Today’s Labor Updates:

EEOC Seeks Input on Proposed Pay Data Collection Requirements and Retaliation Enforcement Guidance

Select events and news from the world of organized labor

 

EEOC Seeks Input on Proposed Pay Data Collection Requirements and Retaliation Enforcement Guidance

Littler Mendelson – Ilyse W. Schuman

USA January 29 2016

The Equal Employment Opportunity Commission is soliciting public comments on two proposed policy changes that could have a significant impact on employers. The agency plans to require companies with 100 or more employees to include pay data as part of their Employer Information Report (EEO-1) form submissions, and issue enforcement guidance on unlawful retaliation.

EEO-1 Pay & Hours Data

On January 29, 2016—seven years to the day the Lilly Ledbetter Fair Pay Act was signed into law—the EEOC announced its intent to amend the current, demographic-related EEO-1 data collection requirements to include pay information for large employers.  The action is among those President Obama highlighted during a White House speech to mark the anniversary of the first piece of legislation he signed into law. According to a White House fact sheet, “The President is highlighting several additional actions that his Administration is taking to further advance equal pay for all workers and to further empower working families.” The White House explains that the EEOC’s proposal would cover over 63 million employees and “will help focus public enforcement of our equal pay laws and provide better insight into discriminatory pay practices across industries and occupations.”

Specifically, starting in 2017, employers with 100 or more employees (both private companies and federal contractors) would be required to submit information on their employees’ pay and hours worked as part of the EEO-1 data collection process. Currently, covered employers with 100 or more employees provide information on their employees’ ethnicity, race, and sex, by job category. The proposed policy changes would impact smaller employers as well, as this more limited reporting obligation would now extend to employers with 50-99 employees.

The EEOC’s proposed changes will be published in the February 1, 2016 edition of the Federal Registerin the form of a Notice seeking from the Office of Management and Budget a three-year approval of the revised EEO-1 data collection.  The Notice outlines which employers would be required to report their pay data, when this collection will commence, when the annual EEO-1 reports will be due, which pay data will be collected, and how employers will submit such information.

The push for additional pay information collection began more than six years ago when the President’s National Equal Pay Task Force recommended that the EEOC coordinate with the National Academy of Sciences (NAS) to conduct a study to determine how best to collect pay data to support its wage discrimination enforcement efforts.  Among other recommendations, the NAS report suggested the EEOC work with the Office of Federal Contract Compliance Programs (OFCCP) to develop a plan for obtaining and using the compensation data.

On April 8, 2014, the President issued a Memorandum, “Advancing Pay Equality Through Compensation Data Collection,” which directed the Secretary of Labor to develop a compensation data collection proposal. Four months later, the OFCCP responded by issuing a proposed rule that would require certain federal contractors and subcontractors to supplement their EEO-1 report with summary information on compensation paid to employees, as contained in the Form W-2 Wage and Tax Statement (W-2) forms, by sex, race, ethnicity, and specified job categories, and include other information such as hours worked and their number of employees.

The EEOC’s proposed EEO-1 changes appear to be part of this coordinated agency effort. The proposed changes to the EEO-1 report to collect pay data expands on and replaces an earlier plan by the Department of Labor to collect similar information from federal contractors.  The EEOC Notice states:

Public comments submitted to OFCCP about the proposed Equal Pay Report and rule argued for, among other things, the need to improve interagency coordination and decrease employer burden for reporting compensation data by using the EEO-1, rather than a new OFCCP data collection, as well as the need to protect privacy and data confidentiality. The instant proposal responds to these concerns.

With respect to how the EEOC intends to use this wage information, the Notice explains:

In the course of developing this EEO-1 proposal, the EEOC and OFCCP together consulted with the Department of Justice, focusing on how EEO-1 pay data would be used to assess complaints of discrimination, focus investigations, and identify employers with existing pay disparities that might warrant further examination. The EEOC and OFCCP plan to develop statistical tools that would be available to staff on their computers, to utilize the EEO-1 pay data for these purposes. They also anticipate developing software tools and guidance for stakeholders to support analysis of aggregated EEO-1 data. Finally, the EEOC and OFCCP anticipate that the process of reporting pay data may encourage employers to self-monitor and comply voluntarily if they uncover pay inequities.

