Employer Law Report

Cincinnati bars questions about salary history

In March 2019, the City of Cincinnati became the latest in a small but growing list of states and municipalities prohibiting employers from asking prospective employees about their prior compensation. Citing concerns about the perpetuation of pay discrimination against women in the workforce, the legislation bars Cincinnati employers with 15 or more employees from asking applicants for positions in Cincinnati for their salary histories.

What does the law say?

The law prohibits employers from:

  • Asking for information about an applicant’s current or prior compensation, including salary, benefits, and other compensation, such as bonuses
  • Screening applicants based on their salary histories
  • Relying on an applicant’s salary history (even if volunteered by the applicant) when determining whether to make an offer of employment or determining the amount of compensation offered to an applicant
  • Lastly, refusing to hire or retaliating against an applicant who refuses to provide his or her salary history

The applicant may sue an employer for damages, including attorney’s fees, if the employer violates this law. The applicant has two years from the date of the violation to bring a lawsuit.

There’s a catch. Actually, there are two catches.

Cropped shot of a man and woman completing paperwork together at a desk

This legislation does not go into effect for a full year. And, a similar law in Philadelphia was ultimately struck down by a federal district court in a lawsuit brought by its local chamber of commerce. So, Cincinnati employers may continue to ask their applicants for and consider salary histories until March 2020, when the practice must be discontinued . . . unless the law is challenged and a court strikes it down.

Standard for religious accommodation requests may get Supreme Court review

Requests for religious accommodations at work can involve a wide range of issues including schedule changes, relief from weekend or overtime work, breaks to accommodate prayer or other religious practices, dress code accommodations and even tattoos. Religious accommodations must be granted if they are “reasonable.” Currently employers have a pretty low hurdle to cross when arguing that a requested accommodation is not reasonable. The U.S. Supreme Court is sending signals that hurdle may become higher.

“Undue burden”

In religious accommodation cases, just like disability accommodation cases, to show that a requested accommodation is unreasonable an employer must show it will cause an undue burden to the business. However the phrase “undue burden” has been interpreted much more narrowly in religion cases than in disability cases. To show that requests for religious accommodation will cause an undue burden, an employer must show only that it will cause some minimal disruption to the business. This relatively low burden has been in place since one of the earliest U.S. Supreme Court cases on religious accommodations, TWA v. Hardison. The current Supreme Court is considering whether to take up a religious accommodation case filed against Walgreens. The case involves an employee’s request for relief from Saturday work due to religious observances. The Court recently asked for input from the U.S. Department of Justice on the case. That, plus indications in some earlier decisions by this Court, suggest the Court may be ready to make a change in the way religious accommodation cases are decided. Specifically, the Court may be ready to impose on employers a more heavy burden to show significant harm to the business as a basis for denying a requested accommodation.

The current political climate may also make the Court more inclined to protect asserted religious freedom. That might result in a decision strengthening the religious accommodation rights of employees, even though a majority of the Court’s current Justices usually tend to favor business rights.

A word of caution

Even considering the current relatively low burden on employers for denying accommodation requests, companies are wise to approach religious accommodation requests deliberately and cautiously. Denying a request has to be supportable by facts showing there will be some harm to the business if the request is granted. Also, there are not only legal risks to consider. There may be employee relations and even public relations implications where religious accommodation requests are denied.

EEO-1 reporting; Now open for business

UPDATE – Pay Data Required by September 30, 2019

Further action has occurred in the National Women’s Law Center v. Office of Management and Budget case, about which we reported here. Employers will need to report 2018 pay data to the Equal Employment Opportunity Commission (EEOC) by September 30, 2019. While it is clear that employers will be required to report 2018 pay data later this year, it is unclear whether pay data for 2017 will also be required at that time. The EEOC has until May 3, 2019 to decide what time period must be reported on September 30, 2019.

Porter Wright will continue to provide updates on this breaking news as more details become available.

It’s that time of year again. The 2018 EEO-1 Survey is open and must be filed with the Equal Employment Opportunity Commission (EEOC) Office of Enterprise Data and Analytics’ Employer Data Team. Employers must submit their reports by Friday, May 31, 2019.

What is the EEO-1 survey?

Federal law mandates that certain employers submit employment data for compliance purposes. The survey requires employers to submit data on employee race, ethnicity and sex categorized by one of ten job categories. Employers must gather this data from one pay period in October, November or December of each reporting year. Data must include both full-time and part-time employees.

In addition to sex, employers must report data on the following race and ethnicity categories: Continue Reading

DOL seeks to limit joint employer liability for wage and hour claims

On April 1, 2019, the Department of Labor (DOL) announced a proposed rule to narrow the definition of a “joint employer” under the Fair Labor Standards Act (FLSA). Because joint employers are jointly and severally liable for wage and hour claims brought under the FLSA, the change could have a significant impact on wage and hour litigation as we know it, offering franchisers and businesses that hire workers through staffing firms a shield from liability for some minimum wage and overtime pay violations.

