The updated EEO-1 Component 1 reporting procedures for third-party human resource organizations which include Professional Employer Organizations (PEOs) were to go immediately into effect. Per the EEOC, “in response to NAPEO’s concerns regarding additional time for PEOs and their client employers to comply with the updated procedures for third-party human resource organizations, please be advised that PEOs and their client employers will have through Tuesday, June 21, 2022 to submit and certify 2021 EEO-1 Component 1 reports.”
No Surprise: EEOC Charges for COVID Claims
Since the beginning of the pandemic through the end of 2021, the EEOC received roughly 6,000 COVID-related charges. Additionally, claimant made over 2,700 vaccine-related charges, most of which were in 2021 when vaccines became widely available.
ADA-related charges made up over 60% of the COVID-related charges. These type of charges relate to telework accommodations, terminations and other adverse actions against employees who contracted COVID. The EEOC has brought at least three lawsuits related to disability bias. One suit related to denial of telework accommodations. The other two suits alleged that an employer discriminated against those with disabilities and deemed them to be more vulnerable to serious illness if they were to contract COVID-19.
DOJ Publishes Website Access Rule
On March 18, 2022, the DOJ published “Guidance on Web Accessibility and the ADA.” This guidance offers little assistance on whether and under what circumstances commercial websites need to be made accessible and what it means to be “accessible.” As a result, expect ADA access litigation to continue.
The guidance has 5 parts: (1) “Why Website Accessibility Matters”; (2) “Examples of Website Accessibility Barriers”; (3) “When the ADA [Americans with Disabilities Act] Requires Web Content to Be Accessible”; (4) “How to Make Web Content Accessible to People With Disabilities”; and (5) “Web Accessibility for People With Disabilities is a Priority for the Department of Justice.”
Be sure your website complies with this new guidance. If you are unsure or need assistance, we can help!
I-9 Temporary Rule Ends
Employers who accepted expired documents between May 1, 2020, and April 30, 2022 have until July 31, 2022, to update their Forms I-9 for active employees with unexpired identity documents. To do so, employees must present an unexpired document that establishes identity. This document may be the renewed “List B” document they originally presented, a different unexpired “List B” document, or an unexpired “List A” document. Employers should record the title of the new document, issuing authority, document number, and expiration date in the “Additional Information” field in Section 2 of the Form I-9, and then initial and date the changes.
11th Circuit: Service Fee is not a Tip
In Compere v. Nusret Miami, LLC, 2022 U.S. App. LEXIS 7293 the Eleventh Circuit held that a restaurant’s mandatory 18% service charge did not constitute a “tip” under the FLSA and therefore was properly applied toward satisfying the FLSA’s employee wage requirements.
DOL regulations defining what constitutes a “tip” expressly provide that mandatory service charges are not tips. The central characteristic of a tip is customer discretion: If the customer decides whether to leave a gratuity, and if so the amount of that gratuity, then it is considered a tip under FLSA regulations. Conversely, if the employer imposes a fee that the customer has no choice but to pay (unless, for example, the employer waives the fee to resolve a complaint about the service provided), the fee is not a tip and the employer may use it to satisfy its wage obligations.
House Passes Hairstyle Bill
The U.S. House of Representatives has passed a bill (H.R. 2116) that would prohibit “discrimination based on a person’s hair texture or hairstyle if that style or texture is commonly associated with a particular race or national origin.” Specifically, the bill prohibits this type of discrimination against those participating in federally assisted programs, housing programs, public accommodations, and employment. Under the bill, hair texture or protective hairstyles, including braids, locs, twists, or bantu knots, would be given federal protection from discrimination.
The bill goes to the Senate for consideration.
Watch Out Healthcare Industry!
A recent OSHA memorandum outlines an initiative directed towards hospital and assisted living facilities that provide care to or handle COVID-19 patients. The initiative will last from March 9, 2022 to June 9, 2022 to audit these facilities to confirm that they are eliminating the hazards of COVID-19. This means that OSHA my randomly audit healthcare facilities during this time.
Written by: Gordon M. Berger, Partner