To this end, the EEOC seeks public input on, among other issues, how employers can report hours worked for salaried employees, and the estimated hours it would take for them to comply with this new reporting requirement. Comments on this proposed rule are due on or about April 1, 2016. The agency also intends to hold a public hearing on this matter at a time and date to be determined.

Retaliation Guidance

The proposed changes to the EEO-1 reporting requirements come a little over a week after the EEOC announced its intention to issue new Enforcement Guidance on retaliation and related issues. This 76-page guidance document, which includes definitions to related EEO concepts and example scenarios, appears to make significant policy changes as well.

Notably, the guidance would expand the definition of “protected activity,” and broaden the basis for proving the link between the protected activity and the contested employer action. For example, the guidance states: “The charging party may discredit the defendant’s explanation [for the adverse action] and demonstrate a causal connection between the prior protected activity and the challenged adverse action by what one appellate court has described as a ‘convincing mosaic’ of circumstantial evidence that would support the inference of retaliatory animus.” If implemented, this vague, causal standard could drastically increase the number of (and, potentially, the value of) retaliation claims.

Public input on this new guidance is due by February 24.¹

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Select events and news from the world of organized labor

Organizing

According to Bloomberg BNA, the union density remained at a historic low of 12.3 percent in 2014 and 2015, as compared to 23.3 percent in 1983. Despite the overall decline, the flat 2015 percentage reflects that unionization gains have kept pace with job growth in the United States. Breaking down the 2015 statistics, the number of workers covered by collective bargaining agreements, regardless of union membership, rose by 289,000 to 16.44 million. The share of unionized government workers dropped slightly from 39.2 percent in 2014 to 39 percent in 2015, but the unionized private sector rate remained at a stable 7.4 percent. The median weekly earnings of full-time unionized workers in 2015 continue to be higher than nonunion workers in the private and government sectors.

Huffington Post editorial staffers voted overwhelmingly in favor of representation by the Writers Guild of America East. Huffington Post is a New York-based online publication that employs about 350 editorial staffers. Several other digital media newsrooms have also recently organized, including Gawker, Vice Media, and Guardian US.

About 95 workers at the think tank Center for American Progress (CAP) will be represented by Local 70 of the International Federation of Professional and Technical Engineers following CAP’s voluntary recognition of the union. Last fall, editorial staffers at CAP’s ThinkProgress political website organized with the Writers Guild of American East.

Loyola University of Chicago non-tenure track faculty in the college of arts and sciences voted 142-82 in favor of union representation by Service Employees International Union (SEIU) Local 73. Assuming no objections are filed by February 3, the National Labor Relations Board’s (NLRB or Board) Region 13 may certify SEIU Local 73 as the faculty’s exclusive bargaining representative. However, the university is reportedly considering requesting a review of the regional director’s decision to hold the election due to a religious exemption.

As a part of the United Steelworkers’ (USW) continuing efforts to organize higher education workers, the USW launched a campaign to organize faculty and graduate student employees at the University of Pittsburgh. Other unions also are aggressively campaigning nationwide to organize faculty at colleges and universities.

A small group of medical interpreters and transplant financial coordinators at Temple University Hospital in Philadelphia voted 11-1 in favor of unionization. The workers will be included in a larger bargaining unit represented by the Pennsylvania Association of Staff Nurses and Allied Professionals. Asserting NLRB jurisdiction and ordering the election, an acting regional director rejected a 1972 NLRB decision that had found Temple was a “state-related” university whose hospital employees fell under the jurisdiction of the Pennslyvania Labor Relations Board.

Alliance@IBM, a Communications Workers of America local, announced it will suspend its decades-long organizing efforts at IBM.

Strikes & Labor Disputes

Members of five United Food and Commercial Workers (UFCW) locals began distributing leaflets at Stop & Shop Supermarket Co. stores in New England, informing customers that the company was advertising to replace local members in the event of a strike. The parties recently began bargaining over proposed agreements to replace three-year contracts set to expire February 27. The proposed agreements would cover 34,000 Stop & Shop workers employed at 248 stores in Connecticut, Mass. and Rhode Island.

