EEOC

President Trump Says “Not So Fast” — The Future of Overtime, Fiduciary, and Pay Reporting Rules Remains Uncertain Under the Trump Administration

On January 20, 2017, shortly after Donald Trump became the 45th President of the United States, his Chief of Staff, Reince Priebus, issued an Executive Memorandum mandating a 60-day freeze on published federal regulations that have yet to take effect to allow Trump’s appointees time to review the regulations. Although such action is fairly standard during a change of administration, the impact could be significant if certain regulations set to take effect in 2017 are delayed or ultimately replaced.  Regulations potentially affected by the 60-day freeze include the Department of Labor’s (“DOL”) overtime and fiduciary rules, and the Equal Employment Opportunity Commission’s (“EEOC”) EEO-1 pay reporting requirements.

DOL Overtime Rule

In May 2016, the DOL announced significant changes to the overtime rules under the Fair Labor Standards Act (“FLSA”). As we’ve previously blogged about here, the overtime rules mandated that, beginning December 1, 2016, the salary requirement for exempt employees would increase by nearly double – from $23,660 to $47,476 per year.  Under these new rules, employees who earn less than $47,476 would no longer meet the overtime exemption from the FLSA, and would be entitled to overtime compensation for all hours worked over 40 in a workweek.

The new overtime rules made headlines late last year when a federal district court in Texas issued a preliminary injunction enjoining its implementation.  The decision was issued on November 22, 2016, just days before the new rules were set to take effect.

Between the ongoing litigation over the legality of the overtime rules and the recent 60-day regulatory freeze, the future of the overtime rules remains uncertain. Other than publicly advocating a small-business exemption, Trump has remained non-committal about the overtime rules and has not signaled whether he will ask the Department of Justice (“DOJ”) to drop its defense of the matter.  Notably, the DOJ has sought a stay in the ligation while the new administration reconsiders its position.  As a practical matter, this places employers in a difficult position.  Many employers already implemented changes to comply with the new overtime rules in anticipation of the December 1, 2016 effective date, by increasing salaries, reducing workforces, cutting benefits, and changing employees’ schedules.  In addition, the language in the Executive Memorandum could also muddy the waters.  The Executive Memorandum provides for postponing, for 60 days, published regulations that “have not taken effect.”  Employee advocates have argued that, as the effective date for the overtime regulations was December 1, 2016, the Executive Memorandum does not apply.  This hyper-technical reading would likely be rejected by a court.  And, the argument has no practical effect as the rule is enjoined.

DOL Fiduciary Rule

The Executive Memorandum, however, will not stop the fiduciary rule train. It became effective on June 7, 2016.  The fiduciary rule, which is scheduled to be phased in starting April 10, 2017 through January 1, 2018, expands the definition of “investment advice fiduciary” under ERISA to include persons who provide investment advice or recommendations for a fee or other compensation with respect to retirement accounts.  Under the new rule, investment advice includes recommendations regarding the advisability of buying or selling securities or other investment property and recommendations as to the management of securities or other investment property.

Being a fiduciary requires financial professionals to put their clients’ best interests above their own. As a result, financial professionals who earn commissions are required, under the new rule, to provide clients with a Best Interest Contract Exemption disclosing potential conflicts of interest, fees or charges to be paid by the investor, and compensation the fiduciary expects to receive in connection with recommended investments.  The impact of the new rule on the financial services industry is significant due to the potential for lost commissions and the additional expense of complying with the heightened fiduciary standard.

Financial professionals are left to hoping that the new administration will roll back the rule. However, barring extraordinary action by Congress, there may be little that Trump can do on his own as the rule was promulgated through notice and comment rulemaking.  Further, rolling back the rule does not appear to be a high priority. Trump has not taken a position publicly on the fiduciary rule.  However, he generally supports broad roll backs of regulations and, Anthony Scaramucci, one of his key advisors, has publicly promised to repeal the fiduciary rule.  Those in the financial services industry who have already taken steps to comply with the new rules in anticipation of the April 10, 2017 implementation date should continue their efforts until they receive a clear signal from the administration or Congress.

EEOC Revised EEO-1 Form

On September 29, 2016, the EEOC announced approval of a revised EEO-1 form to collect pay data from employers with 100 or more employees beginning with the 2017 report to be submitted by March 31, 2018.   It is unclear what effect, if any, the 60-day regulatory freeze will have on the pay reporting requirements because, technically, the information collection procedures for the form did not have an effective date.  However, as Trump has already appointed a new EEOC Chair, Victoria Lipnic, signs point to a rollback.

The revised EEO-1 form requires certain employers to submit summary pay data, including the total number of full and part-time employees employed during the year in each of twelve pay bands listed for each job category on the EEO-1. Pay data is based on employees’ W-2 forms.  The revised EEO-1 form does not require employers to report individual pay or salaries.  Additionally, employers required to submit an EEO-1 form must report the number of hours worked during the year by employees in each pay band.  According to the EEOC, the purpose of collecting pay data from employers is to allow the EEOC to better assess allegations of pay discrimination, but many fear that providing pay data without context will fuel costly, meritless class action lawsuits.

Many predict that the future of the EEOC’s pay reporting rule is vulnerable under the Trump administration, while others believe that Ivanka Trump’s statements in support of equal pay may not indicate a complete pullback of the pay equity focus. Regardless of whether the 60-day freeze affects the pay reporting requirements, the issue of pay equity will be at the forefront of legal issues facing employers in 2017.  This blog will continue to provide updates as new developments occur.

