As the longest government shutdown in history has come to an end, the U.S. Equal Employment Opportunity Commission recently released guidance for employers faced with upcoming EEO-1 submission deadlines and responding to charges of discrimination filed during the government shutdown.

For 2018 EEO-1 submissions, the EEOC announced that it has postponed the opening of the EEO-1 survey until early March 2019 and that it will extend the deadline to submit EEO-1 data until May 31, 2019. The EEO-1 is an annual survey that requires all private employers with 100 or more employees and federal government contractors or first-tier subcontractors with 50 or more employees and a federal contract, sub­contract or purchase order amounting to $50,000 or more to file the EEO-1 report. The EEOC is encouraging employers who are required to submit an EEO-1 to continue to check back on the EEOC website in the coming weeks for an updated schedule for submissions.

If an employer received a notice of a charge of discrimination while the government was shutdown, between December 22, 2018 and January 28, 2019, the EEOC implemented a blanket due date for all position statements responding to such charges to be uploaded to the EEOC portal. The EEOC is requiring all positions to be uploaded to the EEOC portal by March 1, 2019. The EEOC’s Q&A Guidance explains the automatic extension granted for due dates and the new submission date of March 1, 2019.

Finally, the EEOC reiterated in its guidance that the government shutdown does not affect the 90-day time period a charging party has for filing a lawsuit based on a Notice of Right to Sue. Once a charging party receives a Notice of Right to Sue, a lawsuit must be filed within 90 days.

Social Media NetworksNowadays we are constantly bombarded with news of events that arouse our political views. Social media both perpetuates these events and provides a platform for virtually anyone to express their social and political views. Political views are often visible to coworkers, including management and supervisors who have the discretion to make termination decisions. What difference might this make for South Carolina employers?

South Carolina statute S.C. Code §16-17-560 makes it a crime to “discharge a citizen from employment or occupation . . . because of political opinions or the exercise of political rights and privileges guaranteed to every citizen by the Constitution and laws of the United States or by the Constitution and laws of this State.” In certain circumstances, an employee may bring a lawsuit against their employer for wrongful termination when this section is violated. Continue Reading When Social Media, Politics and the Workplace Collide

Lactation Room Sign

We recently highlighted the “Act to Establish Pay Equity,” which was spearheaded by the SC Women’s Rights & Empowerment Network (WREN).

WREN is also supporting the “South Carolina Lactation Support Act” that expands upon the Pregnancy Accommodations Act by providing nursing employees with the right to break time and private space to express milk in their workplaces. A key provision of the Lactation Support Act is that it would apply to all employers, regardless of the number of employees. Continue Reading What Would the Lactation Support Act Mean for SC Employers?

Coffee mug and iPad
Join us for our 2019 Employment Law Series where HSB’s Employment Law team will present a complimentary one-hour breakfast session each month on key employment law topics. Each seminar will provide a detailed update on the important issues and trends impacting South Carolina’s employers. Presentations will be live-streamed to our offices in Charleston, Columbia, Florence and Greenville each month so you can attend in the city of your choice.

Chris Gantt-Sorenson will kick off this year’s program on February 28th with a discussion on proposed legislation impacting South Carolina employers, including a primer on South Carolina’s Pay Equity Act, Lactation Support Act, Background Checks and Ban the Box legislation. Continue Reading New Employment Law Series Announced

Equal pay

South Carolina’s Women’s Rights & Empowerment Network (WREN) spearheaded two pieces of legislation, a pay equity act and a lactation act, for the South Carolina 2019 Legislative Session. “An Act to Establish Pay Equity,” was announced in a press conference held at the Statehouse on Monday, January 14, 2019. Legislators intend to introduce the bill this week. The “South Carolina Lactation Support Act,” bill 3200, was introduced on January 8, 2019 with bipartisan support and will be reviewed in a separate blog posting.

“An Act to Establish Pay Equity” is a comprehensive bill addressing the following three categories:

  • pay equity across all protected classes, not just sex or gender;
  • prohibition against employers’ inquiries into wage history; and
  • prohibition against an employers’ actions meant to restrict employees from discussing their wages with other employees.

Regarding pay equity, the proposed bill prohibits payment of lower wages for comparable work due to race, religion, color, sex (including gender identity and sexual orientation), age, national origin, or disability status. The bill evaluates comparable work to include skill, effort, responsibility and work performed under similar working conditions. The bill excludes any reason based on a bona fide exception such as a seniority system (but for time spent on parental, family or medical leave), a merit based system, a pay system determined by quantity or quality, or any other justifiable reason other than race, religion, color, sex (including gender identity and sexual orientation), age, national origin, or disability status. Bona fide factors must be shown to be “job-related with respect to the position in question,” “consistent with business necessity,” and the sole reason for the pay differential. An alternate method for meeting the same business purpose that does not create the pay differential that an employer refuses to adopt will preclude the employer from relying on the bona fide business reason for the differential.

The proposed bill makes it unlawful for an employer to require wage history on an application, require employees to provide their wage history as a condition of employment, or rely on prior wages to determine what wage will be offered to the employee, sign any waiver of rights to disclose wages or discipline or otherwise discriminate against an employee for discussing wage information with other employees. An employer, having already made an offer of employment with a proposed wage, may rely on wage history to offer a higher wage to the applicant assuming the history is provided by the applicant voluntarily, and/or seek to verify the amount. The bill requires employers to provide the applicable wage ranges to an applicant at the earlier of three instances: upon the applicant’s request; while discussing the applicant’s wage expectations; or at the time of extending an offer accompanied by a wage amount.

