Affirmative Action News by Biddle Consulting Group

Department of Labor Request for Information on Overtime Rule

August 4, 2017 by Marife Ramos, PHR, SHRM-CP

Department of Labor Published a Request for Information on Overtime Rule:
Implementation of 2016’s New OT Rule is Still on Hold

In 2016, the Department of Labor’s (DOL) Wage and Hour Division (WHD) revised the regulations on the exemption from overtime pay implemented under the Fair Labor Standards Act for employees in the executive, administrative, professional, and computer job categories. Released in May 2016, one of the provisions of the final rule included the revision of the standard salary level that differentiates exempt employees (i.e., not eligible for overtime pay) to non-exempt employees (i.e., eligible for overtime pay) — from $455 per week to $970 per week. The final rule would make an estimated 4 million American workers eligible for overtime pay. While most employers agree that the salary level for overtime needs to be updated to match inflation (it was last adjusted in 2004), they also believe that the salary threshold under the new rule is too steep and “inappropriately excludes from exemption too many workers who pass the duties test.” Despite the opposition, and in preparation to what seemed to be the inevitable implementation of the new rule, some employers started making adjustments and changes to their policies, employees’ salaries, and hours worked. However, just one (1) week before its December 1, 2016 effective date, the U.S. District Court for the Eastern District of Texas granted an emergency motion preventing the DOL from enforcing the new rule. Hence, as it currently stands, the salary threshold for overtime exemption remains unchanged at $455 per week.

On July 26, 2017, the DOL’s Wage and Hour Division officially published a Request for Information (RFI), Defining and Delimiting the Exemptions for Executive, Administrative, Outside Sales and Computer Employees. The Wage and Hour Division of the Department of Labor stated that “The RFI solicits feedback on questions related to the salary level, the duties test, inclusion of non-discretionary bonuses and incentive payments to satisfy a portion of the salary level, salary test for highly compensated employees, and automatic updating of the salary level tests.” Following are some of the questions that the department is seeking comments and information on (for the full text of the questions, click here):

Would the 2004 salary level and the methodology used to update the salary level in 2004 be an appropriate basis to set the current standard salary level?
Should the regulations set multiple salary levels (e.g., employer size, census region or division, state, etc.)?
Should there be different salary level exemptions for executives, professionals, and administrative?
Should the standard salary level for exemption be based on historical range of the short test salary level, long test salary level, somewhere in between, or on a new methodology? Is it necessary to change the duties test?
At what salary level does the duties test no longer fulfill its historical role in determining exempt status?
Did you make any changes to employees’ salaries and/or hours of work or in any of your company’s policies in anticipation of the 2016 Final Rule? If so, what are the impact of such changes both to the employees and employers?
Can exemption be based solely on a duties test? If so, what would be the elements of a duties-only test?
What are the traditionally-exempt occupations that were excluded from exemption by the 2016 Final Rule? Do employees in these occupations perform more than 20 or 40 percent non-exempt work per week?
Is 10 percent the appropriate cap for permitting non-discretionary bonuses and incentives (including commissions) to satisfy the standard salary level?
Should there be multiple total annual compensation levels for highly-compensated employee (HCE) exemption (e.g., by size of employer, census region/division, state, etc.)?
Should the standard salary level of an HCE’s total annual compensation, in combination with their duties test, be automatically updated periodically?

Comment period is open for 60 days and ends on September 25, 2017.
Comments can be submitted according to the instructions published in the Federal Register at http://www.regulations.gov/

Department of Justice and Big Business Present Opposing Opinions on Title VII Coverage

August 1, 2017 by Phil Akroyd

Many large companies and the Department of Justice (DOJ) have weighed in on a Federal court case, with opposing views on whether discrimination based on sexual orientation should be illegal.

The case is an ongoing one in the 2nd U.S. Circuit Court of Appeals in Manhattan. It involves Donald Zarda, who filed suit against his former employer Altitude Express, and questions whether sexual orientation is included in Title VII’s protections. Zarda was fired by his employer as a skydiving instructor after he told a customer that he was gay.

