Federal Employment Law Update — March 2019

Federal Employment Law Update

2018 EEO-1 Portal Opening for Component 1 Data

On March 18, 2019, the Equal Employment Opportunity Commission (EEOC) opened the EEO-1 online portal to receive 2018 EEO-1 Component 1 data (which is race, ethnicity, and gender data). The portal is open from March 18 to May 31, 2019.

The EEOC is in the process of developing its collection of Component 2 EEO-1 pay data, in light of the court’s order in National Women’s Law Center, et al., v. Office of Management and Budget, et al., Civil Action No. 17-cv-2458 (TSC), where the court vacated the federal Office of Management and Budget’s stay on Component 2 collection. According to the EEOC, it will provide further information about Component 2 collection as soon as possible.

See the EEO-1 Survey website

DOL Issues New Opinion Letters

On March 14, 2019, the U.S. Department of Labor’s Wage and Hour Division (WHD) announced that it issued the following three new opinion letters:

  • FLSA 2019-1: Wage and recordkeeping requirements for residential janitors and “good faith” defense.
  • FLSA 2019-2: Compensability of time spent participating in an employer-sponsored community service program.
  • FMLA2019-1-A: The obligation to designate FMLA-qualifying leave and prohibition on expanding FMLA leave.

An opinion letter is an official, written opinion by the WHD on how a particular law applies in specific circumstances presented by the person or entity requesting the letter.

The WHD encourages the public to submit requests for opinion letters to the WHD. A request for an opinion must include a representation that the opinion is not sought by a party in a WHD investigation, its representative, or any third party acting on its behalf; or by a party, its representative, or any third party acting on its behalf for use in any litigation that was initiated prior to the submission of the opinion letter request. The WHD will exercise discretion in determining whether and how it will respond to each request.

USCIS Revises Form I-539

On March 8, 2019, the U.S. Citizenship and Immigration Services (USCIS) published a revised Form I-539, Application to Extend/Change Nonimmigrant Status. The USCIS will reject any Form I-539 with an edition date of 12/23/16 or earlier that is received after close of business on March 21, 2019. Starting on March 22, 2019, the USCIS will only accept the revised Form I-539 with an edition date of 02/04/19.

The revised Form I-539 includes the following significant changes:

  • Every co-applicant included on the primary applicant’s Form I-539 must submit and sign a separate Form I-539A, which will be available on the Form I-539 webpage on March 8. Parents or guardians may sign on behalf of children under 14 or any co-applicant who is not mentally competent to sign.
  • Every applicant and co-applicant must pay an $85 biometric services fee, except certain A, G, and NATO nonimmigrants as noted in the new Form I-539 instructions published on March 8.
  • Every applicant and co-applicant will receive a biometric services appointment notice, regardless of age, containing their individual receipt number. The biometric services appointments will be scheduled at the Application Support Center (ASC) closest to the primary applicant’s address. Co-applicants who wish to be scheduled at a different ASC location should file a separate Form I-539.

The USCIS also published a new Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status, on March 8 (replacing Supplement A of Form I-539).

Read more here

Department of Labor Issues Notice of Proposed Rulemaking to Update Overtime Regulations

On March 7, 2019, the U.S. Department of Labor (DOL) announced a Notice of Proposed Rulemaking (NPRM, RIN 1235-AA20) to update the current overtime regulations. Presently, employees with a salary below $455 per week ($23,660 annually) must be paid overtime if they work more than 40 hours per week. Workers making at least this salary level may be eligible for overtime based on their job duties. The NPRM proposes to increase this salary threshold, using current wage data and projected to January 1, 2020, from $455 to $679 per week (equivalent to $35,308 annually).

The NPRM also maintains overtime protections for police officers, fire fighters, paramedics, nurses, and the following laborers:

  • Non-management production-line employees and non-management employees in maintenance.
  • Carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, and construction workers.

However, the NPRM does not propose automatic adjustments to the salary threshold.

The DOL encourages any interested members of the public to submit comments about the proposed rule electronically. Once the rule is published in the Federal Register, the public will be able to submit comments for 60 days. Of note, the approximate date the DOL anticipates this rule to be effective is January 2020.

Read about the proposed rule

Updated FAQs on ACA Reporting

On March 2, 2019, the Internal Revenue Service updated its questions and answers on information reporting by health coverage providers (Section 6055) in the following areas:

More information is also available on the agency’s page Information Reporting for Providers of Minimum Essential Coverage.

See the FAQs

EEO-1 Survey Stay Lifted and Pay Data Collection Re-Established

On March 4, 2019, the U.S. District Court for the District of Columbia issued a ruling in National Women’s Law Center v. Office of Management and Budget (Civil Action No. 17-cv-2458) vacating:

  • The Office of Management and Budget’s stay of the Equal Employment Opportunity Commission’s revised EEO-1 form; and
  • “Stay the Effectiveness of the EEO-1 Pay Data Collection,” from the September 15, 2017 Federal Register Notice.