In reaction to Mondelez International Inc.’s announcement that it plans to layoff half of the workers at its Chicago plant, the Bakery, Confectionary, Tobacco Workers and Grain Millers (BCTGM) union filed a charge with the Equal Employment Opportunity Commission, alleging that the planned layoffs are motivated by age and race bias. Last year, Mondelez asked BCTGM members to help save $46 million per year in order to upgrade technology at the Chicago plant and prevent 600 positions from being relocated to a facility in Mexico.

The Port Authority of New York and New Jersey sent an alert that an “apparent labor walk off” halted all activity at New York City’s ports, the busiest on the East Coast.

Major Contract Settlements & Negotiations

According to data compiled by Bloomberg BNA, contracts negotiated in 2015 had an all-settlements average first-year wage increase of 2.6 percent, compared to 2.1 percent in 2014. This increase was higher than 2014 increases in all sectors other than manufacturing, where the average increase dropped 0.2 percent. Second- and third-year wage increases in 2015 averaged 2.4 percent, compared to 2014 increases of 2.1 percent and 2.2 percent, respectively. The weighted average increase in agreements rose from 2.6 percent in 2014, to 3.6 percent in 2015. Overall, 13 percent of 2015 contracts called for a first-year wage freeze.

 

Additionally, according to Bloomberg BNA, January 2016 contract settlements averaged a 2.8 percent wage increase, compared with an average 2.7 percent wage increase for the comparable period in 2015. The median increase for settlements reported to date in 2016 was 2.5 percent, and the weighted average was 3.6 percent, compared with 2 percent and 5.3 percent respectively, in 2015.

Major agreements reached in Canada during November provide covered employees with an average base rate wage increase of 1.7 percent, 0.7 percent larger than the average wage increase in October, but slightly smaller than the 1.8 percent average in September.

SEIU members ratified a four-year contract with the Hartford County Cleaning Contractors Association in Connecticut, providing 2,100 office building cleaners with annual wage hikes, employer-paid health benefit protections, and expanded access to paid sick leave.

Following a 27-day unfair labor practice strike in December 2015, members of Teamsters Local 727 voted to ratify a new contract with Coca-Cola Refreshments, covering over 300 workers at bottling plants in Chicago. The three-year contract provides for annual wage increases and improvements in employee health and welfare benefits.

After two years of bargaining, members of the International Association of Machinists at Hawaiian Airlines Inc. voted to ratify tentative agreements covering more than 2,200 mechanics and clerical workers. The five-year contracts provide retroactive pay raises, enhance job security, and stabilize employee health care costs and participation in profit-sharing and incentive programs.

Although the existing contracts do not expire until October 2016, Boeing Co. and the Society of Professional Engineering Employees in Aerospace reached tentative agreements on a pair of six-year contract extensions covering more than 20,000 engineering employees. The tentative contracts continue existing agreements largely intact. The extensions include language related to how Boeing will cope with the movement of work, as well as phasing out the company’s defined benefit pension plan. The union is recommending ratification, and votes will be counted February 10.

Days before Northeastern University adjuncts were scheduled to stage a one-day strike in protest of slow contract negotiations, university administrators reached agreement with the SEIU on a tentative three-year labor contract covering about 930 adjunct faculty members. The agreement increases per-course pay, promotes greater consistency in faculty course loads, and establishes a professional development fund to promote research and civic engagement.

SEIU Local 32BJ members overwhelmingly ratified two contracts with the Realty Advisory Board Inc., which covers approximately 23,000 commercial building service workers in New York City. One agreement was reached between the local and contractors, and the second was reached between the local and commercial building owners and their third-party managing agents. Under the four-year contracts, workers will receive an average year wage increase of 2.69 percent, expanded leave benefits, and increased employer contributions to their health and pension funds.

Nearly 80 percent of the 12,500 members of United Airlines pilots’ union voted for ratification of a two-year contract extension. The deal is a step forward for new Chief Executive Officer, Oscar Munoz, who has made efforts to improve labor relations and boost United Airlines’ on-time rates. The proposed agreement raises pilots’ pay by 13 percent in 2016, and provides for a 3 percent raise in 2017 and a 2 percent raise in 2018.

