trump’s controversial Executive Order prohibiting certain types of workplace diversity trainings for federal government contractors.
The U.S. Equal Employment Opportunity Commission (“EEOC”) released updated guidance on December 16, 2020, to address the impact of COVID-19 vaccinations in the workplace. The guidance indicates that employers may require COVID-19 vaccinations for workers to be able to return to the workplace as long as employers comply with Title VII of the Civil Rights Act (“Title VII”), the Americans with Disabilities Act (“ADA”), and Title II of the Genetic Information Nondiscrimination Act (“GINA”).
Here are a few highlights:
- Administration of the vaccine by the employer (or a contractor on the employer’s behalf) is not a medical examination and does not implicate the ADA, GINA, or Title VII. Employers must ensure, however, that all vaccine pre-screening questions are “job-related and consistent with business necessity” and do not request genetic information.
- Asking or requiring employees to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry under the ADA because it is not likely to reveal information about any disability, nor does it impact GINA. Subsequent questions, such as “why did an employee not receive the vaccine,” would implicate concerns under the ADA and GINA, however. Employers must therefore also ensure that follow-up questions are “job-related and consistent with business necessity” and avoid asking questions about genetic information or family medical history.
- Employers must provide reasonable accommodations, subject to “undue hardship” analysis, to workers who are unable to get the vaccine because of a disability (under the ADA) or sincerely held religious beliefs (under Title VII).
- An employer may physically preclude an employee who cannot be vaccinated from entering the workplace when that employee poses a “direct threat to the health or safety of individuals in the workplace,” which threat cannot be eliminated by a reasonable accommodation. However, an employer may not automatically terminate the employment of that worker. Employers must consider what protections the employee may have under relevant EEO laws or other federal, state, and local authorities.
We encourage employers working on their return-to-work strategies to review the EEOC guidance as they consider how and whether to implement COVID-19 vaccination requirements. If you have any questions or need guidance specific to your workplace, please do not hesitate to contact Blank Rome for more information.
On or by March 31, 2021, (and each March 31 thereafter), private employers in California with more than 100 full-time and part-time employees that are required to file employer information reports with the federal government (“EEO-1” reports) will be required to submit detailed data to California’s Department of Fair Employment and Housing (“DFEH”) regarding the race, ethnicity, and gender of employees in the 10 job categories used in the federal EEO-1 form. Specifically, SB 973 requires employers to report: (1) the number of employees by race, ethnicity, and gender in each of these job categories (looking at any single pay period between October 1 and December 31 of the preceding year); (2) the number of employees by race, ethnicity, and gender whose annual earnings fall within each of the pay bands used by the Bureau of Labor Statistics; (3) the total number of hours worked by each employee counted in each pay band (despite the fact that this information is not commonly kept for exempt workers); and (4) the employer’s North American Industry Classification System (“NAICS”) code. If an employer has more than one establishment in California, it is required to submit a report for each establishment, as well as a consolidated report that includes all employees.
And, what will the government do with this data? The stated intent of the law is to identify and remedy pay inequities and strengthen current equal pay laws. The new legislation permits the DFEH to use the data collected to prosecute complaints alleging discriminatory wage practices under the Equal Pay Act (California Labor Code § 1197.5). Moreover, the DFEH is authorized to share the reports with the Division of Labor Standards Enforcement (“DLSE”), so the DLSE can identify wage patterns and institute litigation to challenge suspected discriminatory practices. In other words, rather than the government responding to complaints from employees, or investigating targeted industries, it will now evaluate all data submitted by large employers and decide whether enforcement action is warranted.
The legislation provides that reported data will be kept confidential and not subject to disclosure under the Public Records Act. The DFEH, however, may compile, publish, and publicize aggregate reports based on the data it receives, so long as the aggregate reports are reasonably calculated to prevent the association of any data with any individual business or person. The data may be used for investigation and enforcement proceedings by the DFEH and the DLSE under the Fair Employment and Housing Act and Labor Code, respectively. Of course, parties to private litigation will likely seek discovery of reported data as well.
