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Legal Briefs #2 2016

    April 4, 2016

    Welcome to Legal Briefs for HR, an update on employment issues sent to over 6000 individual HR professionals, in-house counsel and business owners plus HR and legal professional organizations (who have been given permission to republish content via their newsletters and websites), to help them stay in the know about employment issues.  Anyone is welcome to join the email group . . . just let me know via reply email you’d like to be added to the list and you’re in!  Back issues are posted at under Media Center/Legal Briefs and you can also join the group by clicking on “Subscribe.” 


    Here is some March Madness, employment-style:


    Eye on EEOC – The Equal Employment Opportunity Commission  is trending, with several news bits:

    Employer Information Report (aka EEO-1 Report) – See for more info on the proposed addition of employees’ pay and hours worked information to this annual data-gathering exercise, beginning with the September 2017 report.  The form is completed by employers of 100+ employees and by federal contractors with 50+ employees, with the data being shared by both EEOC and the OFCCP.  The data will be inputted to the existing ten EEO-1 job groups, with further delineation into twelve pay bands (the ones used by the U.S. Bureau of Labor Statistics in its Occupational Employment Statistics survey). This rigid format has no ability to account for legitimate distinctions underlying pay differences, such as geographic location, experience, seniority and more.  If you’d like to weigh in on this, comments are being accepted through April 1 at, via fax (6 page max) at 202.663.4114 or via snail mail. 


    Data Dump – Fiscal 2015 enforcement data is now posted on the agency website at While stats can be dry, it’s useful to see what types of claims are being filed most often and which ones result in the highest damage awards, particularly when you are negotiating for additional budget to engage in preventive measures, such as manager training.  89,385 charges were filed during fiscal 2015, with retaliation leading the pack (44.5% of all charges filed), followed by race (34.7%) and disability (30.2%).  GINA is the laggard, at .3%  Drill down through the detailed breakdowns for more info, including data sorted by geographic areas . . . like where you are doing business. 


    Sneak Peek – EEOC issued a new procedure, retroactive to January 1, 2016, allowing Charging Parties to get their mitts on a copy of the respondent’s position statement, while the agency investigation of a charge of discrimination is ongoing.  This replaces the “old way” of CP filing a request for a copy under the Freedom of Information Act and waiting, and waiting.  Charging Party must make a request to see the position statement and EEOC staff will redact info they deem to be confidential before giving CP a copy. CP has 20 days to respond, but respondent is not entitled to see CP’s response.  While it’s always been a good idea to carefully consider what facts and attachments are included in the position statement, this development is reason to carefully consider sensitive/confidential information and if you do decide to include it, clearly mark it as “confidential” and cross your fingers that EEOC respects that designation.  See for more info.


    Upping the Ante on Retaliation Claims – EEOC published new proposed guidance on retaliation claims, replacing the 1998 version and expanding its view of what constitutes actionable retaliation under the statutes it enforces.   The press release and link to the guidance is at  The comment period closed on February 24.  As noted above, retaliation leads the pack in the type of claims filed with the EEOC, but they apparently think more are needed?  Please explain.

    Eye on DOL – Not be outdone, the Department of Labor has been busy as beavers, too: 

    Joint Status – An Administrative Interpretation issued on January 20, giving the word “employ” an expansive definition under the FLSA and teeing up formerly discrete entities to be treated as joint employers.  Heads up, employers who use contractors or staffing agencies.  DOL will look at horizontal relationships, where two or more entities use the same employee and vertical relationships, where the worker is employed by a contractor/subcontractor or staffing agency and is economically dependent on another entity.  Check it out at This more encompassing definition of who is the employer has already been adopted by other federal agencies, including the NLRB and OSHA.

    Pay Up – A Notice of Proposed Rulemaking to implement mandated sick pay for employees of certain federal contractors, as required by E.O. 13706, is posted at Fair warning . . . the NPRM is 286 pages long.  Also the comment period is only 30 days long, so if you have, um, thoughts on this missive you need to speak up, soon.

