Category Archives: Compliance

E.E.O.C. Updates Guidance on Hearing Impairments in the Workplace

Joe Nierenberg / February 06th 2023 / No Comments

The U.S. Equal Employment Opportunity Commission on January 24, 2023, announced an updated guidance document addressing hearing impairments in the workplace through the perspective of the Americans with Disabilities Act. The update is intended to assist employers and other interested persons navigate the A.D.A. as it applies specifically to hearing impairments on the job.

The updated guidance includes information about workplace hearing issues generally; about an employer’s acquiring and using medical information about an applicant or employee; about maintaining the confidentiality of medical information; about accommodating hearing impairments of applicants or employees; about safety concerns; about harassment; and about retaliation.

Other E.E.O.C. resources relating to disabilities in the workplace are linked here.

Hospitality Workers’ Right to Recall

Joe Nierenberg / April 20th 2021 / No Comments

The city of Minneapolis joins Los Angeles, Oakland, Detroit, Philadelphia, and other major metropolitan areas in enacting an ordinance that provides some workers in the hospitality sector with recall rights as the economy reopens. Effective May 1, 2021, the Minneapolis ordinance provides recall rights to employees who had been laid off from work at hotels or event centers–including “contracted, leased, or sublet premises connected to or operated in conjunction with the Event Center’s purpose”–within city limits, subject to limitations as provided in the law. The ordinance generally provides rights to employees who had worked for covered employers at least half of the year prior to March 13, 2020, and who were laid off without cause after that date. A concise summary of the ordinance, as well as contact information for the City’s Labor Standards Enforcement Division, can be found at this page. For additional answers, please see our contact form.

E.E.O.C. Announces September 30, 2019, Deadline for 2018 EEO-1 Submissions Including Component 2 Data

Joe Nierenberg / April 05th 2019 / No Comments

Brief History

Annual EEO-1 survey data must be reported (a) by employers that are covered by Title VII and have more than 99 employees and (2) by federal contractors and their immediate subcontractors that are covered by E.O. 11246 and have more than 49 employees and a relevant contract of at least $50,000.

In 2016, the E.E.O.C. expanded the kinds of data that should be reported in the EEO-1. The expanded data, “Component 2 data,” included compensation data analyzed by pay tier, category, age, race, sex, and ethnicity.

In 2017, the O.M.B. revoked its Paperwork Reduction Act approval of the E.E.O.C.’s 2016 expansion of required EEO-1 data. The National Women’s Law Center and others challenged the validity of O.M.B.’s action. The court sided in part with the plaintiffs, and invalidated O.M.B.’s stay. E.E.O.C. suggested that employers and the agency itself might need substantial time to prepare their procedures to submit and to accept the Component 2 data. The Court required an accelerated response.

Recent Development

On April 3, E.E.O.C. filed its response to the Court’s efforts to move the process along more expeditiously. The Agency has rescheduled the EEO-1 submission deadline for 2018 data, including Component 2 data, to September 30, 2019.

The EEO-1 reporting portal is not yet capable of receiving the Component 2 data. Presumably, E.E.O.C. will issue instructions over the coming months, as the reporting enhancements come on line.

Court Vacates Wellness Program Incentives

Joe Nierenberg / March 19th 2019 / No Comments

A federal district court has vacated parts of the E.E.O.C.’s 2016 rules on employer wellness programs. Prior to the court’s action, wellness programs that were part of a group health plan and that included inquiries into an employee’s health or included medical examinations were permitted to offer discounts to the cost of self-only and spousal coverage. The court’s order vacates those incentive provisions. For detailed information, see the judge’s memorandum.

Note that wellness programs can lawfully report the employees’ health information only in an aggregated form that does not include personally identifiable information.

Revised F.M.L.A. Forms Now Available

Nierenberg Law / August 31st 2018 / No Comments

The U.S. Department of Labor has revised its approved forms for various stages of the F.M.L.A. process. The new forms, which are valid for the next three years, can be found here.

Minneapolis Minimum Wage Ordinance-Update

Joe Nierenberg / June 14th 2017 / No Comments

Here is an update, current as of June 14, on the Minneapolis City Council’s movement toward an increase in the minimum wage for employees working within the city of Minneapolis (Council File Number: 17-00723).

