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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

Employer CCPA FAQs #9: May an employer become subject to the CCPA because of a corporate transaction?

As our series of FAQs regarding the California Consumer Privacy Act (“CCPA”) continues we are examining the scope of the law’s jurisdiction.    These FAQs should help employers determine if they are required to comply with the CCPA and if so, what steps their HR professionals and IT departments should take to be in compliance. As a reminder, the CCPA is a new privacy law that applies to data collected about California-based employees.   The CCPA will go into effect in early 2020, and employers who must comply should be addressing compliance obligations now. For US employers who have not had to comply with the GDPR, the requirements of the CCPA will likely require a new analysis of the treatment of employee-data and implementation of updated or new data policies.  For employers with European operations, one key area of interest is the degree to which the CCPA aligns with the European General Data Protection Regulation (“GDPR”).   Employers in compliance with the GDPR will likely already be familiar with many of the requirements of the CCPA – and with some assistance, should be able to bring their operations and policies into compliance with respect to California-based employees. BCLP offers a complete compliance program for employers that includes a formal gap assessment and tailored policies, procedures, and protocols to close identified gaps. Bryan Cave Leighton Paisner LLP has a team of knowledgeable lawyers and other professionals prepared to help employers address their obligations under the California Consumer Privacy Act. If you or your

Employer CCPA FAQs #8: Does the CCPA apply to non-profit employers?

As our series of FAQs regarding the California Consumer Privacy Act (“CCPA”) continues we are examining the scope of the law’s jurisdiction.    These FAQs should help employers determine if they are required to comply with the CCPA and if so, what steps their HR professionals and IT departments should take to be in compliance. As a reminder, the CCPA is a new privacy law that applies to data collected about California-based employees.   The CCPA will go into effect in early 2020, and employers who must comply should be addressing compliance obligations now. For US employers who have not had to comply with the GDPR, the requirements of the CCPA will likely require a new analysis of the treatment of employee-data and implementation of updated or new data policies.  For employers with European operations, one key area of interest is the degree to which the CCPA aligns with the European General Data Protection Regulation (“GDPR”).   Employers in compliance with the GDPR will likely already be familiar with many of the requirements of the CCPA – and with some assistance, should be able to bring their operations and policies into compliance with respect to California-based employees. BCLP offers a complete compliance program for employers that includes a formal gap assessment and tailored policies, procedures, and protocols to close identified gaps. Bryan Cave Leighton Paisner LLP has a team of knowledgeable lawyers and other professionals prepared to help employers address their obligations under the California Consumer Privacy Act. If you or your

Employer CCPA FAQs #7: If an employer is based in California, will the CCPA requirements apply to all employee data held by the employer?

As our series of FAQs regarding the California Consumer Privacy Act (“CCPA”) continues we are examining the scope of the law’s jurisdiction.    These FAQs should help employers determine if they are required to comply with the CCPA and if so, what steps their HR professionals and IT departments should take to be in compliance. As a reminder, the CCPA is a new privacy law that applies to data collected about California-based employees.   The CCPA will go into effect in early 2020, and employers who must comply should be addressing compliance obligations now. For US employers who have not had to comply with the GDPR, the requirements of the CCPA will likely require a new analysis of the treatment of employee-data and implementation of updated or new data policies.  For employers with European operations, one key area of interest is the degree to which the CCPA aligns with the European General Data Protection Regulation (“GDPR”).   Employers in compliance with the GDPR will likely already be familiar with many of the requirements of the CCPA – and with some assistance, should be able to bring their operations and policies into compliance with respect to California-based employees. BCLP offers a complete compliance program for employers that includes a formal gap assessment and tailored policies, procedures, and protocols to close identified gaps. Bryan Cave Leighton Paisner LLP has a team of knowledgeable lawyers and other professionals prepared to help employers address their obligations under the California Consumer Privacy Act. If you or your

Employer CCPA FAQs #6: Does an employer need to generate revenue in California in order for CCPA to apply?

As our series of FAQs regarding the California Consumer Privacy Act (“CCPA”) continues we are examining the scope of the law’s jurisdiction.    These FAQs should help employers determine if they are required to comply with the CCPA and if so, what steps their HR professionals and IT departments should take to be in compliance. As a reminder, the CCPA is a new privacy law that applies to data collected about California-based employees.   The CCPA will go into effect in early 2020, and employers who must comply should be addressing compliance obligations now. For US employers who have not had to comply with the GDPR, the requirements of the CCPA will likely require a new analysis of the treatment of employee-data and implementation of updated or new data policies.  For employers with European operations, one key area of interest is the degree to which the CCPA aligns with the European General Data Protection Regulation (“GDPR”).   Employers in compliance with the GDPR will likely already be familiar with many of the requirements of the CCPA – and with some assistance, should be able to bring their operations and policies into compliance with respect to California-based employees. BCLP offers a complete compliance program to employers that includes a formal gap assessment as well as policies, procedures, and protocols to close identified gaps.  BCLP offers a complete compliance program for employers that includes a formal gap assessment and tailored policies, procedures, and protocols to close identified gaps. Bryan Cave Leighton Paisner LLP has a team

Employer CCPA FAQs #5: Does an employer have to be “established” in the United States for U.S. data privacy and security laws, and particularly the CCPA, to apply?