The companies interested in covering LGBTQ employees under Title VII (including Google, Microsoft, CBS, and Viacom) asked the 2nd Circuit to revisit the lawsuit after a panel of three 2nd Circuit judges dismissed Zarda’s case in April, saying that discrimination against gay workers is not a form of sex discrimination under Title VII of the Civil Rights Act of 1964. Last month, the full court, which can overturn the prior ruling, agreed to review the case.

Following the brief filed to the court by the companies asking to take another look at the case, the Department of Justice responded. The Justice Department filed an amicus brief to the court on Wednesday saying that Title VII of the Civil Rights Act of 1964 does not cover employment “discrimination based on sexual orientation.”

A report at CNN.com described the legal grey area under the previous Presidential administration as follows: “The DOJ under former President Barack Obama had never gone all the way toward unequivocal affirmative support of sexual orientation being covered under Title VII in lawsuits. It simply allowed the Equal Employment Opportunity Commission, the federal agency charged with protecting workers against job discrimination, to make the arguments without incident. Lower Federal courts have been split on this issue for years.”

While the recent opposing opinions are an interesting development in an ongoing case, they also provides some insight into the direction of the current Presidential administration. When campaigning, candidate Trump said he would protect the rights of the LGBTQ community, but the actions of the DOJ suggest otherwise.

Furthermore, it continues the trend of conflicting decisions in lower courts, so at some point in the future, this could go to the Supreme Court to decide, but that may take a long time to get a decision.

One way to provide clarity on this issue would be to amend the current laws through the senate to add sexual orientation as a protected group, but, with little bipartisan cooperation in Washington D.C., that too may be a long process.

VETS 4212 Reporting for Colleges and Universities – EEO Data Maintenance Insight

July 28, 2017 by Marife Ramos, PHR, SHRM-CP

For over a decade, the VETS annual survey form had been revised to accommodate the changes in both the protected veteran categories and the EEO job classifications. Prior to the current VETS 4212 there was the VETS-100 survey form. VETS-100 addressed the protected veteran categories under 41 CFR Section 60-250 and the EEOC’s nine (9) EEO-1 job classifications. Starting with the 2009 VETS filing cycle, the Department of Labor (DOL) issued new requirements for the use of VETS-100A form. This form addressed the changes to the protected veteran categories under Section 60-300, as well as updated the EEO-1 job classifications (i.e., reflecting EEOC’s split of the Officials and Managers category into two classifications: Executives and First Level Managers). For a few years, some federal contractors were filing both VETS-100 and VETS-100A forms within the same reporting cycle.[1] In 2014, all federal contractors were required to file VETS-100A only, eliminating the need to file two (2) survey forms for some. Just a year after, starting with 2015 filing cycle, contractors were then enjoined to use the VETS-4212 form to fulfill their annual veteran reporting obligation. The new form required contractors to report on the number of their protected veterans in the aggregate, further eliminating the need to report workforce count by specific protected veteran category.

With all these revisions to the survey form, the Veterans’ Employment and Training Service (VETS) seemed to have overlooked one fact: not all federal contractors use the same EEO job classifications and therefore, the EEO-1 job classifications in the survey form do not apply to other types of employers, such as colleges and universities. This article will discuss how colleges and universities, as federal contractors, should maintain their EEO data to better address the different reporting requirements.

Reporting Requirements for Employers

Federal statute and regulations require employers to report their workforce data on a regular basis (Section 709[c], Title VII, Civil rights Act of 1967; Section 153 of the Education Sciences Reform Act of 2002 [P.L. 107-279]). Through the EEO surveys, the EEOC collects workforce data for private employers (including federal contractors/subcontractors), local unions, public elementary and secondary school districts, and local and state agencies. On the other hand, the National Center for Education Statistics (NCES) is responsible for collecting workforce information for colleges and universities thru the IPEDS survey. The reporting thresholds and requirements, such as the number of employees, the frequency of reporting, and the job classifications, differ depending on the employer type (i.e., private, local or state, colleges and universities, etc.) – see examples in Table 1 below.

