Due to the government shutdown, the opening of the EEO-1 Survey has been postponed until early March 2019. The deadline to submit EEO-1 data will be extended until May 31, 2019. The EEO-1 is an annual survey mandated by federal law that requires all private employers with 100 or more employees and federal government contractors or first-tier subcontractors with 50 or more employees and a federal contract, sub­contract or purchase order amounting to $50,000 or more to file the EEO-1 report.

Filers should refer to the EEO-1 website at (https://www.eeoc.gov/employers/eeo1survey/index.cfm) in the coming weeks for updates on the new schedule and filing instructions. We can also be of assistance as needed.

What Happened?

On May 21, 2018, the United States Supreme Court ruled in Epic Systems Corp. v. Lewis that employers can require employees to arbitrate disputes with the employer (including disputes arising under the Fair Labor Standards Act) individually and waive their right to pursue or participate in class or collective actions against their employer.  This ruling resolved a split among circuit courts because some circuits (including the 9th Circuit) found such waivers were unenforceable as a matter of law. The Supreme Court concluded, “Congress has instructed federal courts to enforce arbitration agreements according to their terms—including terms providing for individualized proceedings.”

What this Means?

This decision is a significant win for employers.  Before Epic Systems, the wisdom of requiring employees to arbitrate employment disputes was debatable.  That debate is over.  The benefit of avoiding the oppressive expense and catastrophic legal exposure faced by employers in defending class and collective employment law actions far outweighs any arguable downside of arbitration.

What to Do?

Implement an employment dispute arbitration agreement (or amend your organization’s existing arbitration agreement) to include an explicit class and collective action waiver.  We are available to assist your organization with this process.

The EEO-1 is an annual survey that requires all private employers with 100 or more employees and federal government contractors or first-tier subcontractors with 50 or more employees and a contract/subcontract of $50,000 or more to file the EEO-1 report.  The EEO-1 report provides employment data by race/ethnicity, gender and job categories. The filing of the EEO-1 report is not voluntary and is required by federal law.  The annual filing deadline is March 31.

Employers who meet the criteria listed above and have not received the 2017 EEO-1 Notification Letter by Jan. 29, 2018, should imme­diately contact the EEO-1 Joint Reporting Committee at 1-877-392-4647 (toll-free) or by e-mailing [email protected].   The EEOC’s EEO-1 Survey website at https://www.eeoc.gov/employers/eeo1survey contains reference documents such as a EEO-1 User’s Guide, sample form, instructions, FAQs, a fact sheet and a EEO-1 Job Classification Guide.

The EEOC announced today a settlement of an ADA failure to accommodate charge filed against ValleyLife that included a payment of $100,000, among other remedies.

The charge alleged that ValleyLife violated the ADA’s reasonable accommodation obligation by terminating employees automatically upon exhaustion of their paid time off and/or any unpaid leave period (such as FMLA). According to the EEOC, the employer should have engaged in an interactive process with the Charging Party to explore other accommodations (including additional time off) before considering termination.

Key Take-Aways From this Settlement

* Providing an employee with a medical leave of absence for the full time period required by company policy and/or applicable leave laws (such as FMLA) does not necessarily satisfy the employer’s reasonable accommodation obligation under the ADA

**  Each medical leave of absence scenario must be evaluated on an individualized basis to determine if accommodations exist to avoid termination

*** The interactive process MUST be documented in a carefully crafted communication to the employee in case the decision is later challenged    

As previously advised (see https://gabrielashworth.com/arizona-passes-proposition-raising-minimum-wage-and-requiring-paid-sick-leave/) the “Fair Wages and Healthy Families Act” (the “Act”) requires employers to post a notice in the workplace describing employees’ rights under the Act.  The Industrial Commission of Arizona has published model minimum wage and paid sick leave notices in both English and Spanish, which can be found at https://www.azica.gov/posters-employers-must-display.  Even though the paid sick leave law does not become effective until July 1, 2017, we recommend employers post both notices now.