Federal Law Alert: Employment Law Updates

by Mammoth Team on September 6, 2017


There are several new Employment Law updates with regards to EEO-1, minimum salary for white collar workers, and predictive scheduling to be aware of.

EEO-1 Pay Data Reporting Suspended Indefinitely
Last week, the Office of Management and Budget put an indefinite hold on the pay data collection portion of the EEO-1 form that was revised on September 29, 2016. The version in effect prior to September 2016 (which collects data on race, ethnicity, and gender by occupational category) remains in effect.

The EEO-1 form only applies to private employers with 100 or more employees and public contractors with 50 or more employees. Affected employers should plan to submit the earlier-approved EEO-1 by the previously-set filing date of March 2018.

Overtime Rule Doubling Minimum Salary for While Collar Workers Officially Dead
On August 29th, Judge Mazzant in the Eastern District of Texas issued his ruling on the Department of Labor’s overtime rule changes. The rules, which were slated to go into effect on December 1, 2016, have been on hold since he issued an injunction last November. As anticipated, the Judge ruled in favor of the Plaintiffs, finding that the DOL had overstepped its authority by making the new minimum salary so high.

The DOL will not be appealing the decision, but labor or employees’ rights groups could theoretically take their place in the lawsuit. However, the DOL has said they would not enforce the 2016 rules, so any further action toward implementation will ultimately be ineffective.

The DOL has, however, put out a Request For Information (RFI), seeking public comment that will presumably help it formulate an all-new set of rule changes. To view the RFI in full and leave a comment, go here.  

Fair Work Week Legislation: Is Predictive Scheduling the Future?
The state of Oregon and New York City have joined San Francisco, Emeryville, and Seattle in passing predictive scheduling laws, which require certain employers to give employees a minimum amount of advance notice of their work schedule.

A number of other states and municipalities have considered similar regulations, and we anticipate that more laws like these will be offered up in state legislatures and in city councils across the nation. Employers in Oregon or New York City can find the most essential requirements for their location below.

New York City – Effective November 26, 2017
Retail employers with 20 or more employees will be required to do the following:

  • Provide employees with a written work schedule at least 72 hours in advance of the first shift on the schedule.
  • Give employees at least 72 hours’ notice before scheduling or cancelling a shift; employees who are interested in more work may consent in writing to the scheduling of a new shift.
  • Directly notify employees of any schedule changes (employees cannot be expected to come in or call in just to check for changes).
  • Keep records of work schedules for the previous three years and provide them upon request.

Fast food establishments that are part of a chain (30+ stores nationally, whether franchised or not) are subject to different rules. They must do the following:

  • Provide new employees with written, good faith estimates of their schedule, including dates, times, and locations, for the duration of their employment.
  • Provide employees with a week’s worth of scheduling at least 14 days in advance.
  • Pay a “schedule change premium” of $10 to $75 if schedule changes are made on short notice; the greater the notice, the lesser the premium.
  • Pay employees an extra $100 for “clopening” shifts (a closing shift followed by an opening shift) that are less than 11 hours apart.
  • When looking to fill additional shifts, offer the work to current employees before transferring employees from other locations or hiring new workers.

Oregon State – Effective January 1, 2018
Employers who provide services in retail, hospitality, or food service, and have 500 or more employees worldwide, will be required to do the following for their workers in Oregon:

  • Provide new employees with written, good faith estimates of their schedule in advance of their first day of employment.
  • Provide 10-hour breaks between shifts; if 10 hours are not provided, the portion of the shift that was worked before the 10 hours were up must be paid at 1.5x the employee’s regular rate of pay.
  • Give employees their schedules in writing at least 7 days in advance (beginning in 2020, 14 days’ notice will be required).
  • Pay a premium if shifts are added, changed, or cancelled without the prescribed notice.

Employers in Oregon and New York City should begin to plan for these laws to take effect. Many employers will need to make drastic changes to the way they formulate and distribute schedules.

Although the laws are clearly intended to reduce last minute schedule changes by imposing penalties and premium pay, some employers may find that they would rather pay the penalty or premium to have the convenience of scheduling “clopening” shifts or making last minute changes. We recommend, however, that employers do the math prior to deciding to just take the financial hit. These penalties are likely to pile up fast, and since employees will no doubt be discussing the changes with one another, it’s unlikely that violations will go unnoticed.

Between the FMLA and the ADA, many employers have a hard time keeping up with all the requirements. Watch our free webinar on Leaves of Absence as a tool to help ensure that you’re taking the appropriate steps when it comes to managing employee leaves.


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Topics: Compliance, Federal Law Alert