Additionally, federal contractors and subcontractors who meet the $150,000 federal contract threshold, regardless of the total number of employees, are required to annually file the VETS-4212 survey (38 U.S. Code, Section 4212, codified at 41 CFR Section 61-300). And like the EEOC’s workforce survey, VETS-4212 also requires federal contractors to report their workforce data (protected and non-protected veterans) by job classifications.

Table 1

Maintaining Records to Address VETS 4212 Reporting for Colleges and Universities

VETS 4212 survey requires contractors to separately report, within each EEO-1 job classification, 1) the total number of employees and new hires; and 2) the total number of employees and new hires who belong in the protected veteran categories (see VETS-4212 form here). Unfortunately, because the VETS 4212 report only conforms to private employers’ EEO-1 job classifications and (at least for now) does not provide options for reporting other job classifications, such as those used by colleges and universities (refer to Table 1 above), it is important to keep in mind that additional recordkeeping efforts are necessary to ensure that reporting requirements can be fulfilled efficiently. Private employment contractors are able to easily address multiple EEO reporting requirements, such as, AAP development, annual EEOC workforce survey, and VETS 4212 survey with a single effort of categorizing their jobs into the EEO-1 classifications. In contrast, colleges and universities will have to remember to categorize and maintain their job information in two ways: 1) by IPEDS categories to address their annual AAP development obligation and the IPEDS filing requirements; and 2) by EEO-1 job classifications to address VETS 4212 filing requirements.

While this could understandably be frustrating to those who are tasked of categorizing the jobs, — fear not. As a start, most IPEDS categories already have direct linkage to the EEO-1 job classifications and therefore, it lessens the burden of reviewing and re-categorizing every single job in the organization. Following is the list of IPEDS categories that can be directly linked to the EEO-1 job classifications:

For the remaining IPEDS classifications that do not have direct linkage, here are some of the best practices when reviewing jobs for the purpose of categorizing them into EEO-1 job classification:

Consider the function of the job (i.e., the duties and responsibilities of the person handling the job) rather than strictly relying on the job title. For example, a Maintenance Engineer might be appropriately categorized in the Professionals or in the Service Workers category. Does the person in the job have a bachelor’s or a graduate degree and/or professional certification and is responsible for repair and maintenance of equipment in the facility or is he/she responsible for the upkeep of safe, clean, and healthy work spaces?
Review the definitions of the EEO-1 job classifications. It provides good guidance on the types of jobs that can be appropriately assigned to each category.
Consider the currently assigned IPEDS category. The IPEDS category is good a starting point when considering an appropriate EEO-1 job classification. For example, EEO-1 category choices for jobs in the Management Occupations can be narrowed down to either Executive/Senior Level Officials or to First/Mid Level Managers.
Don’t be afraid to change the IPEDS category if needed. Remember, this effort should not be geared towards classifying the jobs into EEO-1 categories only, it is also an opportunity to make adjustments to current IPEDS assignments (when necessary).
Get help. When it becomes apparent that the exercise is too overwhelming, it is best to get advice and/or help from the experts.

Remember, the 2017 VETS 4212 filing cycle starts on August 1, 2017 through September 30, 2017. For additional information or questions regarding VETS 4212 filing, you may contact customer support at:
1-866-237-0275 or VETS4212-customersupport@dol.gov

Filing your VETS 4212

The 2017 filing will start on August 1, 2017 and ends on September 30, 2017. Visit the Frequently Asked Questions if you have any question on filing the report or you may send it to:

VETS 4212 Service Center
c/o Department of Labor National Contact Center (DOL-NCC)
7425 Boston Blvd.
Springfield, VA 22153

The staff at Biddle Consulting Group can also help you with any of your questions or reporting needs.

[1] Contractors with contracts entered prior to December 1, 2003 must file VETS-100 and VETS-100A for contracts entered after December 1, 2003. Some federal contractors held multiple contracts with effective dates either prior to or after December 1, 2003, requiring them to file both VETS-100 and VETS-100A survey forms.

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