Author: Brett Holubeck

What is an EEO-1 Report?

Published by Brett Holubeck on March 8, 2021

Picture of people pointing at computer screen to show employees collaborating on completing the EEO-1 report. — Photo by John Schnobrich on Unsplash

The Equal Employment Opportunity Commission has moved back the deadline to file the Employer Information Report EEO-1 (“EEO-1 Report”) to April 2021 for the 2019 and 2020 EEO-1 Component 1 Data Collection. In 2018, approximately 73,400 employers representing 56.1 million employees filed the mandatory report.

Now is the time for companies to get the information for this report together, which leads to the inevitable question…

What is the EEO-1 Report?

The EEO-1 Report is a mandatory survey for employers that meet certain requirements. Employers that meet the requirements must submit data regarding their employees (workforce composition) by sex, race/ethnicity, and job category. The EEOC uses this generalized data for enforcement, assessment of employers, and research.

Employers that must submit information include:

Employers that have 100 or more employees;
Companies that are affiliated or subsidiaries of a company with more than 100 employees in total;
Any organization that “serves as a depository of Government funds in any amount, or is a financial institution which is an issuing and paying agent for U.S. Savings Bonds and Notes;” or
Federal contractors and subcontractors with at least 50 employees that have a contract worth more than $50,000. There are also some very specific exemptions for certain federal contractors which you can read about here. As a reminder, contractors also have Affirmative Action Plan requirements which you can read about here.

If you are required to file a report, then the next item that you need to review are the types of reports you will be asked to file.

What are the Types of Reports?

Employers are generally divided into two categories.

“Single establishment employers” (they have one business and operate in one location) file a single Type 1 report for their company.
Employers that have more than one establishment are “multi-establishment” employers and must file the following reports:
- A company headquarters report (Type 3);
- A report for each establishment that has 50 or more employees (Type 4);
- A list of establishments with less than 50 employees with the required information categorizing employees by race, gender, and job category (Type 6). Rather than file a list with the required information employers, have the option to file a separate report for each of these establishments (Type 8);
- One consolidated report (Type 2) which will be auto-generated.

What Information is Needed for the EEO-1 Report?

All employers should make it a practice to gather self-identification data for new employees. At the beginning of employment, employers often collect this information through a voluntary EEO-1 survey. In this survey, employees identify their race(s) and gender. Employees that refuse to complete the information can have their race and gender determined by their employer visually determining these characteristics solely for the purposes of the EEO-1 report.

Let’s break these categories down:

Racial Categories

The race and ethnic categories are:

Hispanic or Latino;
White (Not Hispanic or Latino);
Black or African American (Not Hispanic or Latino);
Native Hawaiian or other Pacific Islander;
Asian;
American Indian or Alaskan Native;
Two or more races

Gender Categories

The gender categories in the past have been limited to male or female. There have been calls for a non-binary and/or other gender option, but the EEOC has not added this option in past reports, and as of this article it has not released guidance in this area.

In the 2018 EEO-1 report, the EEOC released a FAQ, which is no longer available on the EEOC website, that suggested that employers should use the comment box to report data concerning non-binary employees and employees that do not identify as male or female.

Job Categories

Determining the job category is tricky. There is a seemingly endless list of jobs and some may arguably fit into more than one category depending on their duties, training, and level of responsibility. If you need help classifying your workers, then you can review the “Job Classification Guide” available on the EEOC website.

The job categories are:

● Executive/Senior Level Officials and Managers- These are the individuals that are responsible for planning and formulating the strategies and overall direction the company takes. Examples are the CEO, CFO, Chief Human Resources Officer, and other executive positions.

● First/Mid-Level Officials and Managers- These individuals serve as managers and may oversee the delivery of products and services, lead portions of the organization, and conduct other managerial functions. Examples of individuals in this category are vice presidents, treasurers, regional controllers, and operations managers.

● Professionals- As the name implies, these are jobs that require a professional degree and/or license. Jobs within this category would include accountants, engineers, lawyers, doctors, and pilots.

● Technicians- Technicians have specific technical skills that they need to perform their jobs. Examples include engineering technicians, lab technicians, dental hygienists, licensed vocational nurses, and emergency medical technicians.

● Sales Workers- Sales include any job where sales are involved; it is more than just salespersons. This includes cashiers, travel agents, telemarketers, insurance salespersons, and product promoters.

● Administrative Support Workers – These are typically office workers that are not professionals. This includes billing clerks, bookkeepers, postal service clerks, and data entry clerks.

● Craft Workers- Craft workers have a specific skill to do their jobs. This includes carpenters, iron and steel workers, oil/gas/mining operators, and others.

● Operatives- Operatives require minimal training (typically only a few months) to perform their jobs. Examples include meat processing workers, forklift drivers, and engine and other machine assemblers.

● Laborers and Helpers- Laborers require very limited training. Examples include: loggers, material movers (hand), and other helpers.

● Service Workers- Service workers work in the service sector of the economy. Examples include fire fighters, police officers, chefs, waiters/waitresses, janitors, and childcare workers.

Additional Needed Information:

Employers also need the following information to complete the report:

Company name, address and contact information;
Employer Identification Number;
Total number of employees by job category, gender, and race/ethnicity;
Prior reporting year information;
Payroll period date (typically one day in October-December of the year from when the data was to be collected). Choosing a date where an employer has less than 100 employees, which would mean that some employers would not need to file a report, is a legitimate choice.

Conclusion

Employers need to start gathering this information immediately to submit the report through the EEOC’s online portal when it opens in April. Compiling the data and submitting it for the two-year period can be time consuming.

Accurately reporting the data is even more important this year since reporting pay data may again be required (as it was in the 2018 report). Vice President Harris supports adding pay data to the EEO-1 requirement and this was added under the Obama Administration. The pay data may eventually be used by the EEOC and others as evidence that a company treats employees with a specific protected characteristic (i.e., race or gender) differently than other individuals in the same job category.

This year is a chance to look for possible pay disparities among these categories of employees. Employers should consider conducting a pay audit in addition to filing their EEO-1 reports, regardless of the official documentation required.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

2021 Labor and Employment Predictions

Published by Brett Holubeck on February 4, 2021

Picture of 2021 made from masks to represent my new labor and employment law predictions, which will revolve around COVID. — Photo by Ibrahim Boran on Unsplash

It is a new year! Will this be a year when we overcome our struggles and defeat the coronavirus? Will we be living in some sort of Groundhog Day where 2021 looks a lot like 2020? Will it be a mixture of both? Unfortunately, Dr. Fauci said at the end of last year that we are probably looking at the end of spring to early fall for returning to normal I believe that the timeline could be expanded further.

With that being said, here are my labor and employment predictions for 2021. One quick note, I am not including anything about the labor and employment law legislative agenda of the Biden administration in this post. It will be part of a separate post.

The Supreme Court Will Rule on the NCAA and Potential Antitrust Violations and Will End Special Access that Unions have to Agricultural Employees

There are two different Supreme Court cases that may impact labor and employment law next year (at least so far).

The first is:

National Collegiate Athletic Association v. Alston

This case concerns “whether the National Collegiate Athletic Association (NCAA)’s prohibition on compensation for college athletes violates federal antitrust laws.” Yes, technically this is an antitrust case and not a labor and employment case. It is not clear how the Court will rule, but this will be a big decision as it could eventually result in student athletes being paid after subsequent litigation concerning the Fair Labor Standards Act and/or receiving some portion of the money earned from their likeness. I believe Roberts and Gorsuch will be the most important justices in the case. There is a good overview of Gorsuch’s antitrust views here. I believe it will be a 5-4 or 6-3 decision. I’m inclined to believe that the Court will find an antitrust violation, but I would not be surprised if the decision went the other way.

The second case is:

Cedar Point Nursery v. Hassid

The question presented is “whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment.” That does not sound like a labor law case at first blush, but it actually deals with a union’s right to enter the property of agricultural employers in California. Essentially, unions are allowed access to the property of agricultural employers for up to three hours a day for 120 days a year. In most nonunionized workplaces, union organizers are not allowed on the private property of the company (as long as the company is consistent and does not allow other solicitors on their property). I believe that the Court will find that this is a taking and will no longer permit the union to have special access, especially since technology has made organizing employees much easier.

Immigration Will Become Easier for Employment-Based Immigrants

Fairness for High-Skilled Immigrants Act of 2019

The new administration is probably one of the best chances for the US to eliminate the country cap limit for green cards. The cap limit has caused immigrants of Indian origin to wait a decade or more for their green cards and has caused years long delays for Chinese immigrants and others as well. Removing it is a good step toward ensuring that all immigrants are treated fairly and is likely to happen in the new administration.

The Percentage Denial for Various Employment Visas Will Go Down.

The number of employment visa denials has been especially high under the Trump administration (See information about H-1B visas here). The Biden administration will increase visa approvals.

ICE raids are over and Notices of Inspection Will Decrease.

The number of ICE raids and Notices of Inspection (I-9 audits) under the Trump administration will likely decrease under the Biden administration.

You can read more about ICE raids here and Notices of Inspection here.

Pathway to Status and Citizenship

There will also be an attempt to form a pathway to citizenship and some form of protected status for a number of undocumented or unauthorized immigrants (See Biden’s plan here).

Remote Work Will Continue to Grow

This one is definitely cheating. It feels a bit like predicting who won the Super Bowl last year. However, the world changed so much over this past year that this needs to be addressed. Remote work is here to stay. You can read more about addressing the employment law issues associated with remote work in my previous article.

What are going to be the long term effects of this from a labor and employment law perspective:

● An increased need to protect trade secrets and other data

● Better management systems for employees that may not be seen every day

● More worker’s comp claims from injuries that occur at home

● Issues with tracking employee time from home for hourly employees and those that are not exempt from overtime (see more about the overtime exemptions here).

● More lawsuits and claims revolving around reimbursing employees for equipment

● Issues with completing the I-9 and other paperwork in a remote setting. Eventually, ICE will no longer permit I-9’s to be done remotely. You can read more about the paperwork that must be completed to hire new employees here.

● Issues with following local laws, safety regulations, restrictions on working from home, proper tax withholding for localities and a number of other issues based on the local laws.

States are fighting over the taxes of remote employees and companies are considering paying employees different amounts based on where they live. These disputes will be amplified this year as millions of people have moved as a result of the pandemic.

COVID-19 Issues will Dominate 2021

Vaccine Accommodations Will be a Major Issue for Employers

There will be a lot of people that do not want to take the Covid-19 vaccine. A Pew Research poll found that 60% of people would definitely or probably take the vaccine if it were available, which is up from 51% in September. Dr. Fauci estimates that 75% to 85% of the population need to get the vaccine to stop the spread of the virus.

There are going to be a lot of workplaces wondering whether you can require vaccines. The EEOC has already answered this question. Yes, you can, subject to accommodations for employees based on a disability or religion (I would also add that you should accommodate pregnant or nursing mothers as well).

Companies will deal with a number of requests for an accommodation based on disability or religion. You can read my past post on accommodations for disabilities here.

Some of these requests will be easy to accommodate. For example, Catholics are advised to avoid the AstraZeneca vaccine due to its closer link to human cell tissue taken from abortion than other vaccine alternatives such as the Pfizer and Moderna vaccines. A Catholic may receive the AstraZeneca vaccine if no other vaccine is available. Many companies offering vaccines may wish to provide an alternative to the AstraZeneca vaccine for Catholics if possible.

For many Muslims, the use of pork gelatin in other (non-COVID) vaccines may create a concern that the COVID-19 vaccine is not halal. Newsweek has looked into the claim of whether the Pfizer vaccine is not halal and found those claims to be false. However, this may be something that Muslim employees have concerns about and companies should accommodate those employees that have concerns.

Many employees with disabilities will not be able to take the vaccine or a certain vaccine. Employers will need to work with these individuals to determine the appropriate accommodation. Some employees may be able to work from home until a combination of vaccinations and herd immunity is reached. Others may need to wear masks and other PPE throughout this process.

More Local Safety Rules Will Be Enacted

I suspect that more states will enact local safety rules as the pandemic continues to unfold. We can also expect OSHA to conduct more inspections and issue new regulations.

Some Form of COVID Regulations Will Persist When the Pandemic Ends

Many states that have adopted standards around workplace safety or have hired a number of people to conduct safety inspections and ensure compliance with virus-related guidance will continue to have these individuals work for the government and enforce similar or other rules as the pandemic winds down and ends. There will be increased enforcement of state and local laws and many more lawsuits around those issues moving forward.

The Economy Will Grow in Importance

The economy is going to have a profound impact on a wide variety of circumstances involving labor and employment law this year and into the future. There are a number of interesting factors that will impact everyone this year.

We have not been in a major recession since the Great Recession, which lasted one and a half years and ended in June 2009. While we are not technically in a recession, we are close to a record number of people who are out of work, and we seem to be on the cusp of a downturn as businesses continue to struggle.
According to the Economic Policy Institute, 25.7 million workers in the US remain officially unemployed, out of work as a result of the pandemic, or have had a reduction in their hours or pay.
The recovery may be uneven and it seems that blue states may even be suffering a harsher recession than red states. There will be some kind of uneven recovery as there normally is with all recessions. This may cause long term changes in employment in the various states and may spark a new debate about spending, the effect of lockdowns, and increased regulations. The work from home revolution may also cause long term shifts in populations from states with a high cost of living like New York and California to lower cost of living states like Texas and Florida.
Globalization and deglobalization. One unique shared trait between Donald Trump and Joe Biden is their “Buy American” agenda. We will continue to see the new administration push for supporting American companies and a decreased emphasis on free trade.
There will be more stimulus. There is already talk of a $1.9 trillion bailout We will see how this plays out, but it is practically certain that it will have dramatic impacts on COVID’s effect on the economy.

Mental Health Issues Will Continue to Grow

I know that this is a repeat (and I’m breaking my rules by repeating a prediction from last year) but this is worth mentioning again. We are truly entering a mental health crisis. I went over this in detail in my last post reviewing my predictions from last year , but the crisis is going to continue. What does that mean for the workplace and labor and employment law?

There will be increased requests for accommodation due to disabilities associated with mental health. There will be less productivity. There will be more stress and tension in the workplace. More employees will take time off to recover and try to handle their stress. There will be an increased need for therapy and other treatment. There will be more drug and alcohol abuse.

Employers should do all that they can to help employees recover and to treat their mental health conditions. The employers that do this will see better productivity and morale from their employees.

Let’s also hope that this past year and the length of this crisis encourages everyone better to understand the struggles of people that deal with mental health just a bit more. Hopefully, the stigma of having a mental health issue is less in 2021 than it was in 2020 and that workplaces will do their best to support people with mental health issues.

Conclusion

There will be a ton of changes this year as a result of the pandemic and a change in administration. Employers will need to continue to adapt.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

2020 Labor & Employment Law Predictions Reviewed

Published by Brett Holubeck on January 4, 2021

Image of text that says Happy New Year to symbolize the review of my 2020 Labor and Employment Law Predictions — Photo by Annie Spratt on Unsplash

It is that time of the year again! The time to review my 2020 labor and employment law predictions from last year to see how well they did or did not hold up. This year’s predictions are a special kind of train wreck with how COVID-19 totally changed the outcome of many of all of these predictions.

Below are my 2020 labor and employment law predictions and my review of them.

1. Minimum Wage Increases Will Occur in a Number of States and Ballot Initiatives Will Be Undertaken to Get Them on the Ballot in Additional States

Florida, as I predicted, passed the $15 minimum wage ballot initiative with 60.82% of voters voting to pass the measure and 39.18% voting to reject the measure. A 60% supermajority was needed for the bill to pass.

Virginia passed a minimum wage law and the increase is set to take effect on May 1, 2021. Originally, the increase was to occur on January 1.

The other ballot initiatives for minimum wage increases or minimum wage increase related issues in Arizona, Idaho, and Missouri did not make it on the ballot.

This is something that we could see expanded into the Biden administration as he supports a $15 minimum wage. It will depend on the outcome of the senate races.

2. Retail Closures and Other Layoffs Continue to Remain High or Accelerate

This prediction turned out to be true, but not for the reasons that I initially thought. The surge in bankruptcies and layoffs is due overwhelmingly to the coronavirus pandemic, the lockdowns, and individuals voluntarily cutting back on their shopping and outings.

According to Retail Dive, over 29 major retailers have declared bankruptcy this year compared to only 17 from last year. In 2019, over 9,500 stores closed. There is not a final count yet for this year, however, it seems likely that this will be one of the worst years since the Great Recession and maybe even the Depression.

As a result of the pandemic, about 1 out of 3 restaurants are expected to close. Approximately 100,000 businesses that temporarily shut down are now out of business (note some of these businesses could have more than one location).

Contrary to the beliefs of many people, there has been a lot of lost capital and it will take years for the economy to recover to where it was at the end of 2019. In addition, 65% of Americans think the recovery will take more than a year, and the Congressional Budget Office puts the time to recover at one decade. We will be dealing with the financial impacts of COVID-19 for a long time.

3. Onboarding and Employee Retention Continues to Grow in Importance

Onboarding did become more important than in 2019, but not for the reasons that I initially stated. In 2019 unemployment was at record lows and median household income was up 6.8% from the prior year to $68,700. All of that changed this year as millions of people reported job losses. Onboarding is more important due to the remote nature of many workplaces, and the need to train new employees on practices regarding COVID-19 became crucial.

4. The Governmental Agencies Gear Up for the Election by Releasing a Lot of New Regulations Before the Election Happens

This one was an easy prediction. It happened when Obama finished his term and it happened under Trump.

Among the regulations that are being finalized are the Department of Labor’s rule on independent contractors. There are several others, but not all are related to labor and employment.

Whether these are overturned through the Congressional Review Act will be determined by the Senate elections in Georgia and who controls the Senate.

5. Candidates Push Their Election Agendas Which Will Give us a Peek into the Labor and Employment Landscape in 2021

This is obvious again. Rather than spending time on Trump’s agenda, which has advanced a lot over the last few years, let’s turn to Joe Biden since he will become the next president. He has outlined a lot of proposals on his campaign site:

Biden favors the PRO Act (see the full bill here), which will:

○ ban employers’ mandatory meetings with their employees, including captive audience meetings in which employees are forced to listen to anti-union rhetoric; and

○ reinstate and codify into law the Obama-Biden Administration’s “persuader rule” requiring employers to report not only information communicated to employees, but also the activities of third-party consultants who work behind the scenes to manage employers’ anti-union campaigns.

“He will ensure federal contracts only go to employers who sign neutrality agreements committing not to run anti-union campaigns.”

He supports card check so that if a majority of employees sign an authorization card, then they can form a union without an election.

End right-to-work laws that allow workers that don’t want to join a union the right to not be forced to join one. (read more about these here)

Permit intermittent strikes

Allow independent contractors to bargain collectively

Increase the minimum wage to $15

Eliminate non-compete clauses

End mandatory arbitration clauses

There will be a seismic shift in labor and employment law under Biden.

6. Union Elections and Organizing Increases this Year Especially in the Tech Sector

This is another prediction that came true. Kickstarter became one of the first tech unions this year. There has also been a spark in interest in unions within the tech sector due to the pandemic but some think that the unions have not done enough to organize this segment of the population.

