Legal Updates – May 2019


Department of Labor Issues Opinion Letter about Gig Workers

The US Department of Labor issued a new opinion letter that concluded that gig workers for a virtual marketplace company are independent contractors, not employees, under the Fair Labor Standards Act.  The company at issue uses an app to connect residential house cleaners with potential customers, similar to the way Lyft and Uber connect drivers with riders.  In the opinion letter (FLSA2019-6), the DOL used a six-factor “economic dependence” test and concluded that the workers are independent contractors because they “demonstrate economic independence . . . in the working relationship between [the company] and its service providers.”

[A quick reminder about opinion letters:  An opinion letter is an official response to a specific question raised by an employer on how a particular law applies in a particular situation.  Opinion letters are not laws, but they represent the DOL’s official position on certain issues, and other employers (and the courts) may rely on opinion letters for guidance when interpreting laws and regulations.]

EEO-1 Pay Data Reporting Deadlines

A recent federal court ruling has set September 30, 2019, as the deadline to file EEO-1 Component 2 pay data for calendar years 2017 and 2018.  Employers with 100 or more employees, and federal contractors with 50 or more employees, are required to report employee demographic and pay data to the EEOC.  The EEO-1 data reporting requirements now contain two components.  Component 1 demographic data includes number of employees by job category, race, ethnicity, and sex.  Component 2 pay data includes hours worked and pay information by race, ethnicity and sex.  The deadline to report Component 1 data is May 31, 2019.  The deadline to report Component 2 data is September 30, 2019.

The Component 2 reporting and deadline had been in flux because of ongoing litigation, but the recent court ruling seems to have resolved the issue for now.  The U.S. Department of Justice has appealed the ruling, but EEOC posted on its website that the appeal does not affect the reporting deadlines.  The appeal creates the chance the deadline could change again, but employers would be wise to operate under the assumption that they will need to report Component 2 data at the end of September.

Visit the EEOC’s EEO Reporting website for more information about reporting requirements.

Supreme Court of the United States Will Hear Cases on LGBT Workplace Bias

The U.S. Supreme Court agreed to consider three cases raising question of whether Title VII prohibits discrimination on the basis of sexual orientation or gender identity.  The schism in the circuit courts has made this issue ripe for review, as has the disagreement between the EEOC (who says the Civil Rights Act protects gay and transgender people from discrimination) and the Trump Administration, which takes the opposite view.  The court will hear oral arguments in the fall, with decisions expected in early 2020.

EEOC Releases Enforcement and Litigation Data

The EEOC recently released its enforcement and litigation data for fiscal year 2018.  According to the report, the EEOC resolved 90,558 charges.  The most frequently filed charge was retaliation, which accounted for 51.6% of all charges filed, followed by sex (32.3%), disability (32.2%), race (32.2%), and age (22.1%).*  A total of 1,354 charges were filed in Colorado, accounting for 1.8% of all charges nationwide.  In Colorado, the most frequent charges were retaliation (61.7%), sex (37.4%), disability (35.2%), age (27.3%), and race (22.7%).*  More details about the EEOC’s report are available here and here.

(*These percentages add up to more than 100% because some charges allege multiple bases.)

UPDATE:  No Paid Family Leave Law in Colorado this Year

The proposed FAMLI bill introduced in the Colorado Senate, which would have required paid family and medical leave for Colorado employees, will not be signed into law this session.  The bill (SB-188), which we wrote about last month, was opposed by many in the business community, and legislators on both sides of the aisle questioned whether the proposed law would be able to pay for itself.  As a result, the bill’s sponsors redrafted the bill to fund a study to evaluate the idea of a paid leave program, including how to pay for it and implement it.  The redrafted bill was approved by both the House and Senate, and was sent to Governor Polis.  Governor Polis has until June 2 to sign the bill, veto it or let it become law without his signature.

Recent EEOC Actions in Colorado

  • The EEOC filed suit against a Chili’s restaurant in Cañon City, alleging that restaurant management sexually harassed female servers and hostesses, and retaliated against some women who complained about the harassment.
  • Greeley-based JBS Carriers agreed to settle an EEOC lawsuit which alleged that the trucking company’s pre-employment medical screening process unlawfully screened out qualified applicants with disabilities.
  • Local auto repair and tire services chain, A&E Tire, agreed to settle a sex discrimination lawsuit by the EEOC alleging that A&E Tire failed to hire a job applicant when the company learned the applicant was transgender.