May Updates

2019 EEO-1 Data Collection Suspended Until 2021

On May 8, 2020, the EEOC announced that, because of the coronavirus pandemic, the EEOC is delaying collection of 2019 EEO-1 Component 1 data to March 2021. Employers must prepare to report both the 2019 and 2020 data at that time. The EEOC expects to begin collecting the 2020 EEO-3 (local unions) and 2020 EEO-5 (public elementary and secondary school districts) in January 2021. Keep in mind that the EEOC announced in September 2019 that it would not collect EEO-1 Component 2 data going forward; only Component 1 data is currently required to be tracked for employers with 100 or more employees, or federal contractors with 50 or more employees.

EEOC Suspends Issuance of Right-to-Sue Letters During Pandemic

In April, the Equal Employment Opportunity Commission (EEOC) stated that the agency will temporarily suspend issuing right-to-sue letters during the COVID-19 pandemic.  Under normal circumstances, the EEOC issues right-to-sue letters when it finds a violation of relevant statutes.  Upon receipt, the charging party has 90 days to file suit.  EEOC Spokeswoman and Director Kimberly Smith-Brown indicated that this temporary measure is intended to delay the start of the 90-day period, and to allow charging parties to prioritize their health and safety during the pandemic.

9th Circuit: After-Acquired Evidence Permits Bar to Some ADA Claims

On April 17, 2020, in Anthony v. TRAX Int’l, the Ninth Circuit Court of Appeal stated that evidence acquired in litigation (i.e., after an employee’s alleged claim arose) showing that an employee was not a “qualified individual” under the Americans with Disabilities Act (ADA), can bar an ADA claim altogether. There, the employee claimed she was terminated for having a disability and the employer did not engage in the required interactive process.  However, because the employee did not actually have the bachelor’s degree required of her position as was represented on her employment application, she was therefore not a “qualified individual” entitled to protection under the ADA. Specifically, under the EEOC’s two-step qualified individual test, an individual who fails to satisfy the job prerequisites cannot be considered “qualified” under the ADA unless she shows that the prerequisite is itself discriminatory in effect.

9th Circuit: Standalone Background Check Disclosure Can Accompany Other Documents

On April 24, 2020, in Luna v. Hansen & Adkins Auto Transport, Inc., the Ninth Circuit Court of Appeal again reviewed the standalone disclosure requirement for background checks under the Federal Credit Reporting Act (FCRA). Specifically, the court stated that where the standalone disclosure met the requirements of the FCRA, it can be provided contemporaneously with other documents containing notices, waivers, and agreements unrelated to the background check.

Illinois: Businesses Challenge COVID-19 Related Workers’ Compensation Amendment

On April 16, 2020, the Illinois Workers’ Compensation Commission (IWCC) issued an emergency amendment that created a presumption that employees in essential services who become ill with COVID-19 are presumed to have contracted the disease in the workplace, thus qualifying the employee for workers’ compensation benefits.  A coalition of businesses have filed suit to challenge this amendment, alleging that it imposes undue burden on business operations.  On April 23, 2020, the court granted a temporary restraining order, delaying implementation of the emergency amendment until the litigation is resolved.

Indiana: Regulations on Employment of Minors Streamlined

Previously, Indiana employers employing minors were required to follow specific regulations on the permissible timing and number of hours worked, dependent on the minor’s age, school schedule, and permissions granted by the minor’s guardian.  Effective April 1, 2020, the Indiana General Assembly has revised and simplified these regulations.  Employers can review details about the changes on the Indiana DOL’s web page for child labor, including the agency-prepared training document.

In addition to simplifying the requirements for when minors may be scheduled, key changes include elimination of additional break requirements, work permit termination notices, and most written parental permissions.

New York: Prevailing Wage Requirements for Private Construction, Effective 2022

S.7508B/A.9058B implements a new prevailing wage requirement for private construction projects in New York.  The new law applies to projects with construction costs of over $5 million that receive at least 30% financing from public funds, such as direct payments, grants, tax credits and incentives, among other sources.  Exemptions include projects already covered by a collective bargaining agreement, project labor agreement, small residential or school construction, affordable housing, and “brownfields” environmental remediation programs.

In addition to the prevailing wage, owners and developers of a covered construction project must retain original payroll records for six years.  A Public Subsidy Board will be created to oversee rules regarding the definitions of public funds and construction, additional exemptions, and minimum cost thresholds.

Philadelphia, PA: WARN Act Emergency Regulations Issued in Light of COVID-19

Effective April 20, 2020, the City of Philadelphia issued Temporary Emergency Regulations to the Philadelphia WARN Act to address the impact of COVID-19 on business operations.  The WARN Act requires Philadelphia-based employers of 50 or more employees to provide 60 days’ advance notice of permanent closures or transfers of business to workers, their representative, and the city government.

The Temporary Regulations officially confirm that the COVID-19 pandemic constitutes a natural disaster and national emergency.  Therefore, the Philadelphia WARN Act and its advance notice requirements will not apply to temporary closures caused by COVID-19.  Instead, employers must give reasonably practicable notice after the decision to close is made.

Dallas, TX: Federal Court Places Injunction on Citywide Paid Sick Leave

Over the last few years, the city councils of Austin, San Antonio, and Dallas voted to enact local paid sick leave ordinances.  While preliminary injunctions blocked the Austin and San Antonio ordinances from going into effect, Dallas’s paid sick leave became effective August 1, 2019, with the caveat that penalties for general non-compliance would not be assessed until April 1, 2020.

On March 30, 2020, a federal court entered a preliminary injunction, effectively extending the non-enforcement period until the current litigation surrounding the ordinance is resolved.  The legal challenges brought against Dallas and other local sick leave ordinances are still pending.  Dallas, Texas employers should consult with legal counsel before making any changes to paid sick leave policies.

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.

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