A draft ordinance has been presented to the City Council (technically to the Committee of the Whole). The draft is available here.
A slide presentation on the proposed ordinance is available here. Note that the ordinance will cover employees who normally work within the City for at least two hours in a given workweek.
A public hearing will be held on Thursday, June 22, 2017, at 3:30pm. Comments can be submitted before that time by e-mail to this address.
The final draft ordinance will go before the Council’s Committee of the Whole on Wednesday, June 28, 2017, at 10:00am. The Council is expected to act on the matter on Friday, June 30, at it’s 9:30am meeting.

The City’s staff has prepared a report on the issues, which is available here. Among its many important points is a comparison of buying power. See paragraph a on page 21.

Note also that there has been no traction to date on changing the State’s law that bars tip credits toward the minimum wage. (For mid-priced restaurants, which present relatively affordable options served by employees who receive customer gratuities, the increase in minimum wage without a tip credit is likely to result in cuts to already slim profit margins, and/or increased wage disparities between customer-facing staff (front of house) and those supporting the efforts behind the scenes (back of house), and/or higher prices for consumers.)

Information on Minnesota’s current minimum wage laws can be found here, here, and here.

If you have questions concerning this or other employment-related laws, please call or contact us.

Still Using Old F.M.L.A. Forms?

Joe Nierenberg / October 24th 2016 / No Comments

Many employers covered by the federal Family and Medical Leave Act are still using forms from the U.S. Department of Labor that expired in 2012. Newer forms, which are good through May 31, 2018, are available from Labor’s web site.

There are several reasons to use the current forms. Perhaps the most important reason is that the current F.M.L.A.-related forms include “safe harbor” text to avoid inadvertently violating the Genetic Information Nondisclosure Act (“GINA”). That law prohibits an employer’s discriminating against an employee “because of genetic information with respect to the employee….” The safe harbor text, incorporated into the newer F.M.L.A. forms, precludes liability under GINA from an employer’s unintential receipt of an employee’s genetic information during the interactive process or other F.M.L.A.-related activities.

If you’re not already using the current Department of Labor forms or other forms revised to include the GINA safe harbor provided at 29 C.F.R. §1635.8(b)(1)(i)(B), it would be prudent to update soon.

Guidance on Implementing the New Overtime Salary Threshold

Nierenberg Law / June 06th 2016 / No Comments

When a new development arises in employment or labor law, our clients often learn about it from their newsletter subscriptions. Then they come to us for guidance on implementation: the implications of various options, managing conflicts with other policies or procedures, harmonious drafting, etc. That pattern does not appear to be working for the recent change in federal overtime regulations.

While the newsletters did a good job of announcing the change, our clients and others have been left asking many questions. Fortunately, those questions have answers.

How Should the Rule Change Be Implemented?

One of the questions concerns the fundamental issue of how to implement the change for currently exempt employees whose compensation is below the new threshold. In Minnesota there are four ways to manage this, when increasing the worker’s salary to retain the exemption is not practical. Some states do not allow all of these options.

The simplest way is to compute the person’s average hourly wage based on their current schedule and compensation; work backward to determine what the hourly rate should be, given the specific frequency of overtime hours; pay them as nonexempt, including overtime at the 1.5 rate. This approach, which would work in most situations, entails the least disruption.

A second way is to continue paying them a fixed salary, which would compensate them for a workweek of fluctuating hours. This approach still requires that overtime be paid, but at the reduced rate of 0.5 their regular rate. Again, there should be a preliminary computation of the current average hourly rate, factor in the frequency of overtime, and calculate a new weekly salary. The regular rate in these cases must be recalculated weekly, and there are several preconditions necessary for this approach to be lawful.

The third approach is still to pay a fixed salary for a fluctuating workweek, but the salary includes all overtime (up to an aggregate of sixty hours worked per workweek). This third approach requires more preconditions in place than the second approach, and therefore applies to the fewest situations.

Finally, the only approach which does not involve overtime is to reduce the affected employee’s hours to forty per week, and to hire or assign a different person to work the balance of hours necessary to accomplish the job’s requirements. This approach is the most disruptive, because it reduces the affected employee’s compensation, inserts an additional person into the mix, and risks increasing the employer’s non-wage benefit costs.

