The U.S. Supreme Court ruled unanimously this week that in certain cases federal courts may hear discrimination claims under Title VII of the Civil Rights Act even if the claims were not brought first to the Equal Employment Opportunity Commission or a state administrative agency.

Added Allegations

Employees still generally must bring Title VII discrimination claims to the EEOC or a state agency before going to court.  However, if an employee adds another discrimination claim in the court proceeding (that was not included in the charge when it was filed with the administrative agency), and the employer does not object to the addition at that time of the addition, then the employer cannot later assert the defense that the additional claim must also go through the EEOC or administrative agency.

The Case

In Fort Bend County v. Davis, a former worker, Lois Davis, had filed a retaliation and sex bias charge with Texas’ EEOC.  In the margin of a supplemental form to the original charge, Davis had written “religion.”  The employer, Fort Bend County, argued that the additional charge was not valid because it had not been reviewed by the EEOC with the original charge prior to Davis suing Fort Bend in court.  The Supreme Court upheld the Fifth Circuit’s ruling that Fort Bend lost the defense that Davis did not file the additional claim with the EEOC because it waited too long to object.

What it Means for Employers

Employers should pay close attention to complaints to be sure they match up with administrative charges filed.  If they do not raise objections in their answer to the complaint or in a motion to dismiss.  As a result, employers could risk losing the defense that an employee has an obligation to exhaust administrative remedies.  It is not unusual for an employee to add additional claims after a charge has been filed.  The ruling puts the burden on the employer to closely review the administrative charge filed by the employer.

Stay tuned for more labor and employment news!

There are a number of major legislative proposals being considered by the Connecticut General Assembly that could have a significant impact on ALL employers in Connecticut. One such proposal – increasing the minimum wage to $15 per hour by 2023 – has been passed by the General Assembly and is expected to be signed by the Governor. Other proposals that are pending:

Enacting Paid FMLA
Legalizing Recreational Marijuana
Strengthening Sexual Harassment and Discrimination Laws
Creating Restrictions on Captive Audience Speeches
Establishing Civil Rights Division of the Attorney General’s Office

In addition, the federal Department of Labor has proposed revisions to the federal overtime rules that would increase the salary for employees to be considered exempt.

It is crucial for both business-owners and human resources professionals to understand what these developments could mean for their businesses and how to prepare for them.

We invite you to join us for a Labor and Employment Seminar on these topics on Thursday, June 20th at the Hilton Garden Inn Wallingford/Meriden. We will discuss what passed (and perhaps what didn’t), and what employers should be doing now to prepare. We will also be joined by State Representative, Stephanie Cummings, who will provide us with an insider’s look at how this legislative session unfolded.

Registration and breakfast will be at 8:30 a.m. and the seminar will begin promptly at 9:00 a.m.

Reminder: this session is included in the Human Resources Roundtable Breakfast Series.

Click here to register!

Last Friday, the Connecticut Senate voted to approve House Bill 5004 titled “An Act Increasing The Minimum Wage”, which was approved by the Connecticut House of Representatives. As the title suggests, this bill would increase the minimum wage to $15 by year 2023. However, there are several other important changes. It is expected that the Governor will sign this bill into law.

Yearly Increases

The bill would increase the minimum wage gradually from $10.10 to $15 as follows:

  • $11 on October 1, 2019
  • $12 on September 1, 2020
  • $13 on August 1, 2021
  • $14 on July 1, 2022
  • $15 on June 1, 2023

Thereafter, beginning January 1, 2024, the bill would create annual minimum wage adjustments based on the percentage change in the employment cost index (or its successor index) as calculated by the United States Department of Labor. Any of the minimum wage increases, however, could be suspended by the Connecticut Labor Commissioner if there are two consecutive quarters of negative growth in the state’s gross domestic product.

Wages For Employees Under The Age of 18

The bill would require that all persons under the age of 18 years (except for emancipated minors) be paid not less than the greater of $10.10 or 85 percent of the minimum wage for the first 90 days of employment and then the current minimum wage thereafter.

Beginning October 1, 2020, the bill would prohibit employers from taking action to displace an employee for the purpose of hiring persons under the age of 18 at a wage below the minimum wage. Displacing an employee means “partial displacement of an employee, such as reducing the employee’s hours, wages or employment benefits.”

Tip Credit

The bill would maintain tip credits for bartenders and hotel and restaurant staff. Employers would still be able to pay $6.38 to hotel and restaurant staff and $8.23 to bartenders so long as the employees’ tips make up the difference between their reduced wage and the minimum wage.

We will continue you to keep you updated on this bill and any changes before it is signed into law.

