United States: EEO-1 On Appeal. (Beltway Buzz, August 23, 2019)

Last Updated: August 27 2019
Article by James J. Plunkett

The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what's happening in Washington, D.C. could impact your business.


EEO-1 on Appeal. Earlier this week, the U.S. Department of Justice (DOJ) filed its appeal of the March 4, 2019, district court decision that reinstituted the 2016 EEO-1 wage and hour reporting scheme. The DOJ argued to the U.S. Court of Appeals for the District of Columbia that the plaintiffs did not have standing to bring the suit in the first place because they could not demonstrate harm, and that the district court exceeded its authority by specifically directing the Equal Employment Opportunity Commission (EEOC) to proceed with the collection of information in a particular manner. A coalition of business groups is expected to file an amicus brief, as the concerns of the business community are not addressed by the parties to the litigation. Of course, no matter the eventual result of the appeal, it is not expected to impact the current September 30, 2019, reporting deadline.

Fluctuating Workweek Reg? Since being named acting secretary of labor in July 2019, Patrick Pizzella hasn't wasted any time in moving the U.S. Department of Labor's (DOL) regulatory agenda forward. For example, a regulatory proposal from the DOL's Wage and Hour Division concerning overtime pay and fluctuating workweeks took a giant step forward this week when it was sent to the Office of Information and Regulatory Affairs (OIRA) for review. The proposal, which had previously been categorized as a "long-term action," is intended to "grant employers greater flexibility to provide additional forms of compensation to employees whose hours vary from week to week." Though we don't know how long the OIRA review process will take, we could see a notice of proposed rulemaking on this matter in a matter of weeks, even though we weren't expecting anything until the spring of 2020. Alfred B. Robinson, Jr., has the details.

DOJ on LGBTQ. Representing the EEOC, this week the DOJ filed its brief in a high-profile case that the Supreme Court of the United States will hear this term concerning transgender protections in the workplace. Though as a party to the case, the EEOC maintained that Title VII of the Civil Rights Act of 1964 prohibits discrimination against transgender workers, the DOJ's brief argues that "Title VII's prohibition on 'discriminat[ion] * * * because of * * * sex,' 42 U.S.C. 2000e-2(a)(1), does not bar discrimination because of transgender status." Oral argument in the case will take place on October 8, 2019, along with two other consolidated cases that address whether Title VII bars discrimination based on sexual orientation. Of course, the Buzz will be watching to see how these cases impact the political prospects of the Equality Act, which passed the U.S. House of Representatives in May 2019.

Unions for All. Building on its Fight for $15 campaign, this week the Service Employees International Union (SEIU) launched a new program: Unions for All. By its very terms, the program aims to increase union membership rolls. To do so, the SEIU advocates for sector- or industry-wide bargaining that would establish master contracts covering multiple employers within the same industry. The plan would also remove National Labor Relations Act preemption in order to allow states to enact their own labor laws. The Buzz expects to report more on the Unions for All campaign, especially as we approach the 2020 elections.

The Footnote That Keeps on Giving the Whole Year. The Buzz has been tracking the DOL's rulemaking that would clarify what types of remuneration must be included in the regular rate for purposes of calculating employees' overtime pay. It is perhaps no surprise that the DOL is undertaking this effort, as stakeholders remain confused about the regular rate. Indeed, this confusion is evident in a recent U.S. Court of Appeals for the Third Circuit ruling on whether incentive bonus payments made by third parties must be included in the regular rate. The court held that "incentive bonuses provided by third parties may or may not be remuneration for employment, depending on the understanding of the employer and employee." Even more interesting is that as part of its reasoning, the court cited to a rather unique authority (at footnote 6) for this proposition:

As for common sense, we cite no less an authority than Clark W. Griswold. In the classic movie National Lampoon's Christmas Vacation, the plot revolves around Clark's anxious anticipation of his Christmas bonus. See National Lampoon's Christmas Vacation . . . (Really, you should see it.). When the regular bonus does not arrive and instead Clark receives a jelly-of-the-month club membership, he berates his boss, saying, "Seventeen years with the company, I've gotten a Christmas bonus every year but this one. You don't want to give bonuses, fine. But when people count on them as part of their salary, well[.]" Id. Unlike the Christmas lights on his house, Clark doesn't seem to be overly bright, but he at least understands how a course of dealing can lead to an expectation that could be viewed as a meeting of the minds about remuneration for employment. In other words, it is common sense that labels alone do not control. And, of course, the required agreement between employer and employee need not be explicit. It may be implied through an employer's significantly facilitating regular compensation that reaches the employee. Walling v. Richmond Screw Anchor Co., 154 F.2d 780, 784-85 (2d Cir. 1946). Whether an agreement is fairly implied is discussed further herein. See infra at II.B.

As a fan of the Vacation movies, the Buzz thinks that this is a pretty effective argument. And at least the court didn't cite Cousin Eddie (hat tip to Vin Gurrieri).

The Buzz will be on vacation next week but will return on September 6.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions