BCLP At Work

Main Content

Who is responsible for providing National Minimum Wage pay information in the context of a TUPE transfer?

July 19, 2019

Categories

Employers are required, under the National Minimum Wage Act 1998 (“Act”), to maintain pay records and, if requested to do so, to produce such information to their workers.  A failure by an employer to comply with its obligation to produce pay information within 14 days of a request can result in an Employment Tribunal making a declaration and award against the employer of up to 80 times the national minimum wage rate.

The Act expressly provides that in the event of a cessation of employment, the employee should seek such information from their former employer in respect of pay during that period of employment.

In a recent decision, the Employment Appeal Tribunal (“EAT”) clarified that because an employee’s employment automatically transfers and does not terminate in the context of a TUPE transfer, where an employee TUPE transfers to a new employer (the transferee), it is that employer which has the obligation to provide pay records, not the employee’s former employer (the transferor).

This decision highlights the need (particularly in the context of an outsourcing) for contractual obligations on a transferor to provide the transferee with all necessary information in relation to the transferring employees.

Colorado Employers Face New Employment Laws

With Colorado’s return to one-party control, Colorado employers face a spate of new employment laws. Employers in Colorado should review their practices, policies, and procedures to ensure that they are in compliance with these new laws.

Colorado Chance to Compete Act—“Ban the Box” Legislation: Under the new law, an employer may not state in an advertisement or application that a person with a criminal history may not apply to the position. The employer also may not inquire about or require the disclosure of an applicant’s criminal history in an initial application. The law takes effect on September 1, 2019, for employers with 11 or more employees, and September 1, 2021 for employers with fewer than 11 employees.

Equal Pay for Equal Work Act: The law prohibits an employer from discriminating between employees on the basis of sex by paying an employee of one sex a wage rate less than the rate paid to an employee of a different sex for substantially similar work, regardless of job title. The law also prohibits an employer from seeking or relying on a prospective employee’s wage rate history to determine a wage rate. Finally, employers may not prohibit employees from discussing their wage rates. The law takes effect January 1, 2021.

Criminal Penalties for Wage Violations:  Employers who willfully refuse to pay a wage claim or falsely deny the validity of a wage claim over $2,000 may be liable for felony theft. The penalty for theft ranges from $50 to $1,000,000 depending upon the

EEOC Publishes Much Anticipated EEO-1 Component 2 Guidance in Advance of Employers’ September 30th Filing Deadline

On July 1, 2019, the Equal Employment Opportunity Commission (“EEOC”) published its much anticipated guidance on the collection and submission of Component 2 data of the EEO-1 report.  As a reminder, covered employers are required to submit Component 2 data (which covers certain pay data and hours worked data) for report years 2017 and 2018 by September 30, 2019.  The EEOC intends to use Component 2 data to identify potentially unlawful pay disparities based on race/ethnicity and sex.

The guidance, which is published on the EEOC’s web-based portal, includes a variety of information, including a sample EEO-1 Component 2 report form, a Fact Sheet, and a Frequently Asked Questions section (“FAQ”).

Much of the new guidance aligns with that which the EEOC published in 2016, before the White House’s Office and Management and Budget stayed the collection of Component 2 data in August 2017.  Below are a few important highlights from the new guidance:

  • Workforce Snapshot Period
    • Employers need only submit Component 2 data for employees employed during the “workforce snapshot period” for each of the relevant reporting years.
    • The “workforce snapshot period” is an employer-selected pay period between October 1 and December 31 of the reporting year.
    • The “workforce snapshot period” does not need to be the same for 2017 and 2018, nor does it need to align with the pay period used for submitting Component 1 data.
  • Pay Data
    • Employers will submit Component 2’s pay data by

Off-Payroll Working Rules

From April 2020 the responsibility for determining whether engagements with individuals who provide their services through an intermediary (typically a “PSC”) are within the off-payroll working rules shifts to the client for engagements in the Private Sector, with the burden of  operating PAYE and collecting National Insurance Contributions (“NICs”) falling on the relevant “fee payer” in the work supply chain.

Although it is encouraging that HMRC have reconfirmed that it does not intend to carry out targeted campaigns into previous years when individuals start paying employment taxes following the reforms, we expect that HMRC will take a robust approach to the enforcement of the new rules.