The longstanding bargaining impasse between New Jersey Transit and its unions remains unsettled after a second arbitration board, named by President Obama, endorsed the more labor-friendly recommendation of the previous board. In a report, the three-member panel chose the final offer of the New Jersey Transit Rail Labor Coalition as the most “reasonable.” The proposed wage increases in the union coalition’s offer would total almost 18.4 percent compounded over 6.5 years retroactive to 2012. The union coalition’s offer would reportedly cost New Jersey Transit an estimated $183 million. Under federal law, the parties are subject to a final 60-day cooling off period, during which both sides are prohibited from engaging in strikes or lockouts.

Administrative, Court & Other Decisions

The NLRB ruled that a fitness club operator’s arbitration policy, which waived employees’ rights to participate in class or collective actions, violated Section 8(a)(1) of the National Labor Relations Act (NLRA), despite the inclusion of an opt-out feature. The Board rejected the employer’s defense that the opt-out made the dispute resolution process voluntary, relying on its 2015 decision in On Assignment Staffing Services, which held a non-mandatory arbitration policy that precluded collective action still violated the NLRA because it interfered with employees’ right to engage in concerted activity. 24 Hour Fitness USA, Inc.

The U.S. Court of Appeals for the Third Circuit ruled that under the federal bankruptcy code, a Chapter 11 debtor-employer may reject or modify labor obligations established in a collective bargaining agreement (CBA), even after the agreement has expired. Section 113 of the bankruptcy code provides that a debtor may “reject a collective bargaining agreement” if it has proposed modifications, an employee representative “has refused to accept such proposal without good cause,” and “the balance of equities clearly favors rejection of such agreement.” The court determined that Section 1113 does not distinguish between an unexpired CBA and the continuing terms and conditions of an expired CBA. In re Trump Entm’t Resorts.

A divided NLRB held that a memorandum of understanding requiring the NLRB’s General Counsel to defer action in cases where an unfair labor practice charge and an Occupational Safety and Health Act (OSHA) complaint cover “the same factual matters” does not require NLRB officials to resolve the deferral question before issuing investigative subpoenas to employers. The issue arose when a manufacturing company asked the Board to revoke investigative subpoenas issued by the General Counsel. The Board rejected the employer’s petition to revoke, finding that a 1975 agreement between the General Counsel and OSHA did not prevent the Board officials from investigating unfair labor practice charges against the company. Lear Renosol Selma Mfg. Facility.

The Tenth Circuit affirmed an NLRB decision awarding back pay to hospital workers and refusing to deduct interim earnings from the award. In 2004, the NLRB determined the hospital violated the NLRA by reducing its employees’ hours without bargaining with the workers’ union, and awarded the workers back pay for lost earnings and benefits. The Board reasoned that in cases where there is not a complete loss of employment, deducting interim earnings from back pay would make aggrieved employees no better off than co-workers who remained underemployed. The circuit court determined it was bound to defer to the Board’s remedial choice, so long as the selected remedy was not contrary to federal labor law. NLRB v. Cmty. Health Servs., Inc.

The U.S. Court of Appeals for the D.C. Circuit denied a Board petition for rehearing of a panel decision that former NLRB General Counsel Lafe Solomon’s 2010 appointment as the acting general counsel of the NLRB became invalid once he received a presidential nomination to serve in the position. The court relied on a provision of the Federal Vacancies Reform Act (FVRA), which prohibits a person from being both the acting officer and the permanent nominee. President Obama relied on the FVRA when he appointed Solomon to act as the agency’s chief lawyer, but the circuit court panel determined that the FVRA prohibited Solomon’s continued service in the job once the president nominated him to serve a four-year term in the position. Because the Board’s unfair labor practice against the employer was based on a complaint issued by Solomon during the period when he was improperly serving in the NLRB post, the D.C. Circuit panel concluded the order was not enforceable. SW Gen., Inc. v. NLRB.

