Category Archives: Recordkeeping

OMB Stays Use of New EEO-1 Form

In 2016, the Equal Employment Opportunity Commission (EEOC) proposed and then approved a new EEO-1 Form for the collection of certain workforce data. In particular, the new form would require all employers with 100 or more employees, and federal contractors with 50 or more employees, to now annually report certain pay and hours worked data, in addition to data regarding workforce ethnicity, race, and gender. This new form was set to become effective with a March 31, 2018, filing date deadline.

The required submission of compensation data was received by employers with expected controversy. In addition to the increased administrative burden, employers recognized that the compensation data could be used by the EEOC to charge and investigate allegations of discriminatory practices.

Well, those employer concerns are now tabled. On August 29, 2017, the Office of Management and Budget (OMB), issued a Memorandum to the EEOC Acting Chair, Victoria Lipnic, stating that OMB is “initiating a review and immediate stay of the effectiveness of those aspects of the EEO-1 form that were revised on September 29, 2016.” In doing so, OMB noted that the EEOC had released data file specifications for employers to use in submitting the new data, but these specifications were not part of the prior public comment process and were not accounted for in previous burden estimates.  Further, the OMB Memorandum stated:

OMB has also decided to stay immediately the effectiveness of the revised aspects of   the EEO-1 form for good cause, as we believe that continued collection of this information is contrary to the standards of the PRA (Paperwork Reduction Act).  Among other things, OMB is concerned that some aspects of the revised collection of information lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues.

So for now employers should continue to use the prior EEO-1 form, rather than the new form. The March 31, 2018, filing deadline remains the same.

Takeaway: OMB has stayed indefinitely the EEOC’s use of its new EEO-1 form. Employers should instead continue to submit data under the prior form.

For Whom the Statute Tolls: A Nuance in the Minnesota Human Rights Act Important to Employers

A distinguishing characteristic of employment discrimination claims in their short statute of limitations – for Minnesota Human Rights Act claims the statute is only 12 months. Defamation claims are two years and tort and breach of contract claims are six years, so a one year limitation period is very favorable to employers. Doubtless, the Minnesota Legislature (like Congress with Title VII and its 300 day limitation period) saw employment discrimination claims as volatile and problematic enough to set a short time to make a claim. And many a claim has fallen on a count to the 365th day between the alleged discriminatory act and the filing of a charge.

A recent Minnesota Supreme Court case highlights a nuance to the hard and fast rule of 365 days. There is built into the statute a tolling period for any internal arbitration process or “conciliation”:

The running of the one-year limitation period is suspended during the time a potential charging party and respondent are voluntarily engaged in a dispute resolution process involving a claim of unlawful discrimination under this chapter, including arbitration, conciliation, mediation or grievance procedures pursuant to a collective bargaining agreement or statutory, charter, ordinance provisions for a civil service or other employment system or a school board sexual harassment or sexual violence policy.  – Minn. Stat. 363.28, subd. 3(b).

In Peterson v. City of Minneapolis, the plaintiff brought an age discrimination claim through an internal report and the defendant employer started an internal investigation under a Workforce Policy that contemplated possible resolution. While the trial courts found otherwise, the Minnesota Court of Appeals and ultimately the Minnesota Supreme Court concluded that the internal process constituted “alternative dispute resolution” of the “conciliation” type that suspended the statute. While there was no neutral involved or actual mediation discussions, the Court found that the intentions of the Workforce Policy and possibility of resolution constituted “conciliation” under the tolling provision of the statute.

For Minnesota Employers, this means that the protection provided by the short statute of limitations can be affected by an internal “alternative dispute resolution” process. To offset this potential uncertainty, either there should be no alternative dispute process as defined by Peterson as part of the internal investigation or, if there is, there should be a distinct end so the added tolled period can be accurately calculated. The statute has certain reporting provisions as well.