This decision instantly reinstates the EEO-1 pay data collection requirements. In addition to race or ethnicity, gender, and job category information, employers must also collect pay data for the 2018 survey period. The current deadline to submit EEO-1 data is May 31, 2019.

Read the case and 82 Fed. Reg. 43362.

OSHA Electronic Recordkeeping Reminder

The deadline for electronically reporting OSHA Form 300A data for calendar year 2018 is March 2, 2019 and collection began on January 2, 2019.

OSHA published a Final Rule to amend its recordkeeping regulation to remove the requirement to electronically submit to OSHA information from the OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) for establishments with 250 or more employees that are required to routinely keep injury and illness records. Covered establishments are only required to electronically submit information from the OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). The requirement to keep and maintain OSHA Forms 300, 300A, and 301 for five years is not changed by this Final Rule.

Of note, not all establishments are covered by this requirement. Only a small fraction of establishments are required to electronically submit their Form 300A data to OSHA. Establishments that meet any of the following criteria DO NOT have to provide their data:

  • The establishment’s peak employment during the previous calendar year was 19 or fewer, regardless of the establishment’s industry.
  • The establishment’s industry is on this list, regardless of the size of the establishment.
  • The establishment had a peak employment between 20 and 249 employees during the previous calendar year AND the establishment’s industry is not on this list.

Note: These criteria apply at the establishment level, not to the firm as a whole.

See more on the OSHA Injury Tracking Application website

NLRB Sets Standards Affecting Beck Objectors

On March 1, 2019, the National Labor Relations Board (NLRB) released its decision in United Nurses & Allied Professionals (Kent Hospital) where it ruled that nonmember objectors cannot be compelled to pay for union lobbying. The board majority held that lobbying activity, although sometimes relating to terms of employment or incidentally affecting collective bargaining, is not part of the union’s representational function, and therefore lobbying expenses are not chargeable to Beck objectors. The ruling relies on relevant judicial precedent holding that a union violates its duty of fair representation if it charges agency fees that include expenses other than those necessary to perform its statutory representative functions.

The majority also held that it is not enough for a union to provide objecting nonmembers with assurances that its compilation of chargeable and nonchargeable expenses has been appropriately audited. Citing the “basic considerations of fairness” standard adopted by the Supreme Court, the NLRB held that a union must provide independent verification that the audit had been performed. Failure to do so violates the union’s duty of fair representation.

The United Nurses case is the board’s decision affecting certain rights of nonmember objectors under the Supreme Court’s decision in Communications Workers of America v. Beck, 487 U.S. 735 (1988). In that decision, the Supreme Court held that private-sector nonmember employees subject to union security who object to the expenditure of their agency fees for activities other than collective bargaining, contract administration, or grievance adjustment can only be compelled to pay that portion of the agency fee necessary to the union’s performance of “the duties of an exclusive representative of employees in dealing with the employer on labor-management issues.”

See the case

Interest Rates for Second Quarter 2019

On February 25, 2019, the Internal Revenue Service (IRS) announced that interest rates will remain the same for the calendar quarter beginning April 1, 2019. The rates are:

  • 6 percent for overpayments (5 percent in the case of a corporation);
  • 5 percent for the portion of a corporate overpayment exceeding $10,000;
  • 6 percent for underpayments; and
  • 8 percent for large corporate underpayments.

Under the Internal Revenue Code, the rate of interest is determined on a quarterly basis. For taxpayers other than corporations, the overpayment and underpayment rate are the federal short-term rate plus 3 percentage points.

Generally, in the case of a corporation, the underpayment rate is the federal short-term rate plus 3 percentage points and the overpayment rate is the federal short-term rate plus 2 percentage points. The rate for large corporate underpayments is the federal short-term rate plus 5 percentage points. The rate on the portion of a corporate overpayment of tax exceeding $10,000 for a taxable period is the federal short-term rate plus 0.5 percent.

The interest rates announced today are computed from the federal short-term rate determined during January 2019 to take effect February 1, 2019, based on daily compounding.

Revenue Ruling 2019-05 announcing the interest rates will appear in the Internal Revenue Bulletin 2019-11, dated March 11, 2019.

Read the press release

Tipped Employees Guidance

On February 15, 2019, the U.S. Department of Labor issued Field Assistance Bulletin No. 2019-2 concerning tipped employees. The guidance also provides further information about the department’s November 2018 opinion letter eliminating the 80/20 rule.

See the guidance

FLSA Reference Guide

In February 2019, the U.S. Department of Labor’s Wage and Hour Division (WHD) launched an enhanced electronic version of the Handy Reference Guide to the Fair Labor Standards Act. This online tool provides basic Fair Labor Standards Act information and links to other resources, and modernizes compliance assistance materials for employers and workers.

See the guide