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Social Media Policy Checklist For Employers

A social media policy or a set of guidelines helps your employees make smarter decisions when marketing your brand, products and services online and may mitigate the risk of coming under the radar of the FTC or another regulatory agency or simply avoiding bad PR.

Key Players. Legal should play a key role in creating a social media policy or set of guidelines, but it is wise to involve personnel from marketing, IT, and HR. Also consider including representatives from a selection of departments to get valuable input from employees that the policy is intended to guide.

Identify and Evaluate. Before drafting a social media policy, the key players must carry out internal due diligence.

Identify and evaluate the categories of confidential information that your employees have access to and may inadvertently share on social media.
Identify and evaluate the type of content that employees post on social media platforms. Is the content generally created in-house? By an ad agency? From other third-party sources? Are social media campaigns usually text-only or do they include photos, music, videos, endorsements? Understand the legal issues associated with posting content online.
Identify and evaluate other legal risks associated with the use of social media in your business, including third-party terms of use, employment laws, privacy claims, securities laws and other laws that may be triggered by the use of social media by employees. For example, the National Labor Relations Board has found overly restrictive social media policies to violate employees’ protected rights.

Purpose and Scope. The policy should reflect the type of social media engagement that your company and employees actually use. For example, does your company maintain a Facebook® page or a blog? Use LinkedIn® to post articles? Run promotions on Instagram®? Do your employees use personal social media accounts to post on behalf of the company or only employer-created accounts? The answers to these questions will affect the types of social media guidelines that you should create for your employees.

Be Practical, Positive and Consistent. The policy should be easy to read and interpret. The intent is not to discourage social media use, but to make use smarter. Try to phrase the guidelines as things employees “can” do rather than cannot do. Use terms that employees engaged in social media will understand. For example: avoid using terms from the Copyright Act such as “reproduce, distribute or display,” and instead use “post, tweet or pin.” The policy should also match the general values and culture of your company and the other policies that you may have in place that overlap with social media policies.

Training. Training is essential. Do not just add the policy to the employee handbook and hope that your employees will read it. Explain why social media guidelines are important to the company and the company’s reputation and relationship with customers, vendors and other third parties. Explain the legal risks of “social media posts gone wrong.” Arrange a lunch and learn to walk through the policies and provide examples of “Dos and Don’ts.” Create a short checklist of key takeaways from the policy and post the checklist in areas where employees who regularly post on social media work.

Monitor and Re-visit. Monitor compliance and ensure enforcement is uniform. Social media changes quickly, so the policy should also be re-visited frequently to make sure that new forms of social media engagement are captured.

ARTICLE BY Orla M. O’Hannaidh of Womble Carlyle Sandridge & Rice, PLLC

Election Day is Coming – What are Your Obligations as Employer?

With Election Day drawing near, and large voter turnout expected, employers should ensure they are aware of state law requirements related to providing employees with time off. While not all states impose requirements on employers, some impose time off obligations with the possibility of criminal or civil penalties for non-compliance.

Applicable laws vary by state. Some provide for paid time while others do not mandate that such time off be paid. Laws also vary as to the amount of time that must be provided and whether an employer can dictate which hours are taken off, such as at the start or end of the workday. Further, some jurisdictions require postings to advise employees of voting leave rights. Additionally, some jurisdictions also obligate employers to provide time off to employees who serve as election officials or to serve in an elected office.

Accordingly, employers should immediately review existing policies and practices to ensure compliance with applicable laws and be prepared to address requests for time off prior to Election Day.

The following is a sample of state requirements regarding voting time off:

Arizona – Arizona Revised Statute § 16-402 provides that an employee has the right to be absent from work if he or she has fewer than 3 consecutive hours in which to vote between the opening of the polls and the beginning of his or her work shift or between the end of his or her regular work shift and the closing of the polls. An employee may be absent for a length of time at the beginning or end of his or her work shift that, when added to the time difference between work-shift hours and the opening/closing of the polls, totals 3 consecutive hours.

Notice: The employee must apply for leave prior to Election Day.
Hours: The employer may specify the hours.
Paid: Leave is paid.

California – Pursuant to California Election Code § 14000, employees are entitled to an amount of time off to vote that, when added to the voting time otherwise available to him or her outside of working hours, will enable him or her to vote. Employee with sufficient non-working time to vote are not entitled to additional time off to vote.