Takeaway:  Like a referee in a Minnesota United football game, the Minnesota Courts will simply add to statute of limitations “regulation time” any tolled period. Minnesota Employers doing internal investigations should be savvy to this and consult with legal counsel about how best to know if a process likely tolls the one year period or design the process so there is no tolling or its impact is short.

Reminder: New I-9 Form Beginning January 22, 2017

Happy New Year! As a reminder of a previous post, employers must use the new I-9 form beginning January 22, 2017. A copy of the original post is below:

On November 14, 2016, the U.S. Citizenship and Immigration Services (USCIS) published a new Form I-9. The following are key changes in the revised form:

  • The new form is available in paper or hardcopy form or in a fillable computer form.
  • Completion of the form on a computer is now enhanced by prompts, drop-down menus and calendars.
  • While this new “smart” form makes completion on a computer easier, the form as provided cannot be electronically signed. Instead, it must be printed for signature.
  • The instructions for completion have been separated from the form itself. Employers should not forget to make the instructions available to employees when they are completing Section 1.
  • The form is a bit longer. The reformatting created a new “Additional Information” space in Section 2 in which employers can note comments that were previously squeezed into margins.
  • A separate page has been created for the preparer and/or translator certification and may be completed by multiple individuals.

Beginning January 22, 2017, employers must only use the new form. In the meantime, employers may use either the prior or new version.

Takeaway: The USCIS has published a new Form I-9 which MUST be used as of January 22, 2017. Employers should familiarize themselves with the new form and plan for implementation.

New Form I-9 Released

On November 14, 2016, the U.S. Citizenship and Immigration Services (USCIS) published a new Form I-9. The following are key changes in the revised form:

  • The new form is available in paper or hardcopy form or in a fillable computer form.
  • Completion of the form on a computer is now enhanced by prompts, drop-down menus and calendars.
  • While this new “smart” form makes completion on a computer easier, the form as provided cannot be electronically signed. Instead, it must be printed for signature.
  • The instructions for completion have been separated from the form itself. Employers should not forget to make the instructions available to employees when they are completing Section 1.
  • The form is a bit longer. The reformatting created a new “Additional Information” space in Section 2 in which employers can note comments that were previously squeezed into margins.
  • A separate page has been created for the preparer and/or translator certification and may be completed by multiple individuals.

Beginning January 22, 2017, employers must only use the new form. In the meantime, employers may use either the prior or new version.

Takeaway: The USCIS has published a new Form I-9 which MUST be used as of January 22, 2017. Employers should familiarize themselves with the new form and plan for implementation.

Proposed Changes to EEO-1 Report Would Seek Compensation Data

On February 1, 2016, the Equal Employment Opportunity Commission (EEOC) published a notice regarding a proposed revision of the Employer Information Report, otherwise known as the EEO-1 Report.  The proposed revision would result in employer submission of workforce compensation data.  According to the EEOC, this access to pay data would allow the agency to identify and combat pay discrimination.

The current EEO-1 Report requires all employers with 100 or more employees, and federal contractors with 50 or more employees, to annually report data regarding workforce ethnicity, race and gender.  According to charts published with the proposed revision, approximately 67,000 EEO-1 Reports are submitted each year.

If the proposed revision is adopted, beginning as of the September 30, 2017, filing deadline, all employers (including federal contractors) with 100 or more employees would submit pay data. The EEOC estimates that about 61,000 reports will be required to make this additional submission.  Federal contractors with 50 to 99 employees (approximately 6,000 reports) would not submit the new pay data, but would instead continue to submit only ethnicity, race and gender information.

On the proposed EEO-1 Report, employers would report Form W-2 earnings across the 12 pay bands used by the Bureau of Labor Statistics in the Occupation Employment Statistics survey.  By collecting hours worked as well, the proposed EEO-1 Report will account for partial-year or part-time employment.  For example, the report might show that a company employs 10 African American men who are Craft Workers in the second pay band ($19,240-$24,439) who worked for a total of 10,000 hours.

