March 2019 – ManagEase

Hold On to Your Hats – Expanded EEO-1 Pay Data May Need to Be Reported for 2018

March 7, 2019/0 Comments/in HR Alerts /by ManagEase

APPLIES TO

All Employers Required to Submit EEO-1 Reports

EFFECTIVE

March 4, 2019

QUESTIONS?

Contact HR On-Call

(888) 378-2456

A Washington, D.C. federal district court judge in National Women’s Law Center v. OMB recently stated that the previously revised EEO-1 report, including employee pay data, is the form employers should be using to submit their required Employer Information Report. In 2016, the EEOC proposed changes to its employer data collection requirements to add 12 pay bands for the 10 job categories that are tracked in EEO-1 reporting. After proposed revisions, the rule was approved by the Office of Management and Budget (OMB) and the revised EEO-1 form was issued. However, following the 2016 presidential election, the OMB directed the EEOC to issue a stay of the form’s release, which it did, and the EEOC subsequently removed the revised EEO-1 form from its website.

Third Circuit: FAAAA Does Not Preempt State Independent Contractor Laws

March 7, 2019/0 Comments/in HR Alerts /by ManagEase

APPLIES TO

All Employers with DE, NJ, PA, or Virgin Islands Employees

EFFECTIVE

January 29, 2019

QUESTIONS?

Contact HR On-Call

(888) 378-2456

In Bedoya v. American Eagle Express Inc., the Third Circuit Court of Appeal stated that the Federal Aviation Authorization Administration Act of 1994 (FAAAA) does not preempt New Jersey’s wage and hour laws, permitting delivery drivers to continue with a suit under state wage and hour laws for improper classification as independent contractors.

Sixth Circuit: Off-Duty Law Enforcement Misclassified as Independent Contractors

March 7, 2019/0 Comments/in HR Alerts /by ManagEase

APPLIES TO

All Employers of KY, MI, OH, or TN Employees

EFFECTIVE

February 12, 2019

QUESTIONS?

Contact HR On-Call

(888) 378-2456

In Acosta v. Off Duty Policy Services, Inc., the Sixth Circuit applied the six-factor “economic reality” test to determine whether off-duty officers were misclassified as independent contractors for purposes of the Fair Labor Standards Act (FLSA). There, the employer provided private security services using off-duty, sworn police officers, as well as nonsworn workers. The workers were allowed to accept or reject work assignments, were provided basic equipment, but had to supply their own vehicles and uniforms. The sworn officers typically wore their officer uniforms and used their patrol vehicles, while the nonsworn workers had to use their own police-style vehicle.

Ninth Circuit: Joint Employers Are Liable for Non-Workplace Matters Under Title VII for H-2A Workers

March 7, 2019/0 Comments/in HR Alerts /by ManagEase

APPLIES TO

All Employers with AK, AZ, CA, HI, ID, MT, NV, OR, WA, Guam, or Northern Mariana Islands Employees with H-2A Visas

EFFECTIVE

February 6, 2019

QUESTIONS?

Contact HR On-Call

(888) 378-2456

In EEOC v. Global Horizons, Inc., the Ninth Circuit stated that because employers of H-2A workers are required to provide housing, meals and transportation as “material terms and conditions” of their employment, these employers can be liable for such non-workplace matters under Title VII, even if the employers contract with a third party to provide those work benefits. There, two orchard growers hired Global Horizons as their staffing firm to recruit agricultural workers using H-2A visa authorizations. Two of the workers filed a discrimination claim against the growers and Global Horizons, claiming poor working conditions, substandard living conditions, and unsafe transportation based on their race and national origin.

California: New Independent Contractor Test for Domestic Caregivers

March 7, 2019/0 Comments/in HR Alerts /by ManagEase

APPLIES TO

All Employers with CA Independent Contractors Who Are Domestic Caregivers

EFFECTIVE

January 11, 2019

QUESTIONS?

Contact HR On-Call

(888) 378-2456

In Duffey v. Tender Heart Home Care Agency, LLC, the California Court of Appeal recently applied yet another independent contractor test to domestic caregivers who are subject to the Domestic Worker Bill of Rights (DWBR). Specifically, the DWBR states that an employment relationship exists under two possible scenarios. First, employment occurs “when the hiring entity exercises control over the wages, hours, or working conditions of a domestic worker.” The court noted that an employer need only have control over one of these characteristics, not all three. Second, employment is also defined “when a common law employment relationship has been formed.” This is analyzed using the Borello test.