There is an enormous amount of work to be done across the private sector to ensure that medium/large businesses who are dependent on a flexible workforce are ready in time for the changes in April 2020.

Status determination and communications

When clients have determined an individual’s status for the off-payroll working rules, the client will be required to pass the determination to the party they directly contract with, as well as the individual worker.  Significantly, clients will also need to provide reasons for the determination.

It is hoped this will be an incentive to clients to take care in making determinations – reducing the risk of “blanket” assessments and limiting status disputes.

Businesses must therefore adopt internal policies to make proper status determinations for engagements and communicate these to individuals and their contract counterparties effectively.

HMRC promise plenty of guidance, targeted communications as well

The CCPA: Employee Data Requirements May Be Delayed, But Do Not Appear to be Going Away

July 12, 2019

Categories

Action is currently underway to amend the California Consumer Privacy Act (“CCPA”) to provide employers an additional year to comply with the CCPA with respect to employee data of California-based employees.

The California Senate Judiciary Committee has passed AB-25, an amendment to the CCPA that would delay most of the compliance obligations for employee data until January 1, 2021. Specifically, the amendment provides that employees are not “consumers” for most purposes of the statute until January 1, 2021.

If the legislature passes the bill, the CCPA will still apply to employers with California-based employees in the following ways, effective January 1, 2020:

  • Employees will be able to sue employers for a data breach involving their unencrypted data
  • Employers must provide a notice to employees describing the categories of employee information collected, used and disclosed by the employer.

While there have been many predictions that the CCPA would be amended to remove employee data from the requirements of the statute altogether, if the California state legislature approves the bill amending the CCPA, the effect will be to simply delay the compliance obligations for employers for a year.

For now the bill is with the Senate Appropriations Committee for hearing and another round of voting.  Assuming Appropriations votes to pass the bill, it will go to the Floor for a vote.  The Appropriations Committee has until August 30th to vote on bills.

BCLP offers a complete compliance program for employers that includes a formal gap assessment and tailored policies, procedures, and protocols

What Employers Need to Know about New York State’s New Discrimination and Harassment Laws

In 2018, in response to the #MeToo and #TimesUp movements, New York State enacted laws to provide stronger protections against workplace sexual harassment, including mandating that New York employers have a complaint and investigation process and a sexual harassment policy, and provide their employees with training.

On June 19, 2019, the New York Legislature voted to further reform New York law and to extend protections under the New York State Human Rights Law (“NYSHRL”) to employees of all protected categories from all forms of discriminatory harassment in the workplace.  See NYS Assembly Bill No. A8421.  The bill is expected to be signed by Governor Andrew Cuomo, who supported the measure.

Once enacted, some provisions will take immediate effect while others will be phased in over the course of one year.  Here is the timeline for some of the provisions:

California Employers Have Less Than Six Months To Complete Sexual Harassment and Abusive Conduct Training

In September 2018, California passed SB 1343, which expanded the sexual harassment training requirements for California employers.  Previously, employers with 50 or more employees were required to provide at least two hours of sexual harassment training to all supervisory employees within six months of their assumption of a supervisory position and once every two years thereafter.

SB 1343 expands the training requirement in two key ways.  First, it requires employers who employ five or more employees to provide sexual harassment training.  Second, in addition to training supervisors, employers must now provide at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020, and once every two years thereafter.  As a result, all employees will need to be retrained by January 1, 2022.

The good news for employers is that the California Department of Fair Employment and Housing (“DFEH”) is required to develop online training courses that employers can use to satisfy their obligation to provide sexual harassment training.  The bad news is that the DFEH still has not done so and there is no date certain by which the online training courses will be available.  However, the DFEH has posted a sexual harassment and abusive conduct prevention toolkit, which includes a sample sexual harassment and abusive conduct prevention training.  It is available here: https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2018/12/SexualHarassmentandAbusiveConductPreventionTrainingToolkit.pdf.  However, unlike the online training courses that will be available, the toolkit is intended to be used in conjunction with a qualified trainer.