Notice: Two working days’ advance notice prior to the election is required if, on the third working day prior to the election, the employee knows or has reason to believe he or she will need time off in order to vote.
Hours: Time may be taken only at the beginning or end of the work shift, whichever allows the greatest amount of free time for voting and least time off from work, unless otherwise mutually agreed.
Paid: No more than 2 hours of the time taken off for voting shall be without loss of pay.

Colorado – Colorado Revised Statute §1-7-102 provides that eligible voters are entitled to be absent from work for up to 2 hours for the purpose of voting on Election Day unless the employee has 3 or more non-working hours to vote while the polls are open.

Hours: The employer may specify the hours of absence, but the hours must be at the beginning or end of the work shift, if the employee so requests.
Paid: No more than 2 hours.

Hawaii – Pursuant to Hawaii Revised Statutes § 11-95, employees who do not have 2 consecutive non-working hours to vote while the polls are open are entitled to take time off up to 2 hours (excluding any lunch or rest periods) to vote, so that the time taken when added to the non-working time totals 2 consecutive hours when the polls are open. Employees cannot be required to reschedule their normal work hours to avoid the needed time off.

Paid: Employees must be paid for time taken during working hours. If any employee fails to vote after taking time off for that purpose, the employer, upon verification of that fact, may make appropriate deductions from the salary or wages of the employee for the period during which the employee is entitled to be absent from employment.
Proof: Presentation of a voter’s receipt to the employer shall constitute proof of voting by the employee.

Maryland – Maryland Election Law Code §10-315 states that every employer in the state must allow employees who claim to be registered voters to be absent from work for up to 2 hours on Election Day to vote if the employee does not have 2 consecutive non-working hours to vote while the polls are open.

Paid: Employees must be paid for the up to 2 hours of absence.
Proof: Employees must provide proof of voting or attempt to vote on a form prescribed by the State Board.

New York – New York Election Law § 3-110 states that an employee is entitled to a sufficient amount of leave time that, when added to his or her available time outside of working hours, will enable him or her to vote. Four hours is considered sufficient time. An employee is excluded from leave if he or she has 4 consecutive hours in which to vote, either between the opening of the polls and the beginning of his or her work shift or the end of his or her work shift and the close of the polls.

Notice: The employee must provide notice of leave at least 2, but not more than 10, days prior to the election.
Hours: The employer may specify the hours. Leave must be given at the beginning or end of the work shift, as the employer may designate, unless otherwise agreed.
Paid: Not more than 2 hours may be without loss of pay.

ARTICLE BY Richard Greenberg & Daniel J. Jacobs of Jackson Lewis P.C.

Employers Must Continually Navigate a Minimum Wage Patchwork Across America

Perhaps in response to protests brought by employees and their advocates in recent years, states, counties, and cities across America have been increasing their minimum wage in piecemeal fashion. Few employers are fortunate enough to need worry about only one minimum wage—the federal minimum wage that is the floor below which employers may not go (unless an employer is not covered under the FLSA). Most large employers that operate in multiple states must now navigate a minimum-wage patchwork in which the hourly rate varies from state to state and, sometimes, between counties and cities.

Although the federal minimum wage is $7.25 per hour, 29 states and the District of Columbia have a minimum wage greater than the federal minimum wage. And those states are consistently increasing their minimum wage—New Jersey just passed legislation increasing its minimum wage from $8.38 per hour to $8.44 per hour, effective January 1, 2017, which is also when the Montana minimum wage will go from $8.05 to $8.15 per hour.

California is arguably the most difficult minimum-wage patchwork for employers to navigate. From a present minimum wage of $10 per hour, the California minimum wage will increase one dollar per hour each year until it reaches $15 per hour in 2022. But those increases also result in increasing the minimum salary that must be paid to employees who qualify for most overtime exemptions in California. Because most exempt employees in California must make at least twice the minimum wage on an annual basis, the current minimum salary for exempt employees who work for employers having more than 25 employees will increase from the present minimum of $41,600 per year to a minimum of $62,400 by 2022. (However, if the DOL’s rule goes into effect on December 1, 2016, requiring a new minimum salary of $47,476, then that will be the new floor below which employers may not pay their employees on a salary basis.)

