Wyche at Work: August 2013 Employment Update

Prepared by Wyche attorneys, Andy Coburn and Ted Gentry
August 2013

EEO-1 Reports Due for Some Employers

Employers that are required to file Form 100, the Employer Information Report EEO-1, have until September 30 to file their annual report with the Equal Employment Opportunity Commission. The report is a compliance survey that requires company employment data to be categorized by race/ethnicity, gender and job category.

The EEOC generally requires employers to file an EEO-1 if

  • They have 100 or more employees;
  • They are owned by or affiliated with another company and the entire enterprise has 100 or more employees; or
  • They are federal contractors or first-tier subcontractors.

Two federal agencies review data compiled in the EEO-1: the EEOC uses the information to support civil rights enforcement and to analyze employment patterns, and the Office of Federal Contract Compliance Programs uses the data to select companies for compliance reviews. In light of these uses, employers should ensure that information reported on the Form EEO-1 is complete and accurate. The EEOC’s 2013 EEO-1 Survey website contains FAQs, fact sheets, and filing information for employers.

Deadline to Update HIPAA Privacy Notices for Health Plans

New HIPAA regulations were issued in January 2013 that require the inclusion of additional information in HIPAA privacy notices. As most employers are aware, employer group health plans are generally required to have a HIPAA privacy notice. For insured plans, the HIPAA privacy notice is typically prepared by the insurance company, but employers should confirm that their insurance company is making the required changes in a timely manner. Employers with self-insured health plans will need to ensure that their plan privacy notice is updated and distributed to plan participants in accordance with the new regulations. Privacy notices must be updated by September 23, 2013.

ACA Marketplace Notice

With open enrollment for health insurance coverage through the Affordable Care Act’s Health Insurance Marketplace set to begin October 1, 2013, the Department of Labor has released temporary guidance concerning the required notice to employees of coverage options available. Most employers (all to which the Fair Labor Standards Act applies) are subject to the notice requirement and must provide the notice to each employee, regardless of plan enrollment status or of part-time or full-time status. Employers should provide the form to current employees no later than October 1, 2013 and to new employees at the time of hire beginning October 1, 2013. The DOL provides model language for the notice:  One model is for employers who offer a health plan and a second model is for employers who do not offer a health plan. The notice can be sent electronically or by first-class mail.

In the same guidance document, the DOL also provided an updated model election notice for group health plans for continuation coverage provisions under the Consolidated Omnibus Budget Reconciliation Act (COBRA). The update includes additional information regarding health coverage alternatives offered through the Marketplace.

EEOC’s Suit against Fast Food Franchise Provides Reminder About Pregnancy Discrimination

Earlier this year, we devoted an article in Wyche at Work to interview guidelines and questions to avoid that would reveal information about an applicant’s protected characteristics. One danger area was pregnancy and family status. A North Carolina employer was reminded that pregnancy and related conditions are protected by federal law when the Equal Employment Opportunity Commission recently charged that his Chick-Fil-A restaurant violated discrimination laws when it refused to hire a female applicant because she was pregnant. According to the complaint, the applicant was six months pregnant when she interviewed for a team member position. During the interview, the restaurant owner allegedly asked questions concerning the stage of her pregnancy, her delivery date, child care arrangements, and anticipated maternity leave. When the owner called the applicant to inform her she would not be hired, he also told her to call back after she had the baby and had childcare in place. The EEOC is seeking back pay, compensatory damages and punitive damages in its lawsuit.

Pregnancy discrimination is prohibited under the Pregnancy Discrimination Act (“PDA”), which requires pregnant employees to be treated the same as other temporarily disabled employees for purposes of leave and participation in benefit plans and health and disability insurance. The PDA provides the following:

  • An employer cannot force a woman to go on leave while she is able to work.
  • An employer cannot single out pregnancy-related conditions for special procedures to determine an employee’s eligibility to work (i.e., if you require employees requesting leave to submit a doctor’s statement, you may require employees with pregnancy-related conditions to submit the same statements).
  • An employer must reinstate pregnant employees on disability leave where other disabled employees are entitled to reinstatement.
  • If an employee is unable to perform her job because of a pregnancy-related condition, she must be treated the same as other temporarily disabled employees. For example, the employer may need to consider modified tasks, alternative assignments, disability leave and unpaid leave. (Note, however, that the Pregnancy Discrimination Act does not require employers to provide special accommodations to pregnant workers even when such accommodations are provided to a defined class of non-pregnant workers with similar limitations pursuant to a facially neutral policy, as we reported in Wyche at Work early this year).
  • The employer must provide insurance benefits for pregnancy-related conditions if benefits are provided for other medical conditions.

In addition to the PDA, employers should also be mindful of possible leave requirements under the Americans with Disabilities Act and the Family and Medical Leave Act. Amendments to the Fair Labor Standards Act require certain employers to provide a break time and a private area for nursing mothers. Please let us know if we can assist with developing or reviewing your policies related to pregnancy and other potential forms of discrimination.

Local Restaurants Ordered to Pay Back Wages

Following an investigation, the Department of Labor’s Wage and Hour Division has ordered two South Carolina Upstate restaurants to pay almost $75,000 in back wages to 13 employees. The WHD found that employees often averaged 60 hours a week but earned below minimum wage and no overtime compensation. In addition, they were forced to pay for uniforms through illegal payroll deductions. The restaurants were also cited for failure to keep proper records.

The investigation was part of the WHD’s enforcement initiative focusing on the restaurant industry in South Carolina, but all employers would be wise to review their wage payment and recordkeeping practices. If we can assist with this review, please let us know.

Supreme Court Ruling Triggers FMLA Update

Following the U.S. Supreme Court’s ruling in United States v. Windsor striking down the portion of the Defense of Marriage Act that denied federal benefits to same-sex spouses, the Department of Labor has updated its guidance to affirm the rights of same-sex spouses under the Family and Medical Leave Act. Fact Sheet #28F:  Qualifying Reasons for Leave under the Family and Medical Leave Act revises the definition of “spouse” to include “a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including ‘common law’ marriage and same-sex marriage.” The revised definition will apply to leave to care for a spouse who has a serious health condition or is an eligible military servicemember with a serious injury or illness.

The fact sheet does not address how same-sex married couples will be affected if they reside in a state that does not recognize same-sex marriage, such as South Carolina. We will keep following this issue and report emerging trends.

If you have any questions about these or other workplace law topics, please contact Ted Gentry.

This update is provided by Wyche for educational and informational purposes only and is not intended and should not be construed as legal advice.


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