The proposed revisions to the EEO-1 Report are open for public comment for a sixty day period ending April 1, 2016.

Takeaway: Assuming the proposed EEO-1 Report revisions become effective, covered employers will be required to report compensation data in 2017.  In the meantime, employers should consider obtaining the advice of legal counsel to independently review their compensation data and address any improper pay disparities.

OSHA Proposes Significant Recordkeeping Changes

Recently, the Occupational Safety and Health Administration, (OSHA) announced a proposed rule concerning injury and illness recordkeeping requirements for employers that would make public employee records about illnesses and injuries.  78 Fed. Reg. 67254 (Nov. 8, 2013).

OSHA Assistant Secretary Dr. David Michaels stated that the proposed rule would require employers with 250 or more employees to electronically submit illness and injury records to OSHA on a quarterly basis.  Further, employers with 20 or more employees in certain industries with high injury and illness rates would have to electronically submit their injury and illness logs to OSHA electronically every year.  OSHA’s intent is to then post the data on its website once personally indentifying information has been removed.

Michaels explained OSHA’s view that the newly proposed rule would allow employers to compare safety records against employers in similar industries.  OSHA also says the other proposed rule will allow workers to know about the safety records of potential future employers.

Employers and business groups have expressed concerns about the proposed rule.  Under current law, employers have to post summaries of illness and injury reports in a common area where employees can see them.  OSHA also currently makes public raw numbers about incidents in workplaces without describing an injury or how it occurred.  Business groups are likely to oppose the proposed rule because employers claim that company-specific raw injury data may be misconstrued or misused as the mere recording of an injury does not tell the entire story about how an injury occurred or whether an employer has a good safety program.

The injury and illness data that is to be made public by the proposed rule won’t include information that explains how the injury occurred, such as whether an employee acted in an unsafe manner or failed to follow the employer’s safety rules.  The incomplete information OSHA intends to make public may allow competitors, plaintiff’s lawyers, unions, and others to distort this information and wrongly label employers as unsafe or as “bad actors.”  Further, given recent problems with federal government’s health care website and database under the Affordable Care Act, it is not much of a stretch to imagine that proprietary or personal information might inadvertently be disclosed to the public.

OSHA’s proposed rule changes will dramatically alter the potential for OSHA citations and fines as well.  Under current law, employers must report the death of an employee, or the in-patient hospitalization of three or more employees, within eight hours of learning of the fatality or hospitalizations.  But employers are not required to immediately report other illnesses or injuries.  Mandatory quarterly reporting of injuries and illnesses will allow OSHA to learn of significant injuries soon enough to get an inspection team to an employer’s facility before the six month statute of limitations for issuing a citation has expired.

Minnesota OSHA (“MN OSHA”) essentially follows OSHA’s recordkeeping requirements.  Thus, it seems likely that any proposed recordkeeping changes adopted by OSHA will also be adopted by MN OSHA for Minnesota employers.

Employers and other interested parties have until February 6, 2014 to submit written comments on the proposed rule.  Employers may also voice their concerns at a public meeting that OSHA will hold in Washington, D.C. on January 9, 2014.  OSHA must take employer comments into consideration before issuing a final rule.

Takeaways:  Employers should pay attention to this proposed rule change on recordkeeping requirements.  Concerned employers may want to consider submitting written comments on the proposed rule, or may want to contact any trade or industry groups they are a part of to consider possible joint comments on the proposed rule.  If the recordkeeping changes are adopted in their current form, employers will need to be even more vigilant to ensure that they have good safety programs in place to reduce the risk of workplace injuries, and to ensure that OSHA recordkeeping is done correctly and timely to minimize the risk of OSHA citations and fines.

Reminder – EEO-1 Reports are Due by September 30

The Equal Employment Opportunity Commission (EEOC) requires that the Employer Information Report (EEO-1 Report) must be filed by September 30, 2013.  Generally, all private employers who are subject to Title VII and have at least 100 employees must file this Report.  Additionally, private employers who have fewer than 100 employees, but are owned or affiliated with one or more other companies, or who have centralized control or management with other companies, such that the group of companies legally is a single enterprise and the enterprise employs at least 100 employees must also file an EEO-1 Report.  Most federal contractors and first-tier subcontractors are also required to file an EEO-1 Report.