In addition to minimum-wage increases on a statewide level, numerous California cities and counties have passed ordinances increasing their own minimum wages. From San Diego to Berkeley, the minimum wage in many cities has increased quicker than the state minimum wage. California’s minimum wage is presently $10.00 per hour. Employers in Santa Clara and Palo Alto, however, must pay their employees at least $11.00 per hour. Employees across the bay in Oakland must be paid at least $12.25 per hour. San Diego employers must pay their employees $10.50 per hour, as do Santa Monica employers that employ more than 25 employees.

California cities are not the only ones that have increased their minimum wage faster than their resident states. Employers in Albuquerque have had an $8.50 minimum wage since 2013, greater than the $7.50 required under New Mexico law. Similarly, Chicago has a $10.50 minimum wage, although Illinois mandates only $8.25. Seattle businesses that employ less than 500 persons must pay their employees $12.00 per hour, but Washington has a minimum wage of only $9.47.

ARTICLE BY Kevin Sullivan of Epstein Becker & Green, P.C.

Pet Policies at Work: Considerations for Employers

As millennials continue to negotiate workplace perks, such as flexible hours, gourmet cafeterias, gym memberships, and on-demand laundry services, employers may be confronted with employees who seek to bring pets to work for convenience, companionship, or to promote creativity and calmness. Beyond providing reasonable accommodations (absent showing an undue hardship) for disabled employees with services animals, here are some considerations for employers regarding voluntary pet policies.

Pros and Cons

Recent studies and articles advocate for pet-friendly workplaces, citing a number of benefits to companies and workers. Benefits include increased worker morale, co-worker bonding, attracting and retaining talent, and lower stress coupled with higher productivity.

On the other hand, permitting pets in the workplace presents a number of issues. For example, according to a leading asthma and allergy organization, as many as three in ten people suffer from pet allergies, meaning someone at work is likely allergic to Fido or Fifi. A significant number of people also have pet phobias, for example, resulting from a traumatic dog bite incident. Other concerns may include workplace disruption due to misbehaved animals, mess, and time-wasting.

Five Tips for Effective Pet Policies

If the Pros outweigh the Cons, the next question is: “[w]hat should I put in a pet policy?” Here are five things to consider when preparing a pet-policy:

Ask Around: Offer employees an opportunity to provide feedback before implementing a pet-policy. Doing this allows the company time to confirm employee interest in the idea and address any concerns or issues before employees bring pets to work.
Set a Schedule: Establish a schedule for pet-friendly work days, e.g., once a week or month, to provide structure and predictability so that the company and employees can plan, either to bring their pets (or allergy medicine) or to work remotely, for days when pets may be at the office or jobsite.
Provide Pet Space: Designate certain areas as pet-friendly. This benefits everyone. For areas where pets are welcome, provide perks like snacks, cleaning supplies, and toys. Designate entrances and exits that pet owners can use to bring their animals in and out. Space planning also helps employees who prefer to keep their distance, as boundaries provide notice of places to avoid.
Offer Pet Benefits: Certain federal and/or state laws prohibit companies from permitting pets (not to be confused with ADA service animals) at work. Offering employees other benefits like pet insurance, pet bereavement, pet daycare, and financial help for pet adoption are other ways companies can support their pet-owning workers, even if pets can’t come to work.
Waivers and Insurance: No list is complete without accounting for the chance something may go wrong. Consider requiring employees who bring pets to work to sign a waiver of liability for the company. Similarly, companies should check with their insurance to make sure that they are covered in the event an animal causes an injury in the workplace.

What about the ADA?

Voluntary pet policies should be considered separate from a company’s obligation to provide disabled workers with a reasonable accommodation, which may include use of a service animal at work. Three questions to consider when an employee asks to bring a service animal to work as an accommodation include: (1) does the employee have a disability; (2) is this a service animal, meaning is it trained to perform specific tasks to aid an employee in the performance of the job; and (3) is the service animal a reasonable accommodation.

If a service animal results in complaints from other employees (e.g., allergies, phobias, disruption), employers may consider other accommodations, or take other steps to address these complaints. The Job Accommodation Network, a service of the U.S. Department of Labor, Office of Disability Employment Policy, has some helpful tips for accommodating service animals.

ARTICLE BY Garrett C. Parks of Polsinelli PC

Cook County, Illinois, Enacts Paid Sick Leave Ordinance

The Cook County “Earned Sick Leave” Ordinance mandates that employers in Cook County, Illinois, allow eligible employees to accrue up to 40 hours of paid sick leave in each 12-month period of their employment. The Ordinance, passed on October 5, 2016, becomes effective on July 1, 2017.

The Ordinance is similar to amendments to the Chicago Minimum Wage Ordinance providing for paid sick leave, also going into effect on July 1. Chicago is part of Cook County.

Paid Sick Leave Requirements

Who is covered?

Individuals are entitled to benefits under the Ordinance if they:

perform at least two hours of work for a covered employer while physically present within the geographic boundaries of the County in any particular two-week period; and work at least 80 hours for a covered employer in any 120-day period.

Compensated time spent traveling in Cook County, including for deliveries and sales calls and for travel related to other business activity taking place in the County, can count toward the two-hour requirement. However, uncompensated commuting time in the County will not be counted. Certain railroad employees are not covered by the Act.

Covered employers include individuals and companies with a place of business within the County that gainfully employ at least one covered employee. Government entities and Indian tribes are not covered employers under the Ordinance.

The Ordinance does not apply to collective bargaining agreements in force on July 1, 2017. After that date, the Ordinance may be waived in a bona fide CBA if the waiver is explicit and unambiguous. In addition, the Ordinance does not apply to any covered employee in the construction industry who is covered by a bona fide CBA.

What if my company already provides employees with paid time off (PTO)?

If an employer has a policy that grants employees PTO in an amount and a manner that meets the requirements of the new Ordinance, the employer is not required to provide additional paid leave. However, any existing PTO policy must meet each requirement of the Ordinance, including the reasons for which the time off may be used, to qualify for this exemption.

When do employees begin to accrue paid sick leave?

Employees begin to accrue paid sick leave on the first calendar day after the start of their employment or July 1, 2017, whichever is later.

How much sick leave is required and can employers limit the amount used?

Employees will accrue one hour of paid sick leave for every 40 hours worked. For purposes of calculating accruals, the Ordinance assumes exempt employees work 40 hours per workweek, unless their normal workweek is less, in which case the accrual will be based upon the number of hours in their normal workweek.

Accrual and usage of paid sick leave is capped at 40 hours for each 12-month period. Employees may carry over half of their unused paid sick leave (up to 20 hours) to the next 12-month period. The Ordinance also provides for additional carryover and usage for employers covered by the Family and Medical Leave Act that can be used exclusively for FMLA-eligible purposes.

When can employees start using paid sick leave?

New employees can begin using accrued paid sick leave no later than the 180th day following the commencement of employment. The Ordinance is unclear as to how the 180-day waiting period will apply to current employees who were hired prior to July 1, 2017.

For what reasons can an employee use paid sick leave?

Employees may use paid sick leave for their own illness, injuries, or medical care (including preventive care) or for the illness, injuries, or medical care of certain covered family members. “Family member” is defined broadly to include a child, legal guardian, or ward, spouse under the laws of any state, domestic partner, parent, parent of a spouse or domestic partner, sibling, grandparent, grandchild, or any other individual related by blood or whose close association with the employee is the equivalent or a family relationship. “Family member” also includes step- and foster relationships.

Employees also can use paid sick leave if either the employee or a family member is a victim of domestic violence or a sex offense.

Finally, employees are entitled to use paid sick leave if their place of business or the child care facility or school of their child has been closed by an order of a public official due to a public health emergency.

Can employers set restrictions on the use of paid sick leave?

Employers are entitled to set reasonable minimum increments for the use of paid sick leave, not to exceed four hours a day.

What notice must be provided by employees who need to use paid sick leave?

Employers may require that employees provide up to seven days’ advance notice if the need for paid sick leave is foreseeable. Scheduled medical appointments and court dates for domestic violence will be considered reasonably foreseeable. If the need for leave is unforeseeable, employees must provide as much notice as is practical. The Ordinance expressly provides that employees may notify their employers of the need for leave by phone, email, or text message. Employers may adopt notification policies if they notify covered employees in writing of such policies and the policy is not unreasonably burdensome. If leave is covered by the FMLA, notice must be in accordance with the FMLA. Employees need not give notice if they are unconscious or medically incapacitated.