Selecting which approach to use in restructuring an affected employee’s compensation depends on several factors, including the requirements of the specific jobs; the employer’s budget, in terms of both dollars and flexibility; the terms of any applicable contracts; retention issues; and the employer’s objectives. Implementing the first and fourth approaches may not require an attorney’s assistance. The second and third approaches should be undertaken only after consulting with a knowledgeable attorney or other specialist in wage and hour law.

What Effect Will the Rule Change Have On Labor Costs?

Another concern being voiced frequently is how to fit the rule change into an existing personnel cost structure. The budget is one of the drivers in selecting one of the four options above. If the appropriate preconditions exist, implementing the rule change could be cost-neutral; otherwise, there will be a change to the labor cost. Selecting an implementation option, therefore, involves understanding the alternatives, defining the relevant factors noted above, and ranking them.

How Can These Changes Be Communicated With Least Disruption?

Another question heard frequently is how to communicate these changes. The first step in addressing this issue is to determine whether the possible problem is one of prestige or money. Some employees may bristle at no longer being considered exempt. Most employees would bristle at a decrease in compensation, particularly if their overtime hours and associated wages will be given to a different person. Changes in label from exempt to nonexempt are easier to manage, although the emotional aspect of a classification change should not be underestimated. Communicating financial changes is more difficult. In those cases, it is often advisable to explain the problem with the affected employee and to solicit ideas; again, the emotional piece is important.

Additional issues are discussed in another article on this site. See “Trade Secrets, Overtime, and Other Priority Developments.”

Do you have questions or solutions not discussed above? We’re interested to hear them. You can add a Comment or send us an e-mail. And, of course, we’re available to answer questions and to assist with the transition.

Trade Secrets, Overtime, and Other Priority Developments

Joe Nierenberg / June 05th 2016 / No Comments

It’s been a busy time in the world of employment law. A few recent developments have particular priority for human resources managers and general business lawyers. This post concerns three of those developments: trade secrets, overtime exemptions, and changes to the E.E.O.-1 form.

New Trade Secret Protections and Requirements

One development concerns proprietary and confidential information. A new law offers the first federal protections for trade secrets. It’s an important law. Part of it authorizes the seizure of things that were used in the process of allegedly diverting trade secrets, such as computers and storage media. That’s an important contingency that should be considered when provisioning critical hardware, proprietary software, and network access.

Another part of the law requires the supplementation of all agreements with employees and contractors which addresses confidential information or trade secrets. Those materials must now contain a notice to employees (or reference to a separate, available document) to the effect that trade secrets may be used in a limited fashion to engage in whistleblowing activity or in employment litigation alleging whistleblower retaliation.

In light of the Defend Trade Secrets Act, employee agreements, handbook policies, and other materials which contain provisions on trade secrets should be reviewed and supplemented with appropriate text as soon as possible. (And, of course, this is a good opportunity to be sure that other developments from the past few years are properly implemented, such as Minnesota’s Women’s Economic Security Act and the N.L.R.B.’s application of Section 7 to handbook and other employee policies.)

New Overtime Eligibility Rule, Pay Equity, and the E.E.O.-1

Most employers by now have received multiple announcements of the final rule issued last month by the U.S. Department of Labor concerning the increased salary threshold required to be exempt from overtime. Organizations should review their options on classifying and compensating affected employees. There are several ways to proceed in compliance with the regulation, depending on employer objectives.

Just complying with the new rule, though, could leave an organization vulnerable to adverse assessments in the near future, assuming that the categories of data required for the E.E.O.-1 form expand as planned. Here’s why, and what to do:

All organizations with 100 employees and many smaller organizations must file an E.E.O.-1 annually with the U.S. Equal Employment Opportunity Commission. The form includes information on current employees by job category, ethnicity, and sex. If the current rulemaking proceeds as planned, the form will also include twelve compensation bands. Now hold that thought….

There’s been a resumption in the discussions among some circles about comparable worth analyses. The comparable worth approach seeks to close the gender-based pay gap by comparing compensation by gender within “comparable,” but not “equal,” jobs. Minnesota and California have long required comparable pay assessments in the public sector. Minnesota now also requires comparable pay for private and third sector employers with at least forty employees having government contracts of at least a half-million dollars. There is an increased focus, and in some areas also legislative activity, around employee protections for discussing compensation issues. Add in the increase in data collection, analysis, and dissemination that current technologies and vendors are providing, and it seems likely that there will be an increase in lawsuits attempting to prove sex discrimination through a deep analysis of how employers have arrived at gender disparities in the compensation of comparable, but not equal, jobs. Let’s go back to those E.E.O.-1 changes.