SB 973 essentially mirrors an Obama-era pay data collection rule issued by the Equal Employment Opportunity Commission, which was later stayed by the Trump administration. Of course, it remains to be seen whether our new administration will revive these collection efforts at the federal level, but for now, California remains willing to carry the torch.
If you have any questions about your pay practices or these new California reporting requirements under SB 973, please contact a member of our Labor & Employment team.
Finally, the Pennsylvania Department of Labor and Industry (“Department”) formalized its leap to modernize and streamline its regulation governing the executive, administrative, and professional (“EAP”) exemptions (and the outside sales exemption) from the minimum wage and overtime requirements of the Pennsylvania Minimum Wage Act. To confirm, yes, the Commonwealth is leaving the U.S. Department of Labor’s recent rule in the dust! See our last blog post on this from February here, as well as the ones from July 2018 and January 2018.
Although the Department took great pains to better—but not fully—align its requirements with those under the Fair Labor Standards Act (“FLSA”), the hallmarks of this new regulation are the new salary threshold increases:
- $35,568 ($684 per week) effective 10/3/2020 (which matches the FLSA threshold that was effective 1/1/2020—see our prior post here);
- $40,560 ($780 per week) effective 10/3/2021;
- $45,500 ($875 per week) effective 10/3/2022; and
- On 10/3/2023, and every third year thereafter, the minimum salary will change to match the 10th percentile of wages for Pennsylvania workers who work in exempt EAP positions.
New York City recently amended its Earned Safe and Sick Time Act (the “Act”) to match New York State’s recent changes to the Labor Law requiring all employers to provide sick leave to employees as discussed in our prior posts (Empire State Requires All Employers to Provide Sick Leave; Act Now! Changes to New York Sick Leave Are Here). New York City’s Act now matches the New York State requirements that employers must allow employees to accrue safe/sick time of between 40 to 56 hours per year (depending on employer size and net income). Although effective September 30, employees may be restricted from using any additional accrued paid time under the new legislation until January 1, 2021. New York City employers are also required to provide notice of the changes to their employees by October 30, 2020.
Mirroring the new Labor Law requirements, the New York City Act provides that:
- Employers with 100 or more employees must allow employees to accrue at least 56 hours of paid safe/sick time each calendar year;
- Employers with between five and 99 employees must allow employees to accrue at least 40 hours of paid safe/sick time each calendar year;
- Employers with fewer than five employees but having a net income greater than one million dollars in the previous tax year must allow employees to accrue at least 40 hours of paid safe/sick time each calendar year; and
- Employers with fewer than five employees and having a net income less than one million dollars in the previous tax year must allow employees to accrue at least 40 hours of unpaid safe/sick time each calendar year.
New York State’s amendments to its Labor Law requiring all employers to provide sick leave to employees are effective on Wednesday, September 30, 2020. Signed into law by Governor Cuomo in April as part of the State Budget (Senate Bill S7506B), our prior post detailed that the new amendments require employers to provide between 40 and 56 hours of guaranteed sick leave depending on employer size and net income. Starting Wednesday, covered employees will be entitled to accrue sick leave although the employees may be restricted from using that accrued leave until January 1, 2021.
Under New York’s Labor Law’s new requirements:
- Employers with 100 or more employees must allow employees to accrue at least 56 hours of paid sick leave each calendar year;
- Employers with between five and 99 employees must allow employees to accrue at least 40 hours of paid sick leave each calendar year;
- Employers with fewer than five employees but having a net income greater than one million dollars in the previous tax year must allow employees to accrue at least 40 hours of paid sick leave each calendar year; and
- Employers with fewer than five employees but having a net income less than one million dollars in the previous tax year must allow employees to accrue at least 40 hours of unpaid sick leave each calendar year.