Employers also may require that employees using paid sick leave for more than three consecutive workdays provide certification that the leave was for a qualifying purpose. However, employers cannot require that certification specify the nature of the medical issue necessitating the need for leave, except as required by law. Employers cannot delay commencement of Earned Sick Leave or delay payment of wages because they have not received the required certification.

Do employers have to pay out unused, accrued paid leave upon termination?

Unlike PTO and vacation pay, unless a collective bargaining agreement provides otherwise, unused, accrued sick leave need not be paid out upon termination or separation of employment.

What are the posting and notice requirements?

Employers must post notice of employees’ rights in a conspicuous place at each facility where any covered employee works that is located within the geographic boundaries of the County.

In addition, at the commencement of employment, employers must provide each covered employee written notice advising of his or her rights to Earned Sick Leave under the Ordinance. The Cook County Commission on Human Rights will publish a form notice.

Implementation and Enforcement

The Ordinance provides a private right of action for employees who believe they are denied their right to request or use paid sick leave. Employers who violate the Ordinance may be subject to damages equal to three times the amount of any unpaid sick time denied or lost as a result of the violation, along with interest, costs, and reasonable attorneys’ fees.

Anti-Retaliation

Employers are prohibited from discriminating against or taking any adverse action against covered employees in retaliation for exercising, or attempting in good faith to exercise, any right under the Ordinance, including disclosing, reporting, or testifying about any violation of the Ordinance or regulations promulgated thereunder, or requesting or using paid sick leave. Additionally, an employee’s use of paid sick leave under the Ordinance cannot be counted for purposes of determining discipline, discharge, demotion, suspension, or any other adverse activity under an employer’s absence-control policy.

Employers with operations in Cook County, Illinois, should review the Ordinance and their policies and practices related to paid sick leave carefully.

Employers should review their policies and practices regularly with employment counsel to ensure they effectively address specific organizational needs and comply with all applicable laws.

Article by Kathryn Montgomery Moran & Jody Kahn Mason of Jackson Lewis P.C.

OSHA to Employers: No Gagging Whistleblowers!

On September 9, 2016, the United States Occupational Safety and Health Administration (“OSHA”) published new guidelines for approving settlements between employers and employees in whistleblower cases to ensure that those agreements do not contain terms that could be interpreted to restrict future whistleblowing. OSHA reviews settlements between employees and employers to ensure that they are fair, adequate, reasonable, and in the public interest, and that the employee’s consent was knowing and voluntary. The guidance provides that OSHA will not approve settlement agreements that contain provisions that discourage (or have the effect of discouraging) whistleblowing, such as:

“Gag” provisions that prohibit, restrict, or otherwise discourage an employee from participating in protected activity, such as filing a complaint with a government agency, participating in an investigation, testifying in proceedings, or otherwise providing information to the government. These constraints often arise from broad confidentiality or non-disparagement clauses, which complainants may interpret as restricting their ability to engage in protected activity. The prohibited constraints may also be found in provisions that:
- restrict the employee’s right to provide information to the government, file a complaint, or testify in proceedings based on a respondent’s past or future conduct;
- require an employee to notify his or her employer before filing a complaint or voluntarily communicating with the government regarding the employer’s past or future conduct;
- require an employee to affirm that he or she has not previously provided information to the government or engaged in other protected activity, or to disclaim any knowledge that the employee has violated the law; and/or
- require an employee to waive his or her right to receive a monetary award from a government-administered whistleblower award program for providing information to a government agency.
Provisions providing for liquidated damages in the event of a breach where those provisions are clearly disproportionate to the anticipated loss to the respondent of a breach, the potential liquidated damages would exceed the relief provided to the employee, or whether, owing to the employee’s position and/or wages, he or she would be unable to pay the proposed amount in the event of a breach.