    Drum Roll, Please – The DOL Solicitor, Patricia Smith, announced on Feb. 17 that the revised FLSA white collar regulations will be published in July and take effect 60 days after publication. Accepting your bets on this happening as announced, now.

    Not Persuaded – DOL claims that a revised “persuader” rule under the Labor Management Reporting and Disclosure Act (LMRDA) will be published in March, 2016.  The current rule requires detailed disclosure about the use and cost of consultants and lawyers who engage in “persuader activity” relating to labor unions but not if their efforts are limited to discourse with employer (and not directly with the employees).  The revised rule is expected to greatly limit this “advice” exemption.

    Saving Your Records? – No, no that sweet vinyl from back in the day.  I mean your employee records . . . the ones that are subject to a stack of federal and sometimes state laws governing retention of records.  The employer’s failure to keep an employment application, in a case alleging discriminatory refusal to hire, entitled the plaintiff to an adverse instruction to the jury.  What does that mean?  The jurors are entitled to infer that the employer’s destruction of the document was deliberate and designed to hide evidence that would have been useful to plaintiff. Austrum v. Federal Cleaning Contractors, Inc. (S.D. Fla. Jan. 2016).  EEOC regulations require that employment records be kept for one year from their making  or the personnel action involved, whichever occurs later.  The regs also say that records relating to an involuntary termination must be kept for one year from the date of termination.  Are you saving as you should?

    I-9 Uh Oh – The story unfolds with a hotel housekeeping supervisor becoming subject to a SSA investigation.  Must’ve been a good supervisor, because the hotel operator allowed the housekeeper to quit, assume a false identity and be re-hired as an independent contractor (read:  not subject to the Form I-9 requirement) in another of his hotels.  Both the operator and his company pled guilty to knowingly hiring or continuing the employment of an unauthorized alien.  The pain?  Operator can get up to six months in prison and a $3000 fine, while his company can face up to five years of probation and a fine of $500,000.  Think you can outsmart the feds?  Don’t bank on it.

     No Credit – If passed, the Equal Employment for All Act (H.R. 3524) will prohibit most employers from using credit reports as a tool in making employment decisions.  The bill was filed in September 2015 and has 18 co-sponsors, so not a lot of traction.  If you want to follow the bill’s progress, check it out at

     No Day at the Beach – Employee has shoulder injury and takes 12 weeks of FMLA for surgery and recuperation.  Doc says employee is still on the mend and needs an additional month.  Employer Oks the extended leave.  While still on FMLA leave and during the additional month of nonFMLA leave, employee takes fun trips to Busch Gardens in Tampa and to a Caribbean island. Employee documents his fun trips on Facebook, including images of him swimming in the ocean.  Employer catches wind of the pics, confronts employee on his first day back to work, and fires him.  Employee sues under FMLA for both interference and retaliation.  Judge chuckles (I am just guessing here) as she grants the employers motion for summary judgment.  There was no interference, since he actually took leave. There was no retaliation for “requesting and taking” leave . . . the termination had more do with his abuse of available leave, as evidenced by his own pics of swimming like a fish in the sea when his shoulder was allegedly so jacked up he could not return to work.   Jones v. Gulf Coast Health Care of Delaware, LLC (M.D. Fla. Feb. 2016) 

    No Settlement – The U.S. Supreme Court denied cert, letting stand a Second Circuit decision which requires either judicial or Department of Labor approval to dismiss with prejudice a pending FLSA lawsuit.  Cheeks v. Freeport Pancake House, Inc.  Even though both employers and employees sometimes prefer an expedient (and unpublished) settlement of their wage and hour disputes by avoiding DOL and/or court involvement, the Second Circuit cited to the FLSA’s purpose . . . “to prevent abuses by unscrupulous employers, and remedy disparate bargaining power between employers  and employees . . . .”  For now, employers in CT, NY and VT will need to submit to the “mother, may I” approach to settling these claims.

