US Supreme Court Rules that EEOC Charge is not Jurisdictional Requirement for Bringing Civil Rights Claims in Federal Court

Plunkett Cooney

By: Claudia D. Orr

At first, the media’s announcement of the new U.S. Supreme Court decision, Fort Bend County, Texas v Davis,  left me scratching my head, but after reading the case, it really did not say anything new, it just made the point very clear. The opinion authored by Justice Ginsburg was just released on June 3, 2019.

            A little background information may be helpful. Federal courts are courts of limited jurisdiction. They can hear cases involving a federal question or they can hear cases where there is diversity (in very simple terms, all of the defendant are located out of the state where the claims are brought) and there is $75,000 or more at issue. Federal civil rights claims (i.e., those under Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, etc.) present federal questions. If the court does not have jurisdiction, it cannot exercise authority over the case.

            Title VII contains a procedure that applies to most of the federal civil rights statutes whereby charges must first be filed with the Equal Employment Opportunity Commission (EEOC) within 180 days of the alleged unlawful practice (or within 300 days in states, such as Michigan, where there is a state agency empowered to investigate civil rights violations). If the EEOC determines there is “no reasonable cause to believe that the charge is true”, it issues to the “charging party” a notice of right to sue in court.

But what happens when the charging party files in court without first filing the administrative charge, or before the notice of right to sue is issued, or perhaps fails to allege all of the violations in the charge that are stated in the civil action? Must the federal district court dismiss those civil rights claims upon motion by the defendant/employer? If filing at the EEOC is a jurisdictional requirement, the answer is yes. Let’s look at some of the prior Supreme Court decisions on this issue.

            In 1982, the Supreme Court held that the administrative process applicable to federal civil rights claims is not a jurisdictional prerequisite to suit, but rather “a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” Zipes v Trans World Airlines, 455 US 385, 393 (1982).

However, just two years later, the Court felt obliged to clarify its prior statement, stating, “[p]rocedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants. … [I]n the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.”  Baldwin County Welcome Center v Brown, 466 US 147, 152 (1984). The Court further clarified that it had not declared in Zipes that the requirement does not ever have to be satisfied; but only that it is subject to waiver and tolling, etc.

            In the recent case, the former employee had filed a charge at the EEOC alleging sexual harassment and retaliation. Later, she “amended” her charge (or thought she had) by writing on the intake questionnaire “religion”, “discharge” and “reasonable accommodation”.  Apparently, after the initial charge was filed, she was fired for failing to report to work on a Sunday due to a church commitment when she had been told she would be fired if she did not report. A point of fact: writing comments on the intake questionnaire is not how charges are amended.

            After receiving her notice of right to sue, the former employee brought a lawsuit that contained a claim of religion based discrimination. “Years into the litigation, Fort Bend asserted for the first time that the District Court lacked jurisdiction to adjudicate [the] religion-based discrimination claim because she had not stated such a claim in her EEOC Charge.” The district court granted the motion finding the requirement to be jurisdictional. The Fifth Circuit reversed holding that this was not a jurisdictional requirement, but rather the “requirement is a prudential prerequisite” to filing suit.

The Supreme Court agreed to hear the case to decide the issue once and for all. The issue was framed as follows: “whether a precondition to suit is a mandatory claim-processing rule subject to forfeiture, or a jurisdictional prescription.” The Court explained that jurisdictional requirements can’t be waived and, in fact, a court may raise the issue sua sponte (on its own) at any time. If a court does not have jurisdiction, it lacks authority to act in the case.

The Court characterized the charge filing requirement as “a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts.” “[A] rule may be mandatory without being jurisdictional, and Title VII’s charge-filing requirement fits that bill.”

So, there you have it. Employers should continue to raise the defense as early on in litigation, but a Plaintiff may be able to argue that there are reasons why the failure should be excused. Dismissal on this basis is not a certainty.

This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM) and an arbitrator with the American Arbitration Association. She can be reached at corr@plunkettcooney.com or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html

 

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. June 2019.

Merces / MMA Compensation In Michigan Survey

Merces Consulting is pleased to announce that the annual Merces / MMA Compensation In Michigan Survey (Manufacturing Edition) is now available for purchase.  For over 20 years Merces has collaborated with Lansing-based Michigan Manufacturers Association (MMA) to provide essential up-to-date compensation and benefits information for Michigan employers.

The current survey includes salary and bonus information for 120+ jobs covering accounting/finance, building/grounds maintenance, engineering, general executive, human resources, information systems, materials management, manufacturing (production, skilled trades and quality assurance/control), office/administrative and sales/marketing provided by MMA manufacturing members.

Contact Linda Budd, the Survey Director, to purchase a copy.

Linda Budd
Telephone: 248-721-9561
Email: lmbudd@mercesconsulting.com

American Society of Employers (ASE) Releases 2019 Compensation Survey Results

Modest Wage Gains Continue for Most, but Engineering, Quality, and HR See Above Average Growth

Media Contact: Heather Nezich, Communications Manager, ASE, hnezich@aseonline.org, 248.223.8040

Livonia, Mich. —May 29, 2019 — The American Society of Employers (ASE), an employer association serving Michigan employers for over 116 years, released the organization’s 2019 Compensation Survey results at its Compensation and Benefits Conference last week. It’s the 67th year that ASE has published the annual survey.  The findings were released by Mary E. Corrado, president and CEO of ASE.

“This year’s survey results showed a continuation of the modest wage gains we have seen for the last several years.  However, despite the lack of volatility in wages there remains challenges.  Digging deeper into the data does reveal that jobs that require technical skills are commanding higher rates of increases than others.  While that is not unexpected, it does require employers to proactively engage in ongoing market assessments,” stated Corrado.  “Unless something derails the current economic expansion, we expect pressures on wage growth to accelerate given the tightening labor supply,” added Corrado.

2019 Survey Demographics

A total of 335 companies, 57% of them located in the metro Detroit region, responded to the survey, which was distributed to human resource professionals via an online survey in January 2019. Nearly 40% of the respondents are classified as automotive suppliers, and 474 jobs were reported on.  83% of the organizations that responded have 1-500 employees.

2019 ASE Compensation Survey Highlights:

  • Actual wage increases, based on a constant sample of companies, increased 2.7% year over year.
  • Merit increase budