News & Insights

This Week at the EEOC and NLRB
July 15, 2016
by Brett Hummer

 

South Bend / Mishawaka, IN – It has been a busy week in the labor and employment arena. Here are two takeaways from the EEOC and NLRB this week:

  • EEOC’s EEO-1 Proposal to Gather Pay Data Revised Again

Earlier this year in February the Equal Employment Opportunity Commission (“EEOC”) proposed revisions to the EEO-1 report which certain employers are required to submit. As a reminder, the proposed revisions require employers to provide wage and hour data regarding their employees when they submit their annual report, in addition to the regular demographic statistics which the EEO-1 requires.

On July 13, 2016 the EEOC published a revised, proposed rule regarding the EEO-1. The EEOC’s revised proposed rule can be found here:  https://www.gpo.gov/fdsys/pkg/FR-2016-07-14/pdf/2016-16692.pdf.

Based on comments received from employers, the EEOC’s revised proposed rule is different in a couple key ways. First, the revised proposed rule changes the EEO-1 submission deadline.  Starting with the work year 2017, the new rule (if finalized) would make the EEO-1 filing deadline March 31 and be based on the employees’ W-2s from the prior year.  As a result, the first EEO-1 which must comply with the new requirements of furnishing pay data would be due by March 31, 2018.  The reporting deadline for 2016 employer data remains the same.

Second, the revised proposed rule changes what the EEOC refers to as the “Workforce Snapshot Period”. The “Workforce Snapshot Period” is the period of time applicable to the workforce and data which must be included in the employer’s EEO-1.  Due to the proposed change to the submission deadline date, the EEOC now intends for the snapshot period to include the required data for any single pay period between October 1 and December 31.  Under the original proposal, the snapshot period included employment data for a pay period between July 1 and September 30.

Employers no doubt need to be mindful of these proposed changes and the deadlines associated with the revised proposed rule, but perhaps more importantly employers should consider the potential consequences of the EEOC gathering employee pay data. The EEOC has made no bones about it:  the collection of employee pay data will be used by the agency to identify pay disparities and to address equal pay issues in its investigations.  Now is the time for employers to consider their pay practices and identify any issues which could raise concerns under equal opportunity laws.

The public comment period for the EEOC’s revised proposed rule will close August 15, 2016.

  • NLRB Says Unions can Organize Permanent and Temporary Workers without Employer Consent

A July 11, 2016 ruling in Miller & Anderson, Inc. from the National Labor Relations Board (“NLRB”/the “Board”) has ramifications for temp/staffing companies and employers who utilize such employment agencies.  The NLRB’s Miller & Anderson decision reverts to an old Board rule which allowed jointly-employed employees and solely-employed employees to collectively bargain in the same bargaining unit without first obtaining employer consent.

The new ruling comes into play in situations where employees of a supplier employer (for example, a staffing agency or temp. employee agency) are working for an employer who also employs its own employees. In light of the Miller & Anderson decision, these two groups of employees may now be represented in a single bargaining unit and they do not need to first obtain employer consent to do so, provided the two groups have a “community of interest” among them.  The NLRB boldly stated in the decision:  “Employer consent is not necessary for units that combine jointly employed and solely employed employees of a single user employee.”

The NLRB’s decision can be accessed here: https://www.nlrb.gov/news-outreach/news-story/board-decides-miller-anderson-returns-sturgis-standard

In the wake of the Miller & Anderson decision, employers should continue to pay close attention to their agreements with temp/staffing agencies so that there is a clear understanding and separation as to which employer is controlling terms and conditions of employment.  Unionization is becoming easier every day with the current administration’s Board, and employers need to be ever vigilant in considering the consequences of perceived “joint employer” status.

The content of this article is for informational purposes only, and does not contain, nor should be construed as containing, legal advice.

 

 

 

 

 

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