Proposed regulation

Image depicting stack of wage and hour claims

Part 791 of Title 29 of the Code of Federal Regulations contains the DOL’s official interpretation of joint employer status. Under the proposed regulation, it would be significantly revised for the first time in over 60 years. A four-factor test would be used to analyze whether a potential joint employer relationship exists. Those are, whether the potential joint employer exercises the power to:

  • Hire or fire an employee
  • Supervise and control an employee’s work schedules or employment conditions
  • Determine an employee’s rate and method of pay
  • Maintain a worker’s employment records

Significantly, the proposed rule removes the threat of businesses being deemed joint employers based on the mere possibility that they could exercise control over a worker’s employment conditions. As such, merely having a contractual right under a staffing-agency or franchise agreement to exercise control over employment conditions would not amount to the level of control necessary to establish a joint employment relationship.

Expect the unexpected

Once the proposed rule is published in the Federal Register, the notice-and-comment process will begin. The DOL will accept comments from interested parties for 60 days. After that, public hearings on the proposed rule will commence and the DOL will draft formal responses to substantive comments.

In the meantime, expect the unexpected. Workers’ rights advocates who believe the rule goes too far will likely challenge it in court before final publication (if we even get to that point). We will be keeping close tabs and will report on future developments.

DOL formally publishes notice of proposed rulemaking regarding salary threshold increase

Earlier this month, we reported that the United States Department of Labor (DOL) was reportedly set to propose a new regulation that would update time-and-a-half pay requirements for all hours worked beyond 40 hours a week. The Department’s proposed rule would raise the currently-enforced salary threshold, thus extending overtime protection to more workers.

On March 7, 2019, the DOL issued a draft Notice of Proposed Rulemaking (NPRM) to update the salary threshold for overtime exemption from $23,660.00 annually to $35,308.00 annually. On March 22, 2019, the DOL formally published the NPRM in the Federal Register. As expected, workers who make less than about $35,308.00 per year would be automatically eligible for time-and-a-half pay for all hours worked beyond 40 a week under the proposed rule. The total annual compensation requirement for highly-compensated employees would also increase from $100,000.00 to $147,414.00 under the proposed rule. The proposed rule does not modify the “duties test,” a test used to determine whether workers who make more than the salary threshold are entitled to overtime wages. Continue Reading

Michigan Paid Medical Leave Act: Are you ready?

Michigan’s Paid Medical Leave Act (PMLA) goes into effect on March 29, 2019. It requires a number of new practices for employers operating in Michigan, including revision of written policies and posting notice to employees. Below are some highlights of the PMLA about which employers in Michigan should be aware:

Who does the law cover?

Employers covered by the PMLA are those that employ 50 or more persons. What is unclear is whether an employer’s employees who work outside of Michigan would count for purposes of determining whether the employer is covered by the PMLA. Unless the sate provides clarity on the question, multi-state employers with more than 50 employees nationwide, but less than 50 employees in Michigan, will need to weigh the risks – those who choose not to comply with the law may find themselves in violation and subject to penalties. Continue Reading

Resources and events for employers offered by the Ohio Bureau of Workers’ Compensation

The Ohio Bureau of Workers’ Compensation (BWC) hosts monthly webinars for employers to learn more about workers’ compensation topics. The brief webinars help employers stay up to date on developments in the workers’ compensation system. You can visit the employer webinar webpage on the Ohio BWC website to learn more about upcoming webinars and register to attend.

In addition, the BWC is hosting its Fourth Annual Workers’ Compensation Medical and Health Symposium on April 26-27, 2019 at the Great Columbus Convention Center.  There is no cost to attend.

Attendees of the provider clinical education track will have access to state and national medical experts. These experts will speak on topics such as: Continue Reading

New forms I-539 and I-539A, and additional fees, required on March 21, 2019

Foreign nationals, especially spouses and dependents of nonimmigrant workers and students, are warned that U.S. Citizenship and Immigration Services (USCIS) is revising the Form I-539, Application to Extend/Change Nonimmigrant Status. This form is used by nonimmigrants to extend their stay in the U.S. or change to another nonimmigrant status, as well as for F and M students applying for reinstatement. The new form was issued on March 11, 2019 and after March 21, 2019, USCIS will accept only the newly revised version of the form, with an edition date of Feb. 4, 2019. All other versions of the form, including the current one dated Dec. 23, 2016, will be rejected. Additionally a new Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status, generally used to extend or change status of dependent children, has been being revised and published. Continue Reading

DOL releases notice of proposed rulemaking regarding salary threshold increase

Last week, the United States Department of Labor (DOL) was reportedly set to propose a new regulation that would update time-and-a-half pay requirements for all hours worked beyond 40 hours a week. The department’s proposed rule would raise the currently-enforced salary threshold, thus extending overtime protection to more workers. This would be the first such update to the salary threshold since 2004.

On March 7, 2019, the DOL announced a Notice of Proposed Rulemaking (NPRM) to update the salary threshold from $23,660.00 annually to $35,308.00 annually. In other words, workers who make less than about $35,308.00 per year would be automatically eligible for time-and-a-half pay for all hours worked beyond 40 a week under the DOL’s proposal. Importantly, the proposed rule does not modify the “duties test,” a test used to determine whether workers who make more than the salary threshold are entitled to overtime wages. Furthermore, the proposed rule does not establish automatic, periodic increases of the salary threshold. Instead, the DOL is soliciting comments form the public regarding how the DOL should update overtime requirements every four years. The DOL released these details on its website ahead of the Federal Register’s expected publication of the regulation next week. Continue Reading