Category Archives: Other Regulations

Update on the Future of the New EEO-1 Report

Not a week goes by without the question being asked, “What should I be doing right now to prepare to file the revised EEO-1 Report?”  And the answer is:

“We still don’t know.”

As you are aware, the EEOC moved the filing date for the revised EEO-1 from September 30, 2017 to March 31, 2018.  This was done to ostensibly give employers additional time to gather the compensation data that now must be reported along with the customary employee demographic information provided to the Joint Reporting Committee.

However, there has been substantial controversy and conflicting reports as to whether the compensation reporting provision of the revised EEO-1 will survive in its current iteration.  What we do know is that:

  • Legislation has been introduced that would prevent the EEOC from spending any money to implement the new report.  Note that this would not do away with the requirement to gather and submit the data.
  • President Trump has nominated two Republicans to the remaining vacant EEOC Commission slots.  Janet Dhillon has been nominated to also be EEOC Chairperson, and Daniel M. Gade was nominated to the last open position.  The nomination and appointment of Chair Dhillon and Commissioner Gade would swing the make-up of the leadership of the EEOC to majority Republican.  This would seem to indicate a willingness to address the concerns voiced by the employer community regarding the revised EEO-1.
  • The U.S. Chamber of Commerce has petitioned the Office of Management and Budget (OMB) to re-evaluate the “burden estimate” to comply with the data collection and reporting requirements of the revised form.
  • On August 3, 2017, Acting EEOC Chairperson, Victoria Lipnic, announced at the National Industry Liaison Group (NILG) conference in San Antonio, TX that she had contacted the new head of the Office of Information and Regulatory Affairs (OIRA), Neomi Rao.  The OIRA is the office within OMB charged with reviewing proposed regulations as well as their implementation.  Acting Chair Lipnic has not been shy about voicing her opinion that the compensation portion of the revised EEO-1 is a “poster child” of the excessive regulatory burden that the current administration vowed to overturn after the election.  Acting Chair Lipnic has requested that OIRA and OMB provide employers with an answer by August 31, 2017 regarding the future of the revised EEO-1.

Speculation at the conference was that while the March 31, 2018 filing date would remain unchanged, implementation of the compensation and reporting component would likely be delayed a year. 
 
So, what should employers be doing now?  Our recommendation is to continue to wait, at least until the end of August, to see if there is any guidance forthcoming from the EEOC or OMB.  At that point, if there is still no information regarding future of the compensation component, then employers should begin to evaluate what will need to be done to file the revised EEO-1, including the compensation component, by March 31, 2018.   This should be accomplished, keeping in mind that between August 31, 2017 and March 31, 2018, much can change.

New Form I-9 in Effect

In November 2016, the U.S. Citizen and Immigration Services (USCIS) revealed a revised version of the Form I-9.  As of January 22, 2017, all employers must begin using this new version (dated 11/14/2016 in the bottom-left corner).

The most prominent change to the new Form is that it is now available as both a traditional paper version and also as an interactive, fillable PDF document, allowing it to be completed with software found on most computers.  Being dubbed as a “Smart” document, the new PDF version has features such as drop-down menus and real-time error messages that will help both employers and employees properly complete the new Form.

Other minor changes include:

  • In Section 1, employees only need to provide “Other Last  Names Used (if any)” rather than “All Names Used.”
  • There are additional spaces to enter multiple preparers and translators. If you are using the “Smart” version, additional spaces will appear if you check the box indicating that more than one preparer or translator was used. If you are using the traditional paper version, the extra spaces are located on the Form I-9 Supplement.
  • In Section 2, there is now a dedicated space for “Additional Information,” eliminating the need to write comments and other miscellaneous information in the margins of the form as in the past.

To avoid any confusion, copies of the prior version, dated 03/08/2013, should be discarded.  The new I-9 has an expiration date of August 31, 2019.  Failure to use the revised Form may result in recently-increased penalties, which range from $216 to $2,156 for paperwork violations.

Be advised that even if your company uses E-Verify, all employers must use the Form I-9.  Utilizing E-Verify does not remove an employer’s obligation to complete the Form.

For copies of all versions of the Form as well as instructions on how to complete them, please visit:

https://www.uscis.gov/i-9

If you would like to discuss the new Form I-9 or E-Verify in more detail as they each apply to your specific organization, please do not hesitate to contact us.

EOs & Regulations – Promise to Repeal

A cornerstone of President-Elect Trump’s election campaign was the promise to roll-back and eliminate regulations and Executive Orders (EOs) issued and implemented by the outgoing administration.   In just the employment arena affecting federal contractors, this includes:

  • EO 13658 – Minimum Wage for Federal Contractors
  • EO 13665 – Pay Transparency
  • EO 13672 – LGBT regulations
  • EO 13673 – Fair Pay and Safe Workplaces (“blacklisting” – currently blocked by federal courts)  EO 13706 – Paid Sick Leave
  • New regulations for affirmative action for Veterans and the Disabled
  • New regulations on discrimination on the basis of sex

In addition, there are regulations, rules, and expanded/new interpretations of existing rules affecting all employers regarding eligibility for overtime (blocked last week by a Texas district court); expedited union representation elections; “ban-the-box” limitations; increased OSHA fines; the Pregnant Workers Fairness Act; and the revised EEO-1 report requiring compensation data.

Continue reading EOs & Regulations – Promise to Repeal

Fair Pay Injunction

In a significant “win” for federal contractors and subcontractors, a federal district court in Texas has issued a nationwide preliminary injunction against the implementation of the requirements to disclose labor law violations as well as the anti-arbitration provisions contained in the Fair Pay and Safe Workplaces regulations and guidance that were to be effective October 25, 2016.  The FAR Council and the U.S. Department of Labor issued the regulations and guidance on August 25, 2016.

The Court held that the Plaintiffs challenging the rule had demonstrated:  1) a substantial likelihood of success on the merits; 2) a substantial threat of irreparable injury; 3) that the threatened injury outweighs any damage the injunction would cause the Defendants; and 4) that the order will not be adverse to the public interest.

Specifically, the Court held:

  1. That the Executive Order, FAR Rules, and DOL Guidance, separately and together, exceeded the President’s, FAR Council’s, and DOL’s authority and are otherwise preempted by other federal labor laws.
  2. That the Executive Order, the FAR Rules, and the DOL Guidance violate the First Amendment in that they “compel speech.”
  3. That the Executive Order, the FAR Rules, and the DOL Guidance violate the Due Process Rights of Government Contractors and Offerors.
  4. That the New Rule and Guidance are arbitrary and capricious and entitled to no deference.
  5. That the Executive Order and FAR Council Rule violates the Federal Arbitration Act.

What this means is that for the time being, and pending further legal actions, federal contractors and subcontractors do not have to comply with the provisions of the regulations or guidance that were to be effective October 25, 2016.  These provisions and guidance relate to disclosing labor law violations or amending ADR programs as connected to Title VII, Sexual Harassment or Assault claims.

However, the Court did not enjoin the implementation of the Paycheck Transparency requirements that will still be effective January 1, 2017.  Contractors and subcontractors must continue to prepare to comply with this section, if applicable.

We will continue to monitor developments with this action and will notify you of any updates.