With only six months until the end

Employers Must Submit Pay Data in EEO-1 Reports for 2017 and 2018 – Additional Guidance from the EEOC is Forthcoming

As a result of recent federal litigation, the Equal Employment Opportunity Commission (“EEOC”) has announced that employers must submit pay data in their annual EEO-1 reports to the agency for calendar years 2017 and 2018 by September 30, 2019.  Although not currently active, the EEOC expects a web-based portal for the collection of the data to be open by mid-July 2019.  The portal will be available at https://eeoccomp2.norc.org.

In addition to the portal, the EEOC intends to issue guidance, including FAQs and other materials, to assist employers in mid-July 2019.  In the meantime, the Department of Justice has filed a Notice of Appeal to the federal litigation that lifted the EEOC’s stay on collecting such pay data.  Likewise, the EEOC’s helpdesk is set to become operational this week and can be contacted as follows:

Email: EEOCcompdata@norc.org

Toll Free Telephone: (877) 324-6214

Although an appeal has been filed, the EEOC is proceeding with enforcement of the regulation, so employers should not wait on the outcome of the appeal to begin compliance efforts. If they have not already done so, employers should immediately begin reviewing their collection processes to ensure that they are prepared to report the required pay data by September 30, 2019.

Bryan Cave Leighton Paisner LLP has a team of knowledgeable lawyers and other professionals prepared to help employers review and comply with EEO-1 reporting obligations.  If you or your organization would like more information or assistance in preparing EEO-1 reports, please contact an attorney in the Labor

Website Accessibility Alert: Court Addresses Mootness Argument in Website Accessibility Case

As businesses continue to face lawsuits and demand letters alleging that their websites are inaccessible to blind and deaf patrons in violation of the Americans with Disabilities Act (“ADA”), courts across the country continue to weigh in on the issue.  On Tuesday, June 4, 2019, the United States District Court for the Southern District of New York issued a decision in Diaz v. The Kroger Co. – holding that the Court lacked both subject matter and personal jurisdiction over the case because the complaint had been rendered moot by modifications defendant made to the website and because the defendant did not sell goods or services in New York.  Diaz v. The Kroger Co., Case No. 18-cv-07953, Opinion and Order [Dkt. No. 35].

In Diaz, the plaintiff, a visually-impaired and legally blind individual who resides in the Bronx, New York, alleged that the website of defendant Kroger, a supermarket chain with its principal place of business in Cincinnati, Ohio, denied equal access to blind customers.  Kroger moved to dismiss the complaint on two grounds:  (1) for lack of subject matter jurisdiction because it remedied the barriers to access to its website, and (2) for lack of personal jurisdiction because it does not conduct business in New York.  The Court granted Kroger’s motion to dismiss on both grounds.

In granting Kroger’s motion to dismiss for lack of subject matter jurisdiction, the Court noted that the facts of the case were different from other cases where courts found, “on the facts of those cases, that the defendants

French Gender Equality Index

In order to fight against gender inequalities at work, French law no. 2018-771 adopted on 5 September 2018 introduces an obligation for employers to achieve the principle of equal remuneration between women and men (as opposed to a best efforts obligation). To do so, companies with 50+ employees will be required to calculate an “equal pay index”, based on gender equality indicators. They must then publish their results on their website and remedy inequalities in the event of insufficient results. They must also disclose the result to their personnel representatives and to the French labor authorities.

The gender equality indicators that must be taken into account are:

– the gender pay gap, calculated according to the average pay of women as compared to men, by age group and equivalent job category;

– the difference in the rate of individual salary increases between women and men;

– the percentage of employees who were granted an increase in the year following their return from maternity leave, if increases were granted during the period during which the leave was taken;

– the number of employees of the under-represented sex among the ten employees with the highest remuneration.

In addition, companies that have 250+ employees must take into account a fifth indicator: the gap in promotion rates between women and men.

Points will be granted for each indicator depending on the results achieved. The results are then aggregated in order to obtain an overall result ranging from 0 to 100 points. French Decree n°

The attorneys of Bryan Cave Leighton Paisner make this site available to you only for the educational purposes of imparting general information and a general understanding of the law. This site does not offer specific legal advice. Your use of this site does not create an attorney-client relationship between you and Bryan Cave LLP or any of its attorneys. Do not use this site as a substitute for specific legal advice from a licensed attorney. Much of the information on this site is based upon preliminary discussions in the absence of definitive advice or policy statements and therefore may change as soon as more definitive advice is available. Please review our full disclaimer.