FLSA

EEOC Provides Second Bite of the Apple on EEO-1 Report Proposal

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The EEOC has provided a second chance to comment on its proposed revisions to the EEO-1 form.  The revised proposal does not change the EEOC’s insistence on collecting pay and hours worked data and does not fully respond to employers’ concerns regarding the burden and usefulness of collecting the data.  Rather, the EEOC revised the report to change the due dates to coordinate reporting of demographic and additional data beginning in March 2018.  The comment period for the revised proposal closes August 15, 2016.

The EEOC’s efforts arise from the government’s larger efforts to enforce pay equity through a series of reporting, enforcement and voluntary initiatives.  This reporting initiative follows a now-abandoned effort by the Office of Federal Contract Compliance Programs (OFCCP) to obtain pay data in an equal pay report.  EEOC has joined with OFCCP to collect and share pay data to bolster its reporting and enforcement efforts.

On January 29, 2016, the EEOC asked the Office of Management and Budget to approve a change to the EEO-1 form.  As discussed in more detail here, EEOC proposed that beginning in September 2017, EEO-1 filers with 100 or more employees would be required to submit EEO-1 data to include aggregated W-2 pay and hours worked data.  The Agency scheduled hearings and invited various stakeholders including Orrick’s Gary Siniscalco to testify regarding the proposal.  Orrick’s testimony can be found here. READ MORE →

Take Your Pick: E.D.N.Y. Decision Offers Guidance for Plaintiffs and Defendants Alike on How to Handle “Picking Off” Attempts in FLSA Collective Actions

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“Sometimes surrender is the best option.” That is how Judge Raymond J. Dearie of the Eastern District of New York begins his opinion in Anjum v. J.C. Penney Co., Inc., before denying J.C. Penney’s motion to dismiss a putative Fair Labor Standards Act (FLSA) collective action based on the company’s offer to pay the claims of four named plaintiffs with offers of judgment under Federal Rule of Civil Procedure 68—a strategy often referred to as “picking off.” Even though the court rejected J.C. Penney’s picking off attempt in this case, the judge’s opinion in Anjum recognizes the validity of this tactic and provides some practical lessons for defense counsel looking to successfully pick off an FLSA collective in the Second Circuit.

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