According to WREN, South Carolina would be the first state in the nation to pass a bill containing all of the protections in the proposed pay equity act. Massachusetts passed an almost identical law, An Act to Establish Pay Equity, effective July 1, 2018 but it is limited to sex or gender. Massachusetts’ Act had bipartisan support. Incidentally, Massachusetts statistics indicate that women earn 84 cents on the dollar earned by men, while South Carolina’s 2017 statistics indicate women earn 81 cents on the dollar when compared to men, and less for women of color.

 

The Wage and Hour Division of the U.S. Department of Labor (DOL) held public listening sessions on October 30, 2018 to gather views on the Part 541 white collar exemption regulations, the 2016 “Overtime Rule.” Sessions were held in Atlanta, GA, Seattle, WA, Kansas City, MO, Denver, CO, Providence, RI, and Washington DC. A review of the actual transcripts reveals that many different interests presented comments, including human resource professionals, small business, nonprofits, employees, employers, attorneys, and large businesses. Full renditions of the transcripts by city can be found here.

The DOL posed these questions for addressing at the Listening Sessions: Continue Reading Key Takeaways from the Recent Overtime Rule Listening Sessions

Haynsworth Sinkler Boyd’s Employment Law Group is pleased to announce the schedule for our upcoming Employment Law Seminars. HR professionals are invited to join us for a program that will cover a number of current topics in employment law. These complimentary seminars have been submitted for 3.0 hours of SHRM, HRCI and CLE continuing education credits.

Our speakers will present on the following topics:

  • Tips on Implementing a Different Approach to Harassment & Discrimination in the Workplace
  • Aging Workforce
  • Immigration Law Update
  • Critical Conversations: Employee Assistance Programs
  • Concerted Activity & Other News from the NLRB
  • Key Elements to Creating a “Culture of Safety”
  • Data Theft: What to Do When an Employee Steals Company Information

Join us for a seminar in a location near you:

October 23 – North Charleston
1:00 pm – 5:00 pm
Click here for agenda, details and to register.

October 24 – Columbia
8:30 am – 12:00 pm
Click here for agenda, details and to register.

December 4 – Myrtle Beach
8:30 am – 12:00 pm
Click here for agenda, details and to register.

December 5 – Florence (co-sponsored with Pee Dee SHRM)
8:30 am – 12:00 pm
Click here for agenda, details and to register.

Please contact Keely Yates for additional information.

It is no secret that more U.S. workers are electing to put off retirement and remain in the workforce longer. Given the current labor shortage (lowest unemployment rate in 18 years), this is great news for companies as retaining experienced workers decreases turnover cost and provides immeasurable value in other areas of corporate performance. However, there is a tendency among some companies to “get younger” since experienced workers are often the most highly compensated employees and the newer crop of workers are digital natives that tend to be more technologically fluent.

Given this context, it is unsurprising that age discrimination has become the hot-button workplace discrimination issue in the media (notwithstanding sexual harassment, of course). On June 26, the U.S. Equal Employment Opportunity Commission (“EEOC”) released a report titled The State of Older Workers and Age Discrimination 50 Years After the Age Discrimination in Employment Act. A few of the key takeaways:

  1. Statistics suggest age discrimination is pretty common in today’s workforce. 90% say it is somewhat or very common, and more than 60% of workers 45 and older admitted to witnessing or experiencing age discrimination.
  2. Certain groups are particularly vulnerable – women, minorities and tech workers. In the technology industry, workers are sensitive to the fact that they may be replaced by younger workers – more than 40% of older tech workers are worried about losing their job because they fear age is a liability to their career.
  3. Older workers that lose jobs have much more difficulty finding a new job. This is important because if a worker remains out of work, they may be more likely to institute litigation against their former employer for discrimination.

South Carolina employers are advised to think critically when making decisions about your more experienced workers. Perhaps it is time for your organization to rethink outdated company policies about when a worker should retire, and rethink traditional “succession planning” measures that often disadvantage experienced workers. As more millennials enter the workforce, now is the time to think about how you onboard and train employees regarding stereotypes of the older generation.

The U.S. Department of Homeland Security (Department) recently issued a notice proposing to terminate the international entrepreneur parole program (IE Program) in accordance with Executive Order 13767, entitled Border Security and Immigration Enforcement Improvements, because the IE Program represents an overly broad interpretation of the Department’s parole authority, lacks sufficient protections for U.S. workers and investors, and is not the appropriate vehicle for attracting and retaining talented international entrepreneurs. Continue Reading Proposed Termination of International Entrepreneur Parole Program

According to the Centers for Disease Control (“CDC”), the United States experiences a flu season each year. With this year’s flu season considered one of the worst since the 2009-2010 pandemic, many employers wish to implement policies to protect the workplace and wonder whether they can implement policies mandating vaccination for their employees. This desire is particularly present in healthcare because those employees are charged with protecting patient safety and more often exposed to patients with compromised immunity. Continue Reading Employer Policies Involving the Flu Vaccine and Discrimination Under Title VII