When OSHA encounters these types of provisions, it will ask the parties to remove those provisions and/or prominently place the following statement in the settlement agreement: “Nothing in this Agreement is intended to or shall prevent, impede or interfere with the complainant’s non-waivable right, without prior notice to Respondent, to provide information to the government, participate in investigations, file a complaint, testify in any future proceedings regarding Respondent’s past or future conduct, or engage in any future activities protected under the whistleblower statutes administered by OSHA, or to receive and fully retain a monetary award from a government-administered whistleblower award program for providing information directly to a government agency.”

ARTICLE BY Shennan Harris of Squire Patton Boggs (US) LLP

OSHA Issues Special Zika Guidance to Employers

The Occupational Safety and Health Administration has issued “interim guidance” to provide employers and workers information and advice on preventing occupational exposure to the mosquito-borne Zika virus.

The guidance’s recommended actions (Control & Prevention) for employers and general outdoor workers include the following:

Employers should inform workers about their risks of exposure.
Employers should provide workers insect repellants and encourage their use. Workers should use the repellants.
Employers should provide workers with clothing that covers their hands, arms, legs, and other exposed skin and encourage them to wear the clothing. They also should consider providing workers with hats with mosquito netting that covers the neck and face. Workers should wear the provided clothing, as well as socks that cover the ankles and lower legs.
In warm weather, employers should encourage workers to wear lightweight, loose-fitting clothing, which provides a barrier to mosquitos. Workers should wear this type of clothing.
Employers and workers should eliminate sources of standing water (e.g., tires, buckets, cans, bottles, and barrels), which are considered mosquito breeding areas. Employers should train workers to recognize the importance of getting rid of these breeding areas at worksites.
If requested, employers should consider reassigning to indoor tasks any female worker who indicates she is pregnant or may become pregnant, as well as any male worker who has a sexual partner who is pregnant or may become pregnant. Workers in these circumstances should talk to their supervisors about outdoor work assignments.
Workers should seek medical attention “promptly” if symptoms from infection develop.

Employers and workers in healthcare and laboratory settings are advised to follow good infection control and biosafety practices (including universal precautions) as appropriate and specific biosafety guidance from the Centers for Disease Control and Prevention for working with the Zika virus in the laboratory.

OSHA also noted that mosquito control workers may require additional precautions — more protective clothing and enhanced skin protection — beyond those recommended for general outdoor workers. Workers who mix, load, apply, or perform other tasks involving wide-area (or area) insecticides may need additional protection to prevent or reduce exposure to hazardous chemicals. When applying insecticides, these workers may require respirators, worn in accordance with OSHA’s respirator standard.

For employers of workers with suspected or confirmed Zika virus, OSHA recommends “general guidance.” This includes making certain supervisors and potentially exposed workers know about Zika symptoms, training workers to receive immediate medical attention after suspected exposure, and considering options for providing sick leave during the infectious period.

Employers with workers who travel to or through Zika-affected areas, such as travel industry employees, airline crews, and cruise line workers, the agency recommends following certain “precautions” outlined by the CDC, including flexible travel and leave policies and delaying travel to Zika-affected areas.

ARTICLE BY Tressi L. Cordaro of Jackson Lewis P.C.

Increased Penalties for Immigration-Related Violations

The U.S. Department of Justice has issued a new rule increasing penalties against employers for various immigration-related violations. The new penalty structure applies to civil penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015.

Given the significant increase in penalties for immigration-related violations, employers should use particular care when dealing with I-9 form completion and other immigration-related employment processes and practices. We recommend that all employers perform an annual internal I-9 audit and consider periodic I-9 audits by third parties. Please refer to our prior alert as guidance when performing internal I-9 audits.

The penalty structure for first violations is set forth below. Increased penalties for repeat violations are also in effect.

New and Old Penalty Comparison

Type of Violation	Old Penalty Structure	New Penalty Structure
I-9 Verification Paperwork	$110 – $1,110	$216 – $2,156
Unlawful Employment of Unauthorized Workers	$375 – $3,200	$539 – $4,313
Unfair Employment Practices (Includes Discrimination)	$375 – $445	$3,200 – $3,563
Unfair Employment Practices (Document Abuse)	$110 – $1,100	$178 – $1,782
H-1B Violations (Includes Filing Fees Paid by Employee, LCA Public Access File Violations)	Maximum $1,000	Maximum $1,782
H-1B Violations (Includes Discrimination, Willful Failure Pertaining to Wages/Working Conditions)	Maximum $5,000	Maximum $7,251
H-1B Violations (Includes Certain Displacement of U.S. Workers)	Maximum $35,000	Maximum $50,758
H-2B Violations (Includes Failure to Pay Wages, Unlawful Termination)	Maximum $10,000	Maximum $11,940