The EEO-1 Report requires the disclosure of various types of company information, including federal contractor status, and employment data by job category, race/ethnicity, and gender.  The EEOC prefers that employers file the EEO-1 Report online using the EEOC’s website.  For more information, click here to access the EEOC’s website about EEO-1 Reports.

Takeaway:  It is important for employers covered by the EEO-1 Report filing requirement to pay close attention to the Report and provide accurate data to the EEOC by the September 30 deadline.  Employers who willfully submit false data on the EEO-1 Report are subject to criminal penalties, and those who fail to file are subject to potential legal action by the EEOC that may result in a court order mandating that the employer file a Report.  Moreover, because the Office of Federal Contract Compliance Programs (OFCCP) has increased its scrutiny of EEO-1 Reports while conducting compliance audits of federal contractors and subcontractors, it is more important than ever before that employers submit accurate data.

When Does The Minnesota Government Data Practices Act Apply to Private Employers?

Private employers in Minnesota need to be familiar with personnel record statutes and employee privacy rights.  The Minnesota Government Data Practices Act, a wholly separate and much more demanding set of employee privacy laws that apply to public employers and public employees, is irrelevant to private employers – for the most part.

An exception is for corporations or non-profit organizations under contract with a government entity when following the Data Practices Act is required by the contract.  See Minn. Stat. § 13.05, Subd. 11; see also Minn. Stat. § 13.02, Subd. 11.  By virtue of contracting with the governmental entity (state, county, or a municipality), a private employer may need to respond to certain employee or public personnel data requests based upon the classifications and processes provided in the Data Practices Act.  Typically, the Data Practices Act governs data on individuals (including personnel data) made available to the private employer through the government contract.  Determining whether, how, and to what extent the Data Practices Act may apply to personnel data related to a government contract is a process of careful contract drafting and legal analysis.

Takeaway:  A private employer with a government contract needs to keep in mind possible state Data Practice implications in responding to third party or employee requests for certain contract-related personnel data.  This is an important point in contract drafting, and legal review should be involved to determine whether this unique requirement of the Minnesota Data Practices Act may apply to a private employer.

Do Employers Need To Provide Earnings Statements to Employees?

Minnesota law states that employers must provide each employee with an earnings statement at the end of each pay period.  Minn. Stat. § 181.032.  The earnings statement must include the following information:

  1. The name of the employee;
  2. The hourly rate of pay (if applicable);
  3. The total number of hours worked by the employee (unless the employee is exempt under the Minnesota Fair Labor Standards Act);
  4. The total amount of gross pay earned by the employee during that period;
  5. A list of deductions made from the employee’s pay;
  6. The net amount of pay after all deductions are made;
  7. The date on which the pay period ends; and
  8. The legal name of the employer and the operating name of the employer if different from the legal name.

The employer may provide the earnings statement either in writing or electronic form.  If the employer chooses to provide the earnings statement in electronic form, the employer must provide the employee with access to an employer-owned computer during the employee’s regular working hours to review and print the earnings statement.  Furthermore, if the employee requests that she receive her earnings statements in written form, the employer must comply with that request on an ongoing basis.

Takeaway:  Employers should make sure that their earnings statements include all of the information required under Minnesota law.

EEO-1 Reports Are Due September 30, 2012

The annual EEO-1 Report filing deadline is quickly approaching.  The EEO-1 Report is a compliance survey report mandated by federal statute and regulations.  It requires employers to categorize employment data by race/ethnicity, gender and job category and file a report with the United States Equal Employment Opportunity Commission (EEOC).  Most private employers who have 100 or more employees must file this report, along with private employers with fewer than 100 employees if the company is affiliated with another company and the entire enterprise employs a total of 100 or more employees.  Additionally, most federal government prime contractors or first-tier subcontractors with 50 or more employees and a contract worth $50,000 or more must also file the EEO-1 Report.  The filing deadline for the EEO-1 Report is September 30th.

