Delay of EEO Gender Pay Equality Reporting Requirements Does Not Mean a Decrease in Enforcement

On Tuesday, the Office of Management and Budget notified the EEOC that it was delaying a rule finalized last year that would require large employers to report salaries of workers.  The rule was implemented to help combat gender pay inequality.

The rule would require any employer who must file an EEO-1 report, which is any private employer with 100 or more employees or federal contractor with 50 or more employees, to provide the previously required information about the number of its employees broken down by gender, race and ethnicity.  The second part of the rule would require employers to also submit W2 payroll data for its employees.

EEO-1 reports are filed in September of each year.  The rule was to go into effect for 2017.  Just days before the EEO-1 survey for 2017 with the new reporting requirements was scheduled to be opened, the OMB put on the brakes.

The EEOC, however, wants to make clear that this announcement does not mean that there will be a lack of enforcement in this area.  Law 360 is reporting that the EEOC Chair stressed Wednesday that gender pay inequality was still a “high priority.”

In the meantime, the 2017 EEO-1 online portal is temporarily off-line.  Employers will still have to provide the data required by the first part of the rule and should periodically check with the EEOC to see when the 2017 survey is issued.

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In the Aftermath of Hurricane Harvey Employers Should be Aware of Laws Protecting First Responders

The devastation in Texas is breathtakingly sad.  Although the storm has passed, recovery efforts continue.  For many, it will take months and years to recover.

Today I received my first call from a client asking about its obligations towards an employee who will be traveling to Texas to help with the recovery efforts.  Many states do have laws that protect first responders from being disciplined or terminated for missing work while responding to an emergency.

New Jersey, for example, is one such state that has a law that provides that an employer cannot “terminate, dismiss or suspend an employee who fails to report for work at his place of employment because he is serving as a volunteer emergency responder during a state of emergency declared by the President of the United States or the Governor of this State.”

Under the New Jersey law, a volunteer emergency responder is defined as “an active member in good standing of a volunteer fire company, a volunteer member of a duly incorporated first aid, rescue or ambulance squad, or a member of any county or municipal volunteer Office of Emergency Management, provided the member’s official duties include responding to a fire or emergency call.”

In the last few days, President Trump has declared a state of emergency in Texas and Louisiana.  As such any New Jersey volunteer emergency responder who is traveling to aid with the Hurricane Harvey recovery efforts may be entitled to leave.

The leave does not have to be paid.  Employees may be able to use available or vacation days while out on leave, but cannot be forced to use such time.

The bad news for employers is that the law does not provide a limit on the amount of work that can be missed by the employee.  Many other jurisdictions besides New Jersey provide similar protections.  Employers with questions about first responder leave are encouraged to contact employment counsel.

For those wanting to help victims of Hurricane Harvey, Consumer Reports  and the New York Times have written some helpful guidance on avoiding scams, as well as listing some charities that are in the best position to help.

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Yes, Neo-Nazis at Charlottesville Can Be Legally Fired from their Jobs

First, let us start by saying that we are saddened by the tragic and violent events that occurred in Charlottesville over the weekend.  Our hearts go out to the families and friends of Heather Heyer,  Lt. H. Jay Cullen, and Berke M.M. Bates.

Second, let us address a question that is appearing on a lot of social media threads — can/should the Neo-Nazis who participated in Saturday’s protest be fired from their jobs?

“Should” they be fired is not really a question we can answer.  That is certainly up to each individual’s employer.

Can they legally be fired?  The short answer is yes.

It appears that many people who were outraged about Saturday’s rally by white supremacists have taken to using online sources to “out” the identities of those present at the rallies.  There is already a report of at least one employer who has terminated one of the individuals identified as being at the rally.

Generally speaking, the First Amendment protects speech from government action. Similarly, its right to free assembly is a right to be free from government interference. It simply does not apply to private employers.

Employees of public employers do have First Amendment rights, but those rights are not unfettered.  Without going into a dissertation on Constitutional law, the case law provides that speech is only protected if they are commenting as a private citizen on a matter of public concern.  See, for example, Pickering v. Board of Education, 391 U.S. 563 (1968).

There certainly is an argument that raising a Nazi salute or chanting derogatory statements about Jews and people of color is not speaking about a matter of public concern.  Even if it is, the Pickering case requires courts to balance the interest of the employee in speaking against the employer’s interest in not undermining its mission.  Courts have held that permitting racist speech of employees causes the public to lose faith in the public employer and thus is not protected.

In short, if any private employer wishes to fire any of the individuals who have been identified as participating in the white supremacist rally, they can legally do so.  Likewise, public employers probably will also be able to do so without running afoul of the First Amendment.

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Governor Christie Vetoes Paid Family Leave Law

A couple of weeks ago we asked whether the federal government would pass a paid family leave law.  Although it is still unclear whether a federal law will pass, it is clear, for now, that there will not  be an expansion of paid family leave in New Jersey.

Governor Christie vetoed legislation that would have expanded paid family leave.  In his veto remarks, Governor Christie complained about the financial impact of the law.

The veto is conditional, meaning if the legislature approved a bill with Christie’s suggested changes, the law would pass.  However, it is clear that the legislature would not make Christies’ suggested changes as they have complained that his changes would gut the law.

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Governor Christie Vetoes Paid Family Leave Law

A couple of weeks ago we asked whether the federal government would pass a paid family leave law.  Although it is still unclear whether a federal law will pass, it is clear, for now, that there will not  be an expansion of paid family leave in New Jersey.

Governor Christie vetoed legislation that would have expanded paid family leave.  In his veto remarks, Governor Christie complained about the financial impact of the law.

The veto is conditional, meaning if the legislature approved a bill with Christie’s suggested changes, the law would pass.  However, it is clear that the legislature would not make Christies’ suggested changes as they have complained that his changes would gut the law.

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