     There Is No Defense – Since 1998, when the U.S. Supreme Court laid out the affirmative defense available to employers in cases involving allegations of workplace harassment in violation of Title VII, employers have known that they need to have anti-harassment policies and procedures (including training).  These measures are designed to prevent misconduct and, if necessary, provide a defense to accusations where harassment occurred despite the employer’s efforts.  If your mindset is that you will wait until accusations are made and then launch into remedial mode, read ahead.  The NJ Supreme Court made clear that only an employer who institutes meaningful and effective measures intended to prevent discrimination BEFORE the alleged discrimination occurred may assert the affirmative defense.  Dunkley v. S. Coraluzzo Petroleum Transporters (N.J. S. Ct. Jan. 2016).

     OSHA on Workplace Violence – Employers in the health care and social service settings should check out new guidance issues by OSHA to address workplace violence.  The guidance is posted at This replaces guidance that issued in 2004.

    Labor and Employment Law Conference – If you are looking for a solid update that caters to both lawyers and to HR professionals, check out the University of Texas School of Law Labor and Employment Law Conference, to be held in Austin on May 3 and 4.  For more info and to register, go to

     Stated Differently – Here are some hot topics for you multi-state employers:

    California – Here is new guidance for employers from the CA Department of Fair Employment and Housing on transgender employees in the workplace: The info addresses pre-hire questions, dress codes and use of restroom facilities. Note that an individual need not have competed reassignment surgery or any particular step in the process prior to surgery, to be considered transgender. 

    California (Santa Monica) – Effective July 1, 2016, employers with 26 or more employees in Santa Monica must provide paid sick leave at a rate of one hour of paid leave for every 30 hours worked, with the accrual capped at 72 hours (which is higher than the state law cap of 48 hours). The cap for employers of 25 or fewer employees is 40 hours.  Unlike the state version of this law, there is no option to “frontload” paid sick leave at the start of each benefit year.  For a copy of the ordinance, go to

    New York – Medicinal marijuana is now legal: NY employers can exhale (a sigh of relief) since the law expressly recognizes employers’ rights to regulate (read: ban) drug use in the workplace and employers are not required to do anything  which would cause the employer to violate federal law . . . which still treats marijuana as an illegal drug.

    Oregon – Effective July 1, 2016,the minimum wage will be increased, with amounts varying depending upon the geographic region in which the employee works.  There are three “tiers” providing for a gradual increase over six years to $14.75/hour for the Portland Metro area, $13.50/hour in smaller cities and $12.50/hour in rural areas.  The current minimum wage is $9.25/hour statewide.  Implementing rules should address how to apply the proper geographic tier when the employee’s work site is not a fixed location and other open issues.

    Pennsylvania (Philadelphia) – Philly’s “ban the box” ordinance was amended with significant changes taking effect on March 16, 2016.  There is a mandatory poster, the ordinance covers all private employers of 1+ employees, checking a job applicant’s criminal record is now pushed back from after first interview to after condition offer is made, and more.   For more info, go to and stay tuned for updates . . . it appears the official page has not yet been updated to reflect recent amendments.

    Rhode Island – Effective June 26, 2016, RI’s ten-year old identity theft law is amended in numerous ways.  Among the changes are required notice to the state’s AG for breaches impacting 500+ RI residents, an expanded definition of “personal information” and a narrowing of the encryption exception to mandatory notice of breach to 128 bit key length or greater encryption.  Specifics are available at

    Vermont – With the stroke of the governor’s pen, which he has promised to do, VT will be the fifth state to mandate paid sick leave for employees.  The mandatory benefit will take effect January 1, 2017 and will provide 24 hours of paid sick time in a 12-month period.  The amount will increase to 40 hours in a 12-month period, beginning January 1, 2019.  The benefit will accrue at a rate of not less than one hour per every 52 hours worked for each employee who works an average of at least 18 hours/ week.

    West Virginia – Effective July 1, 2016, WV will become the 26th right to work state in the U.S.  The measure was vetoed by the Democratic governor, but the House of Delegates and Senate had sufficient votes to overturn the veto.  For more info on what this means, check out

    For the Birds – If you like being tweeted and want breaking news on employment law changes (and the occasional random cheer for K-State), follow me on Twitter.  I’m at @amross.