On Tuesday evening, the Trump administration surprised the federal contracting community by issuing an Executive Order (“EO”) titled “Combating Race and Sex Stereotyping” that will ban federal contractors from conducting certain types of anti-discrimination training. In particular, the EO prohibits workplace racial sensitivity and diversity and inclusion (“D&I”) training programs that contain so-called “divisive content,” defined in the EO as instilling a belief in the existence of systemic racism and inherent bias. The EO expands an earlier ban issued in a September 4, 2020, memorandum that prohibits certain anti-discrimination training from being conducted within federal agencies.
The EO comes on the heels of a widespread social and racial justice movement that dominated much of the summer of 2020, in response to which corporate America has taken a stand, with companies pledging millions to social justice reform movements. An overwhelming number of employers either have offered or plan to offer some form of diversity training to their employees. This latest EO leaves many federal contractors and subcontractors wondering whether and how to proceed, and what penalties they may face if they offer such training. Continue reading “Trump Administration Bans Contractors from Providing Certain Types of Diversity Training”
On August 3, 2020, at the urging of the State of New York, U.S. District Judge Paul Oetken of the Southern District of New York struck down four different provisions of the U.S. Department of Labor’s (“DOL”) implementing regulation for the Families First Coronavirus Response Act (“FFCRA”): (1) the “work availability” requirement, under which paid leave is only available if an employee has work from which to take leave; (2) the requirement of employer permission to take leave intermittently; (3) the definition of “health care provider” for purposes of exclusion from paid leave benefits; and (4) the requirement for an employee to provide certain documentation before taking leave. New York v. U.S. Dep’t of Labor, 2020 WL 4462260 (S.D.N.Y. Aug. 3, 2020).
Although the judge did not issue a “nationwide” injunction, the mere fact that there was a decision by a federal judge striking certain important provisions of the FFCRA regulation left employers (or maybe just their counsel) in a panic about the implications outside of New York. Would this decision impact eligible employees in California? Would the decision be retroactive? Would the DOL appeal? Would it seek a stay of the decision while the appeal was pending? Continue reading “Strident DOL Revises FFCRA Reg, Thumbs Its Nose at NY Federal Court Decision”
As outlined in a previous post, the Philadelphia Wage Equity Ordinance is back in play. And now that the litigation dust has settled, the city announced that the Philadelphia Commission on Human Relations (“PCHR”) will begin enforcing the ordinance on September 1, 2020.
As a reminder, the Ordinance prohibits all employers, employment agencies, or their agents from asking about a job applicant’s current or prior salary history during the application or hiring process if the position is located in Philadelphia. Shortly after the salary history ban was announced, the Chamber of Commerce for Greater Philadelphia sued to block it from going into effect on free speech grounds. The case proceeded to the Third Circuit, which ultimately held that the ordinance was constitutional in a unanimous decision issued this February.
The PCHR recently issued a set of FAQs which provide some useful information for employers, including whether the ordinance applies to internal candidates (no), whether an employer can rely on market data for salaries (yes), and whether an employer can ask a job applicant about their salary expectations (yes, but employers should not ask candidates if their salary “expectation” is tied to their current or prior salary history). The FAQs also outline suggested best practices for compliance, including:
- Focusing questions on the applicant’s salary demands, experience, skills, and qualifications during the interview process;
- Establishing salary ranges or pay scales for open positions;
- Creating or modifying written policies to reflect compliance with the ordinance;
- Training interviewers, hiring staff, and other applicable staff regarding compliance;
- Refraining from seeking prior salary history from other sources, including a former employer or public records;
- Instructing background reporting agencies to exclude information found regarding an applicant’s salary history; and
- Developing protocols for discarding or isolating salary information that employers inadvertently receive but are prohibited from considering.
Job applicants who are asked about their salary history in violation of the ordinance can file a complaint with the PCHR and may be awarded compensatory damages, punitive damages, reasonable attorneys’ fees, costs, injunctive relief, or other relief. Employers are prohibited from retaliating against applicants who refuse to provide their salary history.
We recommend contacting a member of Blank Rome’s Labor & Employment team as soon as possible to ensure that your hiring process and practices follow the ordinance’s requirements, and that your staff understands the do’s and don’ts of the new law. We are happy to answer any questions about compliance or updating your policies and procedures, or to schedule a training.