Remember that is important to correctly answer the question on the EEO-1 Report about whether the employer is a federal government contractor.  Incorrectly answering this question may lead to an audit by the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) of the employer’s affirmative action program.

Takeaway:  Employers should take care to not only file the EEO-1 Report in a timely fashion, but to also carefully complete the Report so that it is accurate.  Inaccurate or incomplete reports may lead to further investigation by the EEOC or the OFCCP, which employers would be wise to avoid if possible.  More information about the EEO-1 filing requirements may be found on the EEOC’s website at www.eeoc.gov/employers/eeo1survey.

EEO-1 Reports Can Trigger OFCCP Audits

Private employers with 100 or more employees are required each year to file an EEO-1 report with the Equal Employment Opportunity Commission’s Joint Reporting Committee.  29 C.F.R. § 1602.07.  Related entities that constitute a single enterprise who together employ at least 100 employees are also required to file.  Generally, the form requires employers to provide summary data as to the gender and race of their workforce in ten broad job categories.

In addition to companies with 100 or more employees, all federal contractors or first-tier subcontractors with 50 or more employees and a single government contract of $50,000.00 or more are also required to file an EEO-1 report.  These are the same threshold number of employees and contract amount that triggers a contractor’s or subcontractor’s obligation to develop an affirmative action plan.  41 C.F.R. § 60-2.1.

Section C of the EEO-1 report form inquires as to whether an employer is such a government contractor or subcontractor in its question 3.  Employers who are contractors at these thresholds should answer the question by checking the “yes” box.  Many times, however, employers who are not government contractors or who do not meet these thresholds rush completion of the EEO-1 form and inaccurately answer this question in the affirmative.  Doing so tells the federal government that the company is a government contractor subject to affirmative action plan requirements.  It should not then be a surprise if the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) notifies the company that it is scheduling an audit of the company’s affirmative action program.

Takeaway:  To avoid miscommunicating government contractor status, employers should carefully complete the annual EEO-1 report.

How To Minimize Potential Liability For Employment References in Minnesota

Minnesota law provides protection to employers who disclose certain types of information in response to requests for employment references.  If an employer stays within the confines of the statute, a current or former employee must make a heightened evidentiary showing to prevail on a lawsuit against the employer related to the disclosure.

The types of information that employers can generally disclose under Minnesota’s employment reference law without an employee’s authorization are:

  1. Dates of employment;
  2. Compensation and wage history;
  3. Job description and duties;
  4. Training and education provided by the employer; and
  5. Acts of violence, theft, harassment, or illegal conduct documented in the personnel record that resulted in disciplinary action or resignation and the employee’s written response, if any, contained in the employee’s personnel record.  (Note: For this type of disclosure to qualify for protection under the statute, the disclosure must be in writing with a copy sent contemporaneously by regular mail to the employee’s last known address).

If the employer has a written authorization from the employee, the employer may also disclose the following types of information about the employee:

  1. Written employee evaluations conducted before the employee’s separation from the employer, and the employee’s written response, if any, contained in the employee’s personnel record;
  2. Written disciplinary warnings and actions in the five years before the date of the authorization, and the employee’s written response, if any, contained in the employee’s personnel record; and
  3. Written reasons for separation from employment.

See  Minn. Stat. § 181.967.

With limited exceptions, in order to maintain a cause of action against an employer for disclosure of the above-listed information, a current or former employee must be able to prove by clear and convincing evidence that:  (i) the information was false and defamatory; and (2) the employer knew or should have known the information was false and acted with malicious intent to injure the current or former employee.

Takeaway:  Employers can minimize potential liability for employment references by limiting their disclosures to include only the information that is authorized under the statute.