The D.C. Circuit Court of Appeals upheld a NLRB ruling finding that DHL Express Inc. violated federal labor law by interfering with employees handing out union literature in a “mixed-use” hallway of its national cargo hub at the Cincinnati airport. The Board instructed that an area is considered to be of “mixed-use” when minimal or solely incidental work is conducted. According to the Board, prohibiting distribution in a “mixed-use” area during non-work time is an unfair labor practice, unless the employer can justify this restriction based on special circumstances. The circuit court upheld the Board’s finding that DHL failed to demonstrate any special security or safety circumstances that justified interfering with employee activity. DHL Express, Inc. v. NLRB.

As part of the NLRB’s nationwide investigation into unfair labor practice charges against McDonald’s and its franchises, the Board appealed to a federal district in Illinois to require McDonald’s franchises to produce employment-related documents. The federal judge ruled that nine McDonald’s franchises in Illinois must produce various documents related to their operations and rejected the company’s argument that the Board’s subpoenas for documents, including handbooks and wage and benefits information, were overly burdensome. NLRB v. K. Mark Enterprises.

The NLRB ruled in a 2-1 decision that a Veolia Transportation Services “road supervisor” was an employee, rather than a statutory supervisor. Reversing a regional director’s decision on the issue, the Board decided that although “road supervisors” observe coach operators in the field, they are employees under the NLRA because they lack authority to impose, or effectively recommend, discipline. The Board reasoned that management officials, not road supervisors, are ultimately responsible for administering discipline. Veolia Transp. Servs.

An NLRB regional director declined to exercise jurisdiction over a union representation case involving Carroll College, a Catholic college in Montana, and dismissed a union’s petition for an election among school faculty members. The Board held it would not assert jurisdiction over any institution that holds itself out as providing a religious educational environment where faculty performs a specific role in creating or maintaining that religious environment and could be subject to employment-related decisions based on religious considerations. The NLRB reasoned that Carroll College held itself out as providing a religious educational environment, and that the school reserved the right to discharge faculty members for disregarding the school’s Catholic mission. Moreover, the regional director found that some faculty members covered by the union’s petition were managerial employees, and thus not protected employees under the NLRA.

Legislation & Politics

The UFCW, with 1.3 million members, the International Alliance of Theatrical Stage Employees, with 125,000 members, the National Treasury Employees Union, with 150,000 members, the American Federation of Government Employees, with 670,000 members, and the International Association of Sheet Metal, Air, Rail and Transportation Workers all announced their endorsements of Democrat Hillary Clinton in the 2016 presidential election. The Communications Workers of America and National Nurses United have endorsed Bernie Sanders in the 2016 presidential election.

UNITE HERE affiliates Culinary Workers Local 226 and Bartenders Union Local 165, which represent approximately 57,000 hotel and casino workers in Las Vegas and Reno, allege that Bernie Sanders staffers posed as union members along the Las Vegas strip in an effort to rally support for Sanders’ campaign. Both unions have thus far declined to endorse a presidential candidate.

More than one hundred labor and employment relations professors filed a rulemaking petition under a rarely used NLRB regulation, urging the Board to introduce a rule allowing unions to hold work-day meetings on an employer’s private property if the employer conducts a “captive audience” meeting with employees before a union representation election. Currently, companies can require workers to attend meetings regarding management’s views on unionization, while prohibiting nonemployee union organizers from holding meetings on company property.

Crime, Corruption & Other Misdeeds

Patricia Johansen, a 74-year-old home-care worker, brought a claim against the SEIU when she noticed that $76.67 was deducted from her paycheck. Johansen was informed that someone had signed her name on a union card, authorizing union dues to be subtracted from her paycheck. Johansen alleges someone else signed her name, as she never saw or signed a union card. In response, the SEIU investigated Johansen’s claim and refunded all of the dues that were inadvertently deducted from her paycheck. A National Right to Work Legal Defense Foundation group that is currently raising constitutionality arguments against the union in the Eighth Circuit Court of Appeals stated that it believes the controversy is illustrative of a larger issue concerning the SEIU—untrustworthiness with personal care assistants’ personal information.

Miscellaneous

A second multiemployer union pension fund—the Iron Workers local pension fund—has now applied to the Treasury Department for benefit suspension approval. The fund is projected to be insolvent by 2025 unless a rescue plan is approved, which would suspend accrued benefits of plan participants. The Treasury may reject an application within 225 days from a filing. Otherwise, it will be considered approved and go into effect December 1, 2016.