February 2019 E-Update


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EEO-1 Filing Deadline Extended, and Other Impacts of the Government Shutdown on EEOC Timelines

The Equal Employment Opportunity Commission issued questions and answers related to the impact of the government shutdown on EEOC timelines, including the annual filing of the EEO-1 form. For more, click here.

DOL Issues Guidance on Tipped Employees

Following its November 8, 2018 opinion letter on the same topic, the Department of Labor’s Wage and Hour Division has now published guidance stating that it “will no longer prohibit an employer from taking a tip credit based on the amount of time an employee spends performing duties related to a tip-producing occupation that are performed contemporaneously with direct customer-service duties for a reasonable time immediately before or after performing such direct-service duties. For more, click here.

EEOC Issues Proposed Rule Update on Digital Charges and a Little More

The Equal Employment Opportunity Commission issued a proposed rule revising its procedural regulations to account for its increasing reliance on digital charge technology and communications. It also took the opportunity to make some slightly more substantive changes as well. For more, click here.

OFCCP Issues Directive Establishing Voluntary Program for “High-Performing” Contractors

The Office of Federal Contract Compliance Programs has issued a new directive creating a Voluntary Enterprise-wide Review Program (VERP) as an alternative to the typical establishment-based compliance review process. For more, click here.

Fourth Circuit Offers Useful Guidance on ADA/Rehab Act and FMLA

In a wide-ranging case, the U.S. Court of Appeals for the Fourth Circuit offered employers guidance on a number of interesting and significant issues under the Rehabilitation Act (and by extension the Americans with Disabilities Act, which is subject to the same analysis as the Rehab Act), as well as the Family and Medical Leave Act. For more, click here.


Supreme Court Strictly Limits Appeal of Rule 23 Class Certification Orders

The U.S. Supreme Court ruled that the right to seek permission to appeal an order certifying or decertifying a class under Rule 23 of the Federal Rules of Civil Procedure is subject to a mandatory 14 day limitations period following the court’s order. For more, click here.

Court Finds Implied Right of Private Action in Arizona’s Medical Marijuana Law

Although Arizona’s medical marijuana law does not contain language that expressly provides medical marijuana users the right to sue employers, the federal district court in Arizona has found that such an implied right exists. For more, click here.

Ninth Circuit Adopts Common-Law Agency Test for Joint Employment Under Title VII

The U.S. Court of Appeals for the Ninth Circuit determined that common-law agency principles should be utilized in determining whether joint employer relationship exists under Title VII.For more, click here.

Fifth Circuit Affirms That Title VII Does Not Prohibit Discrimination on Basis of Transgender Status

Citing to longstanding circuit precedent, the U.S. Court of Appeals for the Fifth Circuit stated that Title VII’s prohibitions on sex discrimination do not encompass discrimination based on sexual orientation or transgender status. For more, click here.

Spreading False Rumors May Create Hostile Work Environment

The U.S. Court of Appeals for the Fourth Circuit found that spreading a false rumor that a female employee slept with the boss in order to get promoted could create a sexually hostile work environment in violation of Title VII. For more, click here.

Employers Must Protect Employees from Third Party Harassment – and Context Matters!

The U.S. Court of Appeals for the Fifth Circuit found that an employer could be liable to a certified nursing assistant for a hostile work environment created by a patient who had engaged in years of sexual comments, groping, and assault. For more, click here.

Be Careful In Conveying Information About Benefits Available to Union v. Non-Union Employees

In Woodbridge Winery and Cannery, the National Labor Relations Board affirmed an administrative law judge’s (ALJ) decision that an employer’s handbook provision regarding its incentive plan violated employees’ rights to participate in a union under Section 8(a)(1) of the National Labor Relations Act.  For more, click here.

Things Have Gotten Hairy! NYC Prohibits Hair Discrimination

Following a well-publicized incident where an athlete was required to cut his dreadlocks before being allowed to compete, the New York City Commission on Human Rights has issued a Legal Enforcement Guidance on Race Discrimination on the Basis of Hair. For more, click here.

Fourth Circuit Finds Blended Rate of Non-Overtime and Overtime Hours to Violate FLSA

The U.S. Court of Appeals for the Fourth Circuit found that an employer violated the Fair Labor Standards Act by using a blended rate for all hours worked to calculate overtime, rather than the actual hourly rate for all hours worked. For more, click here.

OFCCP to Announce Compliance Evaluation Scheduling List Only Through Electronic Posting

Up until now, the Office of Federal Contract Compliance Programs has typically mailed notifications that an establishment is on a list for a compliance evaluation in the near future. It has announced, however, that it will no longer do so, but will instead post the Corporate Scheduling Announcement List (CSAL) in its FOIA Library only.  For more, click here.

TOP TIP: Be Thoughtful When Requiring Fitness For Duty Examinations

A recent case from the U.S. Court of Appeals for the Fourth Circuit highlights the need for employers to be extremely careful in requiring employees to undergo fitness for duty examinations, even when such requirements may appear to be logical. For more, click here.