In this Series of our FAQs examining the California Consumer Privacy Act (“CCPA”), we are examining the scope of the law’s jurisdiction.  These FAQs should help employers determine if they are required to comply with the CCPA and if so, what steps their HR professionals and IT departments should take to be in compliance. As a reminder, the CCPA is a new privacy law that applies to data collected about California-based employees.   The CCPA will go into effect in early 2020, and employers who must comply should be addressing compliance obligations now. For US employers who have not had to comply with the GDPR, the requirements of the CCPA will likely require a new analysis of the treatment of employee-data and implementation of updated or new data policies.  For employers with European operations, one key area of interest is the degree to which the CCPA aligns with the European General Data Protection Regulation (“GDPR”).  Employers in compliance with the GDPR will likely already be familiar with many of the requirements of the CCPA – and with some assistance, should be able to bring their operations and policies into compliance with respect to California-based employees. BCLP offers a complete compliance program to employers that includes a formal gap assessment as well as policies, procedures, and protocols to close identified gaps.  BCLP offers a complete compliance program for employers that includes a formal gap assessment and tailored policies, procedures, and protocols to close identified gaps. Bryan Cave Leighton Paisner LLP has

Employers Have Until September 30, 2019 to Submit Pay Data to the EEOC

Update to our April 11 article:

Earlier today, Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia ordered employers to submit worker pay data to the Equal Employment Opportunity Commission (“EEOC”) by September 30, 2019. In so ruling, the Court rejected arguments from worker advocate groups who had sought to require the collection of pay data by May 31, 2019.

Pursuant to the Court’s Order, employers must submit two years’ worth of pay data to the EEOC.  While data for 2018 must be included in an employer’s September 30th submission, the EEOC is free to choose whether the second year of data will come from 2017 or 2019.   If the EEOC elects to collect data from 2017, employers will be required to submit the 2017 pay data by September 30, 2019 as well.  If the agency elects to collect data from 2019, employers will be required to submit the 2019 pay data in the spring of 2020.  The EEOC has until May 3, 2019 to decide whether it will collect 2017 pay data or 2019 pay data.

If not already done, 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

EEOC Proposes September 30, 2019 Deadline for Employers to Submit Pay Data

In court documents filed on April 3, 2019, the Equal Employment Opportunity Commission (“EEOC”) announced that employers may be required to submit pay data to the agency by September 30, 2019.

The filing was made after Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia ordered the EEOC to describe when and how it will comply with the Court’s March 4th Order lifting the White House’s Office of Management and Budget’s August 2017 stay on the EEOC’s collection of pay data.

Pay data has received much attention from employers and advocates alike since the Court’s March 4th Order, but the EEOC has largely remained silent until this recent filing.  For example, on March 18, 2019, when the EEOC opened its online portal for filing EEO-1 reports for 2018 (which are due by May 31, 2019), the portal did not include any request for pay data.  Instead, the agency issued a statement that same day noting that it was “working diligently on next steps” regarding the collection of pay data.

In addition to identifying a date by when employers may need to submit pay data, the EEOC’s April 3rd filing also proposes that employers only be required to submit pay data for 2018 (rather than 2017 and 2018) and describes the agency’s plan to use a data and analytics contractor to develop a new reporting program to collect the data.

The September 30, 2019 deadline, however, is not set in stone.  Worker advocates objected to the

Pay Equity Shareholder Proposals

Scrutiny of the gender pay gap in the U.S. and abroad has intensified in recent years and shows no sign of diminishing in the short term.

In the U.K., both private and public sector employers with at least 250 employees are now required to publish gender pay data. This is an annual obligation to publish details including the organization’s overall gender pay gap, the percentages of male and female employees across four quartiles and the gender pay gap in relation to bonuses. The deadline for the first reports was April 4, 2018, for private sector employers and March 30, 2018, for public sector employers.

Meanwhile, in the U.S., the Equal Employment Opportunity Commission continues to identify pay discrimination enforcement actions among its strategic priorities, and a number of states (e.g., California, Delaware, Oregon, etc.) have recently enacted more stringent laws aimed at achieving pay equality in the workplace.  Alongside these legislative and enforcement efforts to curb pay discrimination, activist shareholder firms have begun pressuring public companies in the U.S. to address the gender pay gap by making shareholder proposals that, if passed, would require targeted companies to disclose pay information describing their female employees’ pay as a percentile of male employees’ compensation.

Activist firms, such as Arjuna Capital and Trillium Asset Management, have targeted numerous companies with shareholder proposals that would require disclosure of gender pay data in annual 14-A proxy statements. Overwhelmingly, these proposals have either failed (by a significant margin) or, increasingly, have been withdrawn before a formal

Supreme Court Rejects Disabled Employee’s Bid to Revive His $2.6 Million ADA Jury Verdict: Why You Should Still Regularly Update Job Descriptions and Supporting Documents

January 3, 2018

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On October 16, 2017, the Supreme Court rejected an employee’s petition for review of a decision in Stevens v Rite Aid Corporation.[1]  Stevens sued under the Americans with Disabilities Act (“ADA”) for alleged discriminatory discharge claiming trypanophobia or “fear of needles” as a disability.  Rite Aid discharged Stevens, a pharmacist of 32 years (with Rite Aid and its predecessors), after he refused to comply with Rite Aid’s requirement that pharmacists administer immunization injections to its customers.  The Second Circuit held that administering injections was an essential function of the pharmacist position at the time of his termination, and therefore, concluded that Stevens was not a “qualified individual” with a disability.

At trial, Rite Aid personnel testified that the company made a business decision to start requiring pharmacists to perform immunizations.  While courts are required to consider a variety of factors under Equal Employment Opportunity Commission’s (EEOC) regulations, many courts give substantial or “considerable” deference to an employer’s business judgment and written job descriptions.  Following this deferential standard, the Second Circuit reversed entry of judgment in Stevens’ favor and ordered the district court to vacate the jury’s $2.6 million award and enter judgment for Rite Aid as a matter of law on his claim of disability discrimination.

The Second Circuit is in line with other circuits, including the Fifth, Eighth, and Tenth Circuits, which have concluded that considerable or substantial deference to an employer’s business judgment about essential functions and its written job descriptions is required.   However, some circuit

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