7. More States Pass Employment Related Laws- Especially Variations of the Independent Contractor Law that California Adopted (the ABC Test)

This one did not come to be.

Governor Cuomo expressed support for the ABC test in January 2020, but the task force that would have examined the issue was ultimately scrapped because of the COVID-19 crisis. It does seem likely that they will get to it at some point in the future.

The closest it came to fruition was the election of Joe Biden, who supports the ABC test at the federal level.

As a reminder from my past post, the elements of the ABC test are:

The worker is free from control (they determine how to do the work),
The work is outside the usual business of the company, and
The worker is customarily engaged in an independently established trade occupation, or business.

It is difficult for many workers to meet all three elements.

8. Mental Health Issues in the Workplace Become More Important

This is the saddest prediction that came true. The coronavirus has affected everyone. It is probably one of the few events from the last 100 years that has affected practically every single person throughout the entire world.

Its effect on mental health is dramatic and tragic. During late June of 2020 a survey by the Centers for Disease Control showed that 40% of adults struggled with mental health and substance abuse; 10.7% of adults had thoughts of suicide compared to 4.3% in 2018; 25.5% of adults ages 18-24 considered suicide; and 13% of adults have started or increased substance abuse. We are a society in crisis. Workplaces need to address these issues to help their employees cope, which in turn will help employees to be better.

9. There will be a Ton of Issues Around Free Speech and the Workplace (i.e. It is an Election Year)

It was an election year and this was spot on.

According to a survey done at Zety , 83% of people talk about politics at work.

It is not just employees that have trouble avoiding political discussion (or getting in trouble when the discussion goes too far). One CEO emailed 10 million customers urging them to vote for Biden. Goodyear got a lot of backlash this year when it used MAGA hats as an example of items that are prohibited in the workplace. They clarified that this was an example of all items related to political speech (note that some political speech would invoke rights under the NLRA and would be protected).

There was a lot of controversy about politics in all aspects of life. In fact, according to a survey conducted for the American Psychological Association, 68% of adults indicated that the 2020 U.S. presidential election was a significant source of stress in their life.

10. The Cases Before the Supreme Court Put Increased Focus on Religion, Transgender Issues, and Sexual Orientation in the Workplace

As I mentioned in my past post, three of the Supreme Court cases last term were about religious issues.

There have been a few cases this year concerning religion, sexual orientation and the workplace (as a result of the Supreme Court’s 2019 Bostock v. Clayton decision that made discrimination based on sexual orientation and gender identity illegal under Title VII), but most of them have been overshadowed by COVID. Virginia enacted a law this year to make discrimination based on gender identity and sexual orientation illegal.

There are three cases before the Supreme Court around religious issues this term (Tanzin v. Tanvir, Fulton v. City of Philadelphia, and Uzuegbunam v. Preczewski) shows the tension and need for clarification around legal matters involving religion. None of these cases deal directly with labor and employment law, but they may shed light on how the court will rule on future cases that do.

11. States Continue to Implement Restrictions on Noncompetition Agreements

This one barely came true. One state (Virginia) enacted new laws concerning non-competes this year.

The law will prohibit non-competes for employees whose average weekly wages are less than the average weekly wages for employees in Virginia. It applies to independent contractors as well, but it does not apply to employees that earn the whole or a majority of their compensation through commissions, bonuses, or other incentives.

The Washington D.C. Council has also voted to ban non-competes except for physicians. It is not clear yet whether the mayor will sign the act, but the Council has a veto proof majority, so it will not matter whether or not she vetoes the legislation. It will still have to go to the Congress for a 30-day review period.

Conclusion

2020 was a year to remember but not in a good way. It will be remembered more in the way that many people remember the years of the Great Depression. The year was consumed by the coronavirus/COVID-19. Three of the top ten google searches in 2020 were related to the virus. Hopefully, 2021 will be a much better year. Wishing you and yours a safe and happy new year!

The information provided is my own and does not reflect the opinion of my firm or anyone else.