EEOC Issues First Update on National Origin Discrimination Since 2002

In its first update in 14 years, the U.S. Equal Employment Opportunity Commission (EEOC) issued new Enforcement Guidance on National Origin Discrimination (“Enforcement Guidance”) on November 21, 2016, replacing its 2002 Compliance Manual on National Origin Discrimination. With input from approximately 20 organizations and individuals, the Enforcement Guidance addresses important legal developments over the past 14 years on national origin issues ranging from employment decisions and workplace harassment to human trafficking. READ MORE

Top Ten Employment Regulations or Initiatives Employers Want Trump to Dump or Fix

After the Obama administration’s employee friendly policies, employers will have a wish list of changes they believe a Trump administration would favor.  Here are ten items that should be at the top and why employers want to see action. READ MORE

North Carolina’s “Bathroom Bill” Dealt a Blow as Debate on Transgender Access Continues

On August 26, 2016, a North Carolina federal judge blocked the University of North Carolina (UNC) from enforcing a state law requiring transgender people to use bathrooms and locker rooms corresponding to the sex on their birth certificates.

With the passage of House Bill 2 (HB2) in March 2016, North Carolina became the first state to ban people from using restrooms consistent with their gender identity in government buildings and schools.  News of HB2 stirred up a public outcry, including a Department of Justice lawsuit and the NBA’s decision to relocate the 2017 All-Star game from Charlotte, North Carolina to another location.

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OFCCP’s New Sex Discrimination Regulations Bring Few New Requirements But Highlight Need for Contractors to Revisit Policies and Practices

On June 14, 2016, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) unveiled its final sex discrimination guidelines governing covered federal contractors.  The OFCCP proposed changes to the rule on January 30, 2015 and the official comment period closed on April 14, 2015, following a two-week extension so that it could take comment on the Supreme Court’s pregnancy discrimination decision in Young v. United Parcel Serv., Inc.  The final rules come six months after the expected date on the fall regulatory agency but were released to coincide with the White House Council on Women and Girls first “United State of Women” summit, which was also held on Tuesday. Our coverage of that event can be found here

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Orrick Provides Testimony at EEOC hearing on Promoting Diverse and Inclusive Workplaces in the Tech Sector

On May 18, 2016 the EEOC held a commission meeting to address the topic of promoting diverse and inclusive workplaces in the tech sector. Orrick’s Erin Connell was asked to testify at the meeting and provide examples of the types of diversity initiatives tech companies are using. Watch our blog for updates on workplace diversity and new developments in the equal pay space as they continue to unfold. Included below is the text of Erin’s testimony before the EEOC:

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Equal Pay Day 2016:  Where Are We 20 Years Later?

Today marks the twentieth anniversary of “Equal Pay Day,” which the National Committee on Pay Equity launched as a public awareness event in 1996 to symbolize how far into the year women must work to earn what men earned in the previous year.  In more than 50 years since enactment of the federal Equal Pay Act (“EPA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”), women have made significant progress in the workplace and now make up roughly half of the American workforce.  However, women working full time still earn, on average, 79 cents for every dollar earned by men, and this number has barely moved in over a decade.  That said, it is still not clear that employer bias is to blame for the gap that remains.  Indeed, the pay gap measures only the difference in average earnings between all men and all women; it is not a proxy for pay bias—i.e., the failure to pay women equal pay for equal work.  Eliminating pay bias is important, but focusing heavily on perceived employer bias obscures a much more complex web of factors contributing to the problem of pay differences between men and women.

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“Mind the (Gender Pay Equity) Gap”: The EEOC Holds Hearings on its Proposal to Require Pay Data on the EEO-1 Form

On March 16, the Equal Employment Opportunity Commission heard testimony from a variety of advocacy groups, academics and employer representatives on with regard to its proposed revisions to the EEO-1 adding W-2 pay data. Gary Siniscalco from Orrick provided testimony as an employer representative. Click here for Gary’s testimony.

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Protection for LGBT Workers on the Rise: EEOC Files First Title VII Lawsuits Alleging Sexual Orientation Discrimination

Earlier this month, the EEOC filed its first lawsuits against employers alleging sexual orientation discrimination under Title VII, arguing that Title VII’s protections extend to sexual orientation as a form of gender bias. In the lawsuit against Scott Medical Health Center filed in the U.S. District Court for the Western District of Pennsylvania, the EEOC alleges that a gay male employee was subjected to harassment, including anti-gay epithets, because of his sexual orientation. In the suit against Pallet Companies d/b/a/ IFCO Systems filed in the U.S. District Court for the District of Maryland, the EEOC alleges that a supervisor harassed a lesbian employee because of her sexual orientation, including making numerous comments about her sexual orientation and appearance. The EEOC alleges that the employers violated Title VII, which extends protection to workers who are discriminated against on the basis of their sexual orientation. In both cases, the EEOC takes the position that sexual orientation discrimination necessarily entails treating employees less favorably because of their sex, thus triggering Title VII’s protections.

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Orrick to Provide Testimony on EEOC’s Proposed Revisions to the EEO-1 Report

On March 16, 2016 the EEOC will be holding hearings on its proposal  to expand the EEO-1 report to require employers to provide pay data. Orrick’s Gary Siniscalco was asked to address the hearing to provide employer views on this issue. Watch our Blog for ongoing developments on this issue and  new developments in the equal pay area as they continue to unfold. The text of Gary’s testimony before the EEOC will be as follows:

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