Employment Law This Week®: EEOC Pay Data Deadline, Class Arbitration Ruling, Scope of Title VII, Marijuana Drug Test Ban, "Wage Theft" Hearing

This Employment Law This Week^® Monthly Rundown discusses the most important developments for employers heading into May 2019. The episode includes:

1. EEOC Pay Data Deadline Set for September 30

The confusion is over for employers. EEO-1 pay data does not need to be submitted to the Equal Employment Opportunity Commission (“EEOC”) by the end of the month. In what may be the final chapter of the EEO-1 pay data reporting issue, a federal judge in Washington, D.C., ruled that the deadline would be postponed until September 30, 2019.

“The EEOC’s Chief Data Officer made a declaration to the court very specifically saying the EEOC cannot do it on its own. They have to go to a third party. They have to go outside of EEOC to a company or an organization to actually be able to pull this data together at the court's direction. So, you have the gender and race, ethnicity data that everybody is used to reporting, and then you have all of this new pay data trying to be overlaid over that existing framework, if you will. In addition, you have to provide hours worked for each of your employees. So, you have 80,000 employers, tens of millions of employees, and now you have to not only provide them with pay data in the aggregate based on these categories, you also have to do hours worked.”

– Robert O’Hara, Member of the Firm, Epstein Becker Green

The EEOC has decided that employers must file both 2017 and 2018 pay and hours-worked data by September 30, 2019. The agency will begin accepting this new data in mid-July.

2. Supreme Court Rules Class Arbitration Requires Explicit Authorization

Heading into May, we have more clarity on class arbitration. The U.S. Supreme Court recently found in Lamps Plus, Inc. v. Varelathat an employee could assert only individual, and not class action, claims in arbitration because the arbitration agreement did not explicitly authorize class claims. Reversing a decision from the U.S. Court of Appeals for the Ninth Circuit, the Supreme Court found that an obligation to engage in class arbitration is not implicit in an arbitration agreement under the Federal Arbitration Act, and that explicit authorization is required to compel a company to arbitrate on a classwide, rather than individual, basis.

3. Supreme Court to Decide Scope of Title VII for LGBTQ+ Status

The Supreme Court has agreed to hear three cases in its October 2019 term that address whether the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 (“Title VII”) extends to discrimination on the basis of sexual orientation or gender identity. Two courts — the Second and Seventh Circuits — have held that Title VII covers sexual orientation, while the Eleventh Circuit found the opposite. Separately, the Supreme Court will decide whether Title VII prohibits discrimination against transgender people. Oral arguments are set for fall 2019, with decisions expected in 2020.

4. NYC Set to Become First City to Ban Pre-Employment Marijuana Drug Testing

With a growing number of jurisdictions legalizing the medical and adult recreational use of marijuana, it’s no surprise to see the emergence of additional employment-related laws. The New York City Council recently passed a bill that would prohibit marijuana drug testing for prospective employees as a condition of employment. The Council passed the bill on April 9, and employers will have to comply beginning one year from the date it becomes law. The law would restrict employer use of tests for marijuana and tetrahydrocannabinol (also known as “THC”). This bill is the first of its kind, and we may see more of the same in jurisdictions across the country. We’ll keep you updated on developments in this area.

5. House Appropriations Committee Holds Hearing on “Wage Theft”

The U.S. House Appropriations Committee heard testimony last month in a hearing entitled “Combatting Wage Theft: The Critical Role of Wage and Hour Enforcement.” Epstein Becker Green’s Paul DeCamp testified at the hearing to provide insight on the concept of “wage theft” and the state of wage and hour enforcement, as well as how these issues affect employers and workers.

“It is fundamentally unfair to impose criminal or quasi-criminal punishment where an employer was not on clear notice of what the law requires and did not act with criminal intent. In my experience, all but a small percentage fall into this non-willful category. By all means, protect workers and make them whole, but do not treat unintentional FLSA violators like felons.”

– Paul DeCamp, Member of the Firm, Epstein Becker Green

Stay tuned for further developments that may affect your business.

This Employment Law This Week® episode was also featured in “On the Legal Front: Court Agrees to Hear LGBTQ Case; No Pot Testing In NYC,” on TLNT, a resource for news, analysis and opinion on the business of HR for human resource and talent management leaders and professionals.