August 19, 2019


For those employers who must file an EEO-1 report, you know all too well very the limited options in choosing an employee’s gender when an employee does not self-report.  You can choose male or you can choose female.  But what is an employer to do when an employee is identifies as nonbinary since there is no option to choose other or unknown.  First, the EEOC states that an employer may use employment records or employer observations of the employee to determine whether to identify the employee as either male or female on the EEO-1 report.  However, recent guidance from the EEOC on nonbinary employees goes even further.  The EEOC  has issued a new FAQ stating that employers can include “employee counts and labor hours for nonbinary gender employees by job category and pay band and racial group in the comment box on the Certification Page.”  So while the EEOC has yet to provide us with an updated form with more gender options, there is now at least the chance to provide a more complete narrative response in the comments section. 

July 29, 2019

If you are an employer with 100 or more employees or a federal contractor with at least 50 employees, then you probably already know about your requirements to file an annual EEO-1 form with the EEOC. After much legal wrangling, there is now a new section of the EEO-1 that employers MUST be aware of: Component 2. Component 2 is the newest requirement of the EEO-1 form that requires employers report pay-data based on job category, race and sex by September 30, 2019. This form has over 3,000 possible data fields which can make completion of the form exceedingly complicated and wrought with the opportunity for errors. Adding to this, employers are also required to complete Component 2/Pay-Data reporting for both 2017 and 2018. If you have questions about Component 2 and its specific requirements, please contact one of our attorneys at myHRcounsel for assistance.

June 3, 2019

Picture it: Sicily, 1922. No wait, sorry. Wrong post! Picture it. You are the HR manager and you’ve noticed lately that one of your employees seems to be down, unusually sad, has changed their eating habits or just seems to be generally suffering from “the blues”. Are you able to approach this employee to find out what’s been going on? Probably not, as the EEOC has said that employees may keep information about their medical conditions private.  There are, however, exceptions to this rule.  Employers may ask questions about mental health if an employee asks for a reasonable accommodation, if you made a conditional offer of employment and ask all applicants for the same medical information, if your company is governed by an affirmative action policy and you are tracking disability status for all, or there is evidence that the employee may not be able to perform the functions of their job or may be a safety risk. Outside of these four exceptions, an employer should not inquire after an employee’s mental wellness. If you have questions about this or want help analyzing a current situation you are experiencing with an employee, contact one of our attorneys at myHRcounsel for expert guidance. 

May 27, 2019

Did you know that even if your company has a clearly stated and equally applied call-in procedure spelled out in your handbook, that you may need to deviate from that in order to stay in compliance with the FMLA?  In the event of an employee’s need for unforeseeable leave, such as a car accident or heart attack, if the employee is unable to comply with your requirement that they, for example, call in 2 hours before their regularly scheduled shift, you will have to make concessions for the employee’s failure to comply.  Further, you should allow others to call in on your employee’s behalf.  One employer found this out the hard way.  The employee was in such a depressed state that she was unable to speak at all, much less call-in to report her own absence.  Her family member called in on her behalf, but the employer failed to accept it as a valid call-in and terminated the employee after she failed to show up for several days.  Not unsurprisingly, this employer ended up getting sued by the employee.  Contact our attorneys at myHRcounsel for help wading through the ever-complex web of FMLA laws and regulations!

April 29, 2019

Do you employ workers in multiple jurisdictions?  If so, have you checked whether there are paid sick leave laws on the books in those jurisdictions?  If you have employees working in multiple jurisdictions that require employers provide employees with paid sick time, you must be sure that you are complying with each law’s unique differences.  Some of the differences among various paid sick leave laws include: the amount of time an employee must work in that jurisdiction in order to qualify to accrue paid sick leave, the amount of hours an employee may accrue for each hour worked, the annual usage and accrual caps, the amounts of carry-over from one year to the next, among several others.  There are a couple of ways you could handle these differences.  One option would be to create a separate policy for each jurisdiction and apply that policy to only those employees working in that jurisdiction.  This could become difficult from a recordkeeping and tracking standpoint, though, as you would have to use different tracking methods for different employees based on where they work.  You could also choose the most employee-friendly statute of the jurisdictions where employees work and apply that to all employees.  However, this option could give some employees a lot of paid sick leave that they would not ordinarily be entitled to.  Bottom line: no matter which option you choose, you must be sure that you are complying with each jurisdiction’s laws.  Contact the attorneys at myHRcounsel to discuss how you can be sure you are complying with the myriad paid sick leave laws throughout the country and get a legally compliant multi-jurisdiction paid sick leave policy. 

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