Democratic leaders are at it again, pushing a bill that would topple the United States Supreme Court 2018 decision in Epic Systems v. Lewis. In effect, the proposed bill would bar employers from requiring class action waivers and mandatory arbitration, thus allow workers to bring employment claims as a group as well as bring claims to court.

The Restoring Justice for Workers Act was introduced in the House of Representatives by Rep. Jerrold Nadler, D-New York (who also sponsored a similar bill in early March), and Rep. Bobby Scott, D-Virginia, and in the Senate by Sen. Patty Murray, D-Washington. The purpose of the bill is “to prohibit forced arbitration in employment disputes” among other things.

Epic Systems decided that employees may be required to waive their rights to bring an employment claim as a class. The proposed bill argues that mandatory arbitration of individual claims prevents employees from protecting their rights, since a class action can be more affordable and less intimidating. The bill would also amend the National Labor Relations Act to prohibit employers from stopping employees from bringing class actions in employment claims, whether in agreements or practices.

Proponents for the proposed bill believe that arbitration clauses are often overlooked in employment agreements and protect the employer and abusers, while dissuading victims from coming forward.

Read more about other recent proposed bills seeking to reverse the Epic decision in our Carmody@Work Blog.

On May 3, 2019, the Equal Employment Opportunity Commission (“EEOC”) announced that it would collect EEO-1 Component 2 pay data from required EEO-1 filers (“Filers”) for the calendar years 2017 and 2018 by September 30, 2019.

This announcement was a result of a federal district court’s decision in a case titled National Women’s Law Center, et al. v. Office of Management and Budget, et al..

By way of background, in September 2016, the EEOC proposed expanding the EEO-1 reporting to include compensation data, called “Component 2” data. In August 2017, the Office of Management and Budget (“OMB”) stayed (or paused) the EEOC’s obligation to collect Component 2 pay data. In November 2017, the National Women’s Law Center and other plaintiffs sued to challenge the OMB’s decision to stay.

In April 2019, the federal district court ruled in favor of the plaintiffs and ordered the EEOC to (1) select two years for which it would collect the Component 2 pay data and (2) to issue a Press Release announcing its obligation to collect data and the two years for which it would collect. Thus, the EEOC made its announcement on May 3.

What does this mean for us?

This announcement only applies to required Filers, which are:

  • private employers with 100 or more employees; or
  • private employers with fewer than 100 employees if that employer is owned by or affiliated with a company that employees over 100 employees; or
  • federal contractors with 50 or more employees that are not otherwise exempt.

What do I have to file?

If you are a Filer, you are required to report:

  • annual compensation data based on Box 1 of the Form W-2 for all employees by race, ethnicity and sex and within the 12 proposed pay bands for the 10 EEO-1 job categories for the calendar years 2017 and 2018.
  • all hours worked for the same categories for the same calendar years.

It should be noted that the United States Department of Justice filed an appeal of the federal district court’s decision on May 3. Despite the appeal, the EEOC will move forward with collecting the data. We will keep you updated of any developments.

The 2019 Human Resources Roundtable Breakfast Series begins on Tuesday, May 22nd!

Topic: “Your Leave of Absence Toolkit: We will review policies, request forms and form letters to help HR professionals manage employee leaves of absences.

For more information and to register, please click here.

The U.S. Supreme Court will hear three cases in the next term to determine whether Title VII of the Civil Rights Act protects employees from workplace discrimination based on sexual orientation, gender identity or sex stereotyping.

Federal courts have been divided on whether Title VII protects employees from sex discrimination based on sexual orientation or gender identity.  The Supreme Court will hear two of the cases together in order to resolve a circuit split on the issue. One of the cases, from New York, ruled that Title VII prohibits discrimination on the basis of sexual orientation. The other case, from Georgia, ruled the opposite, namely that Title VII does not apply to discrimination based on sexual orientation. The third case, from Michigan, found that Title VII protects an employee from sexual discrimination on the basis of gender identity or expression.

Connecticut law already provides some of the most robust protections against discrimination based on sexual orientation and gender identity.  However, the Supreme Court’s decision will likely provide a definitive answer as to whether such protections also arise under federal law. In addition, the Court’s decision could have an impact on the next Presidential campaign and other states’ discrimination laws.

Stay tuned as we track the latest developments in labor and employment law!

Employment discrimination charges are at a twelve-year low, the U.S. Equal Employment Opportunity Commission (“EEOC”) reported last week. The EEOC released data for charges of workplace discrimination in fiscal year 2018. However, the number of sexual harassment charges increased, likely due to the #MeToo movement which has focused on publicizing and eradicating sexual harassment in the workplace.

The Numbers

The EEOC is the first stop for an employee to bring a charge against an employer raising employment discrimination, harassment or retaliation claims in violation of a variety of federal laws. In 2018, the EEOC took in 76,418 charges (8,000 less than 2017). Sexual harassment claims typically make up nearly one third of all sex discrimination charges with the EEOC. The recent data shows sexual harassment complaints have increased by 13.6 percent from last year, a likely effect of the #MeToo movement.

The Reasons

As the unemployment rate is low and worker demand is up, there are fewer job rejections and employee terminations for employees to contest. Additionally, with the recent public outcry against workplace discrimination, employers have taken steps to educate its employees in awareness and prevention of such activity. Employer education remains one of the most important aspects of reducing and preventing workplace discrimination. Contact us to provide workplace discrimination prevention for your employees!

The American Bar Association (“ABA”) published an article written by Alan H. Bowie, Jr. titled Updates from the NLRB and the Office of The General Counsel in its 2019 Section of Labor and Employment Law Winter Newsletter.  His article summarizes updates from the National Labor Relations Board (“NLRB”) and the Office of NLRB General Counsel given at the ABA’s 12th Annual Labor and Employment Law Conference.

NLRB updates were given by current Board Members Chairman Jonathan Ring, Lauren McFerran, Marvin Kaplan, and William Emanuel.  The Board Members covered topics ranging from the use of rulemaking to establish the current board’s position on laws, internal ethics and the recusal process, and the use of alternative dispute resolution to resolve NLRB cases more efficiently.  As we previously reported, the issue of Board Member recusals became a hot topic after the Board was required to vacate the Hy-Brand decision.

The updates from the Office of the NLRB General Counsel were given by Assistant General Counsel for the NLRB Alice Stock.  Attorney Stock discussed the Office’s first-year case statistics under new General Counsel Peter Robb, the General Counsel’s approach to case handling, and his position on certain NLRB laws.

Overall, the respective updates indicated that the NLRB and Office of the General Counsel are looking to prioritize efficiency and restore “balance” to the agency and the laws.  For the full article, click here.

The Federal Department of Labor (“DOL”) recently proposed two new rules addressing joint employer status and overtime pay calculation under the Fair Labor Standards Act (“FLSA”). These proposals are significant because the underlying regulations had not been updated in decades.

Joint Employer Status

On April 1, 2019, the DOL proposed the new rule for determining joint employer status. The proposed rule would establish a four-factor test that would consider whether the potential joint employer actually exercises power to:

  • hire or fire the employee;
  • supervise and control the employee’s work schedules or conditions of employment;
  • determine the employee’s rate and method of payment; and
  • maintain the employee’s employment records.

The proposed rule also includes 9 examples analyzing potential joint employer relationships, which will be open to the public for comment.

This proposed rule would be the first major revision of the joint employer regulations since 1958. In addition, it would cement the current administration’s position on joint employer status.  Recall that the DOL under President Obama issued guidance in 2016 that scrutinized joint employer relationships. In 2017, the current administration rescinded that guidance. Thus, finalizing this new rule would completely overturn the previous administration’s rule and reinforce the new administration’s position.

Overtime Pay Calculation

Last week, the DOL proposed another new rule to clarify and update the regular rate requirements for purposes of calculating overtime under the FLSA. The FLSA generally requires that employers pay overtime of at least one and one-half times the regular rate for hours worked in excess of 40 hours per workweek. Under the current rules, employers are discouraged from offering more perks (e.g., gym memberships or bonuses) because it may be unclear whether those perks must be included in the calculation of an employee’s regular rate of pay.

The proposed rule clarifies whether certain kinds of perks, benefits, or other miscellaneous items must be included in the employee’s regular rate. For instance, the rule clarifies that the following perks are excluded from the employee’s regular rate of pay:

  • the cost of providing wellness programs, onsite specialist treatment, gym access and fitness classes, and employee discounts;
  • payments for unused paid leave, including sick leave;
  • reimbursed expenses, even if not incurred “solely” for the employer’s benefit;
  • reimbursed travel expenses that do not exceed the maximum travel reimbursement permitted under the Federal Travel Regulation System regulations and that satisfy other regulatory requirements;
  • discretionary bonuses;
  • Benefit plans, including accident, unemployment, and legal services; and
  • Tuition programs, such as reimbursement programs or repayment of educational debt.

The overtime calculation rule has been submitted for public comment. Click this link to submit a comment. The joint employer status rule is being finalized and will be published for public comment soon. We will keep you updated on the developments. Please feel free to contact us if you have any questions.