ARTICLE BY Kelly M. Fortier, José A. Olivieri & Kelly R. Rourke of Michael Best & Friedrich LLP

California Will Resume Enforcement of The Requirement To Electronically Submit Certified Payroll Records

On July 20, 2016, California Department of Industrial Relations (“DIR”) issued a press release stating DIR enforcement of a contractor and subcontractor’s requirement to submit Certified Payroll Records (“CPRs”) using DIR’s online system will resume on August 1. DIR clarified that the requirement to keep CPRs has not changed. Previously, DIR suspended enforcement of filing CPRs electronically because of problems with the system and improvements. However, employers should have continued to maintain CPRs and the ability to file them electronically was operational. The key difference is now DIR will enforce the filing requirement effective August 1^st. See press release

ARTICLE BY Jonathan A. Siegel of Jackson Lewis P.C.

EEOC Revises Its Proposal To Collect Pay Data Through EEO-1 Report

On July 13, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) announced that it has revised its proposal to collect pay data from employers through the Employer Information Report (EEO-1). In response to over 300 comments received during an initial public comment period earlier this year, the EEOC is now proposing to push back the due date for the first EEO-1 report with pay data from September 30, 2017 to March 31, 2018. That new deadline would allow employers to use existing W-2 pay information calculated for the previous calendar year. The public now has a new 30-day comment period in which to submit comments on the revised proposal.

Purpose of EEOC’s Pay Data Rule

The EEOC’s proposed rule would require larger employers to report the number of employees by race, gender, and ethnicity that are paid within each of 12 designated pay bands. This is the latest in numerous attempts by the EEOC and the Office of Federal Contract Compliance Programs (OFCCP) to collect pay information to identify pay disparities across industries and occupational categories. These federal agencies plan to use the pay data “to assess complaints of discrimination, focus agency investigations, and identify existing pay disparities that may warrant further examination.”

Employers Covered By The Proposed Pay Data Rule

The reporting of pay data on the revised EEO-1 would apply to employers with 100 or more employees, including federal contractors. Federal contractors with 50-99 employees would still be required to file an EEO-1 report providing employee sex, race, and ethnicity by job category, as is currently required, but would not be required to report pay data. Employers not meeting either of those thresholds would not be covered by the new pay data rule.

Pay Bands For Proposed EEO-1 Reporting

Under the EEOC’s pay data proposal, employers would collect W-2 income and hours-worked data within twelve distinct pay bands for each job category. Under its revised proposed rule, employers then would report the number of employees whose W-2 earnings for the prior twelve-month period fell within each pay band.

The proposed pay bands are based on those used by the Bureau of Labor Statistics in the Occupation Employment Statistics survey:

(1) $19,239 and under;

(2) $19,240 – $24,439;

(3) $24,440 – $30,679;

(4) $30,680 – $38,999;

(5) $39,000 – $49,919;

(6) $49,920 – $62,919;

(7) $62,920 – $80,079;

(8) $80,080 – $101,919;

(9) $101,920 – $128,959;

(10) $128,960 – $163,799;

(11) $163,800 – $207,999; and

(12) $208,000 and over.

Stay Tuned For Final Developments

The EEOC’s announcement of the revised pay data reporting rule opens a new 30-day comment period, providing a second chance for the public to submit comments on the proposal through August 15, 2016. The EEOC is also formally submitting the proposed EEO-1 revisions to the Office of Management and Budget for consideration and decision. We will keep you posted on any further developments.

Please note that employers required to file an EEO-1 report for 2016 must do so by the normal September 30, 2016 filing date using the currently approved EEO-1 and must continue to use the July 1st through September 30th workforce snapshot period for that report.

ARTICLE BY Cecilia M. Romero of Holland & Hart LLP

Tag: employers

Election Day is Coming – What are Your Obligations as Employer?

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Employers Must Continually Navigate a Minimum Wage Patchwork Across America

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Pet Policies at Work: Considerations for Employers

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