The new form will funnel multiple jobs and job categories into a dozen compensation-based bands for employers (and sufficiently related employer groups) having 100 employees. By doing so, the information will help the government to assess the distribution of jobs by compensation level as well as by the various other attributes entered into the form.

The information should also help employers to smooth out gender- (and other non-job-) based inequities, whether derived from bias, history, or other sources. Smoothing out those arguable inequities would minimize exposure to a range of problems based on a comparable worth analysis, including investor inquiries, government contract compliance, and even discrimination claims, which have generally been unsuccessful but are showing signs of making a comeback. And what might happen if the EEO-1 shows inequities that are not self-remedied? In litigation, the information would likely become available (from the employer, not the government) to plaintiffs challenging job bias.

Now let’s go back to that new F.L.S.A. regulation. Employers should review the overtime classifications of currently exempt workers who make less than the new salary threshold. They could take this opportunity to review, as well, their other employees’ overtime classifications. But any adjustments employers make—e.g., to classification, compensation levels, compensation mechanisms, reporting lines—should anticipate the forthcoming E.E.O.-1 requirements. This is a good time to rationalize classifications and compensation, and to develop a plan to squeeze out any vestige of bias in the way that employees are compensated and assigned. More guidance on ways to implement the new rule will appear in a later post.

A comprehensive approach to these issues also answers one of the common questions raised by the new F.L.S.A. regulation: “How do I communicate the effects of the rule change to my workforce?” Communicating a systematic review of compensation to make the process more transparent and more equitable can increase an employee’s perception of fairness; and research indicates that increased perceptions of fairness result in a decreased litigation risk. (Other elements to communicate in the course of implementing the regulation depend on employer objectives and choices, but the message to employees need not be negative and the effect on employer budgets need not be extreme.) More information on the subject of communication will appear in a later post.

Note that employers are likely to have an obligation to bargain over one or more aspects of compensation adjustments for unionized employees. The scope of the bargaining duty will depend on the specific collective bargaining relationship, including both contract language and past practice.

A careful implementation of the new overtime salary rule could be an affordable opportunity to improve morale, enhance recruiting and retention, minimize bias-related exposure to liability, and promote regulatory compliance. Let us know if we can help.

Workplace Speech: What is Permitted, and What is Prohibited

Nierenberg Law / October 16th 2015 / No Comments

Employee speech is a complex and developing area. The rules are scattered among otherwise unrelated laws, enforcement guidelines, and employer policies. The reputational, morale, and financial consequences of noncompliance can be significant.

Employers are expected to comply with laws affecting speech in the workplace, but they have few helpful resources. The professional and lay resources that are available tend to focus on single areas such as free speech rights for public employees or protected concerted action in the context of social media. In contrast, the laws governing speech in the workplace derive from many sources, including constitutional and statutory restrictions on a government’s use or disclosure of data; Section 7 of the National Labor Relations Act (N.L.R.A.), which applies to many nonunion as well as unionized workplaces; the Privacy and Security Rules of the Health Insurance Portability and Accountability Act (HIPAA); Title VII (of the Civil Rights Act of 1964); Title IX (of the Education Amendments of 1972); and many other sources.

Assisting employers to navigate these waters, Joe Nierenberg delivered a presentation on the topic to the 2015 Minnesota conference of the Society of Human Resources Managers (MN SHRM). The session addressed the types of employee speech that an employer must allow and the types of speech that an employer can restrict. Attendees learned the general principles that apply, and discussed specific policies that had been ruled lawful or unlawful. The presentation wove together the most common rules on workplace speech, and assessed them under four principles: what speech is prohibited; what speech is permitted; when the allowance or proscription is mandatory; and when the allowance or proscription depends on context. The session objectives included more compliant and confident management of policies, procedures, training, and discipline.

Presentation slides never tell the whole story of a live training program with audience discussion, but here’s the deck that was part of the session. Please note that all rights are reserved to Nierenberg Employment Law; that, because viewing alone is an incomplete experience, the slides alone should not be relied upon as legal advice; and that the slides are current only as of October 13, 2015.

You can view or download the slides here.

If you are interested in training your executives or managers to comply with workplace speech rules, or wish to discuss other available topics, please contact us.

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