April 2019 E-Update


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The Latest on the EEO-1 Form: Demographic Data Due By May 31, Compensation Data Due By September 30

In the latest development of the long-running saga of whether and when the new requirement to submit compensation data through the EEO-1 form will take effect, a federal district court has now ordered that covered employers must submit such data by September 30, 2019, and the Equal Employment Opportunity Commission intends to begin collection on July 15, 2019. Meanwhile, as of the current time, the traditional demographic data must still be submitted by May 31, 2019. For more, click here.

DOL Issues New (Not So Interesting) FLSA Opinion Letters on the “8 and 80” Rule, the Teacher Exemption, and the Agricultural Exemption

In addition to the significant opinion letter on independent contractor status discussed elsewhere in this E-Update, the Wage and Hour Division of the Department of Labor issued three other new opinion letters of limited general interest to employers. For more, click here.

Union Dues Revocation Developments – NLRB Issues Both Advice Memo and Decision

This month, the National Labor Relations Board issued both a decision and an Advice Memorandum (from 2016) that addressed the issue of the revocation of dues check-off authorizations.  For more, click here.

And Even More NLRB Advice Memos – Work Rules, Communication Practices, and the Union’s Duty of Fair Representation

In addition to the dues revocation advice memo discussed elsewhere in this E-Update, the National Labor Relations Board issued another eight advice memoranda from the Office of General Counsel this month, some originally written years ago.  For more, click here.


Fifth Circuit Holds That Title VII Does Not Prohibit Sexual Orientation Discrimination

Recognizing that other federal circuit courts have found Title VII’s prohibition on “sex discrimination” to encompass sexual orientation discrimination, the U.S. Court of Appeals for the Fifth Circuit nonetheless reiterated its longstanding position that “Title VII in plain terms does not cover ‘sexual orientation.’” For more, click here.

Comparators Must Be Similarly Situated, Not Identical

Two separate U.S. Court of Appeals reiterated that, for purposes of establishing discrimination, comparators need only be similarly situated and not identical. For more, click here.

DOL Announces Toolkit for Cultivation of Mental Health-Friendly Workplaces

The Department of Labor has announced a “Mental Health Toolkit” intended to help employers better understand mental health issues and to provide background, tools, and resources to assist employers in creating a supportive work environment for employees with such conditions.

DOL Announces New Pilot Program for Discretionary Suspensions and Debarments of Government Contractors

The Department of Labor has created a one-year pilot program intended to ensure accountability by expediting the process for discretionary suspensions (for up to 12 months) and debarments (for up to 3 years) of government contractors found to have engaged in inappropriate or illegal conduct. For more, click here.

Complaining and Swearing About Clients Is Not Protected Under the NLRA

In Quicken Loans, Inc., the National Labor Relations Board found that two mortgage bankers’ discussion involving complaints about clients, including swearing about the clients, was not protected concerted activity under the National Labor Relations Act.. For more, click here.

Employer’s “Significant and Pervasive” Unfair Labor Practices Result in Special Remedies

In Sysco Grand Rapids, LLC, although the National Labor Relations Board declined to issue a remedial bargaining order against an employer who engaged in “pervasive unlawful conduct” during a union organizing campaign, it nonetheless imposed unusual remedies for such conduct.  For more, click here.

What’s the Buzz? NYC Bans Pre-employment Marijuana Testing

The New York City Council has passed legislation banning pre-employment testing for marijuana, and the Mayor has indicated that he will sign it.  For more, click here.

TOP TIP: DOL Offers Guidance on Determining Independent Contractor Status Under the FLSA

The Department of Labor issued an opinion letter in which it details the principles by which independent contractor status under the Fair Labor Standards Act should be determined. This letter outlines the DOL’s latest position on this controversial topic and provides significant guidance to employers.  For more, click here.