Wyatt Employment Law Report

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When Can Employers Expect to See a Final Rule Revising the White Collar Exemptions for the FLSA?

By Sharon L. Gold

OLYMPUS DIGITAL CAMERAOn March 14, 2016, the Department of Labor forwarded its modifications to the Notice of Proposed Rulemaking (NPRM), which increases the salary requirements for exempt workers under the Fair Labor Standards Act (FLSA), to the Congressional Office of Management and Budget (OMB).  This is the last step before the NPRM’s publication.  [See here]

As we previously reported [See here],  the NPRM increases the minimum salary requirement for exempt workers from Continue reading

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Eleventh Circuit Reverses NLRB & Finds Stagehands Are Independent Contractors

By Michael D. Hornback

Like me, I am sure some of you have attended an over-the-top concert and thought “Who puts up these stages and all of these lights?”  More importantly, who are the poor souls that are relegated to taking all of this stuff down after the concert is over (which must feel like that never ending drive back to reality after a vacation at the beach)?  Have you ever been to a concert and thought, “Hey, are these stagehands employees or independent contractors?”  Yeah, me neither.  However, that was the precise question before the Eleventh Circuit Court of Appeals in the case of Crew One Productions, Inc. v. National Labor Relations Board, Case No. 15-10429.  I’ll save you the suspense, Continue reading

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NLRB’s Browning-Ferris Industries Decision to be Reviewed by Federal Court of Appeals

By George J. Miller

iStock_000008223650_FullIn the past two weeks there have been some important developments in the ongoing case against Browning-Ferris Industries of California (“BFI”).  Recall that in August 2015, the National Labor Relations Board issued a decision in a union election case filed by Teamsters Local 350 against BFI and its labor contractor, Lead Point Business Services.  The Teamsters sought to represent a unit of employees in certain job classifications at a BFI recycling facility in California who were all supplied by Lead Point.  The Teamsters’ election petition sought a decision that BFI and Lead Point jointly employed these employees, but the NLRB Regional Director rejected the Union’s position, finding that under NLRB precedent at that time, BFI and Lead Point were not a joint employer.  The Regional Director directed an election which was held on April 25, 2014.  However, the employees’ ballots were impounded while the Teamsters sought and obtained review of the Regional Director’s decision by the NLRB.

In its August 2015 decision on review, a three member majority of the five member Board overruled the Board precedent relied upon by the Regional Director and found that BFI and Lead Point were a joint employer of these employees.  Although Lead Point hired and paid the wages and benefits of the employees, the Board concluded that BFI jointly employed them because it had significant Continue reading

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Top Trending Employment Practices Liability (EPL) Claims and EEOC Charges

By Sharon L. Gold

Information gleaned from the EEOC, the DOL and the insurance industry can assist in analyzing what types of claims employers are likely to see in the coming years.

The most recent EEOC statistics reveal that in Kentucky, Indiana, Tennessee and Mississippi, the top filed charges with the EEOC were (in varying order depending on the state): race, retaliation, disability and sex discrimination [see here].  There is no doubt that the EEOC is aggressively pursuing lawsuits and charges against employers in these areas.  In addition, Continue reading

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Employers: Are you ready to share your pay data with the Feds?

By Leila G. O’Carra

On February 1, 2016, the EEOC published its proposal to add compensation data to EEO-1 submissions, starting in 2017.  Specifically, the new rule would require employers that are subject to EEO-1 reporting and that have 100 or more employees to supply data on employees’ earnings and hours worked.

Employee pay data will be gleaned from W-2 earnings.  The EEOC is seeking input on a method for reporting salaried employees’ hours worked.  The agency does not anticipate requiring employers to track salaried exempt employees’ hours.

Federal agencies plan to use the EEO-1 pay data to assess complaints of discrimination, focus investigations, and identify employers with existing pay disparities that might warrant further examination.  The EEOC expects that the new reporting Continue reading

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ACA Reporting Deadline Extended

By Rachel K. Mulloy

The IRS recently released good news for employers, service providers, and others who are required to file the 1094 and 1095 series Information Return forms pursuant to the Affordable Care Act.  In Notice 2016-4, the IRS has granted additional time for filing these forms for 2015:

  • The deadline for providing individuals with Form 1095-B (Health Coverage) and Form 1095-C (Employer-Provided Health Insurance Offer and Coverage) has been extended from February 1, 2016, to March 31, 2016; and
  • The deadline for filing Form 1094-B (Transmittal of Health Coverage Information Returns), Form 1095-B (Health Coverage), Form 1094-C (Transmittal of Employer-Provided Health Insurance Offer and Coverage Information Returns), and Form 1095-C (Employer-Provided Health Insurance Offer and Coverage) has been extended from March 31, 2016, to June 30, 2016 if filing electronically, and from February 29, 2016 to May 31, 2016, if not filing electronically.

Employers and service providers should not, however, expect any further extensions.  As the IRS explained: “In view of these extensions, the provisions regarding automatic and permissive extensions of time for filing information returns and permissive extensions of time for furnishing statements will not apply Continue reading

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EEOC Finds That Discrimination Based on Sexual Orientation is Prohibited by Title VII

By Courtney Ross Samford

On July 16, 2015, the EEOC announced that sexual orientation is included within Title VII’s prohibition against sex discrimination in Complainant v. Foxx, 2015 WL 4397641 (EEOC July 16, 2015).  Foxx worked as an air traffic control specialist in Miami, Florida.  He claimed that he was discriminated against in violation of Title VII when he was not selected for a permanent promotion based on his sexual orientation.  Foxx alleged that one of his supervisors said, “We don’t need to hear about that gay stuff” in response to a story about his male partner, and referred to his relationship as a “distraction in the radar room” on numerous occasions.  The EEOC found that the complaint properly stated a claim of sex discrimination because “sexual orientation is inherently a ‘sex-based consideration.’”

In the decision, the EEOC further opined that “[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”  As such, “[a]n employee could show that the sexual orientation discrimination he or she experienced was sex discrimination because it involved treatment that would not have occurred but for the individual’s sex; because it was based on the sex of the person(s) the individual associates with; and/or because it was premised on the fundamental sex stereotype, norm, or expectation that individuals should be attracted only to those of the opposite sex.”  This expands the EEOC’s previous interpretation that Title VII only encompassed discrimination based on an employee’s failure to conform to gender stereotypes.

While the EEOC’s decision is momentous for the LGBT community, it is not binding on state or federal courts.  Even if courts choose not to adopt the EEOC’s expansive definition of sex discrimination, employers should re-evaluate their current policies to avoid compliance issues with the EEOC.