California: Labor Commissioner Challenges Federal Preemption of Meal and Rest Break Rules

March 7, 2019/0 Comments/in HR Alerts /by ManagEase

APPLIES TO

All Employers with CA Employee Truck Drivers Subject to HOS Regulations

EFFECTIVE

February 6, 2019

QUESTIONS?

Contact HR On-Call

(888) 378-2456

California Attorney General Xavier Becerra recently announced that the California Labor Commissioner intended to challenge the Federal Motor Carrier Safety Administration’s (FMSCA) determination that federal hours of service (HOS) regulations preempt California meal and rest period regulations for property-carrying commercial vehicle drivers. Specifically, the FMSCA announced California meal and rest period regulations were incompatible with federal regulations, disrupted interstate commerce, did not offer any safety benefits beyond that already covered by federal law, and were overly burdensome and difficult to regulate. In response, on February 6th, the California Labor Commissioner filed a petition with the Ninth Circuit Court of Appeal, requesting that the circuit court review and reverse the FMSCA determination.

California: Payroll Service Providers Not Liable for Payroll Violations

March 7, 2019/0 Comments/in HR Alerts /by ManagEase

APPLIES TO

All Employers with CA Employees

EFFECTIVE

February 7, 2019

QUESTIONS?

Contact HR On-Call

(888) 378-2456

In Goonewardene v. ADP, Inc., the California Supreme Court recently stated that a third-party payroll service provider could not be held liable for errors the service made in issuing paychecks to employees of the company it provides service to. There, an employee sued both her employer and ADP, its payroll processing service, for wage and hour violations, including failure to provide adequate documentation and records, wrongful termination, breach of contract, and negligence, among others. The former employee argued that she was a third-party beneficiary of the contract between ADP and her employer, and that ADP had been negligent in providing payroll services for her benefit.

Indiana: State Supreme Court Sheds Light on Independent Contractor Test for On-Demand Services

March 7, 2019/0 Comments/in HR Alerts /by ManagEase

APPLIES TO

All Employers with IN Employees

EFFECTIVE

January 23, 2019

QUESTIONS?

Contact HR On-Call

(888) 378-2456

In Q.D.-A, Inc. v. Indiana Department of Workforce Development, the Indiana Supreme Court examined whether or not a large vehicle transportation driver qualified as an independent contractor. Q.D.-A is a transportation matching service that coordinates independent drivers with manufacturers in order to transport large recreational or non-towable vehicles. Q.D.-A required the driver to attend a two-day training orientation on federal regulations and complete a driving test, but the driver was otherwise able to refuse jobs, work with other competitors, and negotiate his own pay.

Massachusetts: Denying Lateral Transfer May be Considered Discriminatory

March 7, 2019/0 Comments/in HR Alerts /by ManagEase

APPLIES TO

All Employers with MA Employees

EFFECTIVE

January 29, 2019

QUESTIONS?

Contact HR On-Call

(888) 378-2456

In Yee v. Massachusetts State Police, the state Supreme Judicial Court stated that by not granting Yee, a self-identified Chinese Asian-American, a lateral transfer from one Troop to another in the State Police, while granting the same transfer to Caucasian employees, his employer caused an “adverse employment action.” Specifically, Yee claimed the transfer would have afforded him additional opportunities for compensation for working overtime and on details. The Court stated that an adverse employment action is not limited to denial of a promotion, but includes a material difference in the terms, conditions, or privileges of employment.

Missouri: LGBTQ Protections Expanded for Sex Stereotyping

March 7, 2019/0 Comments/in HR Alerts /by ManagEase

APPLIES TO

All Employers with MO Employees

EFFECTIVE

February 26, 2019

QUESTIONS?

Contact HR On-Call

(888) 378-2456

In Lampley v. Missouri Comm’n on Human Rights, the Missouri Supreme Court stated that sex stereotyping can form the basis of a sex discrimination claim under the Missouri Human Rights Act (MHRA). There, an employee claimed he was discriminated against because his behavior and appearance did not evoke sufficient “maleness” for his employer. Although the employee acknowledged he was gay and the MHRA does not protect sexual orientation, the Court stated that “an employee who suffers an adverse employment decision based on sex-based stereotypical attitudes of how [one] should act can support an inference of sex discrimination.” Moreover, “sexual orientation is incidental and irrelevant to sex stereotyping.” Employers must take care to ensure equal treatment of employees, regardless of stereotypes associated with one’s biological sex.

Action Items

Have anti-harassment and discrimination policies reviewed for compliance.
Have employees trained on sexual harassment and discrimination prevention.
Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.