New Developments in EEO-1 Reporting Requirements

Many of you are familiar with the EEO-1, the annual compliance survey that seeks company employment data categorized by race/ethnicity, gender and job category.  All private employers with 100 or more employees are required to file the EEO-1 each year. 

Back in September 2016, the EEOC announced that starting in March 2018, employers would be required to report summary pay data in addition to the previously required employment data.  But on August 29, 2017, the Office of Management and Budget announced that it would stay this new rule while it reviewed whether the previously proposed changes to EEO-1 reporting were effective in reducing pay discrimination or unduly burdensome to employers.

What does this mean for employers?  Employers will still be required to file their next EEO-1 reports by March 31, 2018.  But these reports will use the existing EEO-1 form, and no collection of pay data is required.  Employers are required to report using the new workforce snapshot period for 2017 (any payroll period of the employer's choice between October 1 and December 31, 2017.) 

Follow myHRcounsel for up-to-date information on all federal rules and regulations affecting employers.


The White House has blocked an Obama-era rule

On Tuesday August 29th, the White House announced that it will block an Obama-era rule from taking effect this spring.  The rule would have required businesses to track how much money they pay workers varying on genders, races, and ethnicities.    

The Obama-era rule, which was proposed in 2016, would have required employers with 100 or more employees to submit data on wages to the Equal Employment Opportunity Commission with the goal of preventing pay discrimination.  

Continue to follow us for further updates!

Minnesota Minimum Wage to Rise

Minnesota workers will be set to receive a 15 cent higher minimum wage January 2018.  This will be the first inflation-adjusted hike in Minnesota since a 2014 rewrite of the state's base wage, which tied the minimum wage to inflation.  At the time in 2014, Minnesota was among the lowest minimum wage in the country at $6.15 per hour, and it was raised to $8 per hour.

January 2018 Minimum Wage

  • Companies with less than $500,000 in revenue must pay at least $7.87 per hour
  • All other companies must pay at least $9.65 per hour

While the state's wage is rising, the city of Minneapolis approved a municipal minimum wage ordinance in June 2017, that will require employers to pay a $15 minimum wage by 2022.  Effective January 2018, businesses with >100 workers must pay workers $10 per hour and then $11.25 in July 2018, where businesses with <100 workers will are required to pay a minimum of $10.25 per hour effective July 1, 2018. 

Payroll Cards

Many employers are choosing to use payroll cards as a convenient option to pay wages.  Federal law prohibits employers from mandating the use of payroll cards unless employees are permitted to choose between a payroll card and at least one other alternative method to receive wage payment.  At least 31 states have laws governing the use of payroll cards, including when written consent to pay wages by payroll card is required, and what disclosures must be made to employees before payroll cards may be used.  For example, Illinois requires employers to inform employees that they are entitled to make two declined transactions per month without fee, and North Dakota requires that the payroll card must be issued by a federally insured bank or credit union.  Failure to abide by state statutes regarding the proper use of payroll cards may subject an employer to wage and hour claims, as well as applicable fines and fees.  Questions on whether your business’s use of payroll cards complies with the laws of your state?  myHRcounsel can provide state-specific fact sheets and authorization forms to ensure that your payroll policies are in compliance.

Pay Withholding

As an employer, have you ever thought about withholding wages from a current or terminated employee? If you answered yes, then there may be potential legal dangers that you are unaware of.

Do I have to pay a terminated employee, and if so, when?

According to the Department of Labor, the “last paycheck” law states that employers do not have to give a former employee their check immediately whether they are terminated or voluntarily resign. Regardless, an employer should pay the former employee for the previous work period at the next regular payday. Many states have more stringent “final paycheck” laws, so it is important to review the local statutes.

Employers may also encounter instances where the terminated worker is still in possession of company property. While the employer may want to withhold a paycheck until the equipment is returned, the FLSA mandates that all wages are due at the next regular payday, regardless of whether or not the property is returned. Again, some states have different requirements, so an employer may have the chance to recoup the cost of the company property that is in the employee’s possession.    

Can I withhold pay from a current employee?

Under both federal and state law, employers are required to pay their employees, and each employee must be paid the required minimum wage. For a number of reasons, employers may consider withholding pay from a current employee. Generally speaking, an employer cannot withhold pay from an employee without his or her consent, except in the case of required withholdings, such as FICA. Moreover, withholding wages as means of punishment is against the law. An employee is owed his or her full paycheck even if the employee violates company policy. If an employee is overpaid, the employer is allowed to recoup the overpayment from the employee under the FLSA, as the Department of Labor considers overpayment a “loan or advance of wages.” Some states place restrictions on such recoupment, however, such as time limitations or the requirement for written authorization from the employee.

Withholding pay from current or former employees can create legal problems for an employer. It is always best practice for employers to review both federal and relevant state and local laws to ensure the desired withholding complies with all governing laws. If you have questions, consult an attorney.




New Form I-9 Released

On July 17, 2017 the federal government has released a new Form I-9, which is a form that is required to be completed by all new hires to prove eligibility to work in the United States.  The Form I-9 has been around since the 1980's and has been updated numerous times.  The previous I-9 was released in November, which will expire on September 17th, so employers must switch to the new form which can be found at the link below.

Only a handful of changes were made, including changes to the instructions, as well as adding consular report of birth abroad as an acceptable form of ID to show work eligibility.  The form may switch to this new form immediately, or continue to use the former version until September 17, 2017.

To access the new Form I-9, click here... 

Washington Latest to add Paid Family-Leave

Governor Jay Inslee officially signed into law a bipartisan plan that will now guarantee eligible workers 12 weeks of paid time off for the birth or adoption of a child, or for a serious medical condition of the worker or worker's family member.  This will be effective in 2020.  Washington now joins four other states who have paid family-leave programs: California, New Jersey, Rhode Island, and New York.  The District of Columbia has a paid family-leave program scheduled to take effect in July 2020.

The bill is one of the most generous in the nation, as low-wage workers may collect at least 90% of their weekly income.  Workers may have two additional two weeks for complicated pregnancies.

The law calls for both employers and the employees to pay into the system- where weekly benefits are calculated based on the percentage of the employee's wages and the state's weekly average wage($1,082).  The weekly amount paid out is capped at $1,000 per week.  To qualify, employees must work at least 820 hours. 

St. Louis, MO Minimum Wage Lowered

Missouri Governor Eric Greitens has announced that he will let a bill that repeals the St. Louis minimum wage law, which will lower the St. Louis minimum wage from $10 to the state law of $7.70 per hour.  The Missouri minimum wage is tied to the rate of inflation.  The bill will also block cities and counties from setting their own minimum wages in the future, by enforcing a Missouri state-wide standard.  Even without the Governor's signature, the law is set to take effect on August 28, 2017.

Workers in St. Louis were currently making $10 per hour as of May, plus the minimum wage was due to rise to $11 per hour in January 2018.  Governor Greitens cited the $15 minimum wage hike, which he believes(and studies have found) to cost both businesses and the worker money and jobs.  Missouri has now joined 17 other states who have preemptive laws, which prohibit local minimum wage legislation.

DOL Abandon's Obama Era Overtime Rule

In May 2016, President Obama and Labor Secretary Perez announced the final rule updating overtime regulations.  (We wrote about it in our blog last year, which can be found here).  The rule was significant for businesses because an estimated 4 million people were set to receive overtime protections within the first year of implementation.  Just a few days before the implementation date of the new rule, a Federal Judge in Texas placed an injunction on the rule, blocking it from taking effect.  Since then, the DOL has delayed the overtime rule three times, with the final delay ending June 30, 2017.

Just this week, President Trump's DOL has dropped the defense of the FLSA overtime rule.  The eligibility threshold would have been raised from $455 per week($23,660 annually) to $913 per week ($47,476 annually).  While the DOL dropped the defense of the rule, the agency requested that the 5th Circuit not address the validity of the $47,476 threshold, which the DOL intends on revisiting through new rule making.  That process began on June 27 with a public request for information.  While many feel that the original $23,660 threshold is out of date, many believed that $47,476 went too far.  Alexander Acosta has yet to publicly state his plans.

Continue to follow myHRcounsel for all the updates on the overtime rule! 

Judge rules that transgender employee can sue under ADA

In a ruling on May 18, 2017, U.S. District Court judge Joseph F. Leeson, Jr.  of Pennsylvania ruled that a transgender woman could move forward with a sexual discrimination lawsuit against an employer under the Americans with Disabilities Act (ADA).  Currently under law, the ADA explicitly excludes transgender individuals from any protections.  This marks the first time ever that a transgender person will be able to sue under the ADA.

Judge Leeson Jr. avoiding ruling on the constitutionality of the ADA, but he found that the case could go forward as the ADA is designed to give people with disabilities the right to pursue discrimination claims.  However, being transgender is not considered a disorder, but it can give rise to what is known as gender dysphoria, which is a type of anxiety- which may require medical treatment.  The Judge ruled in the plaintiff’s favor due to gender dysphoria, as the plaintiff claimed that they were fired after a pattern of harassment which included of her being denied use of the women’s bathroom, and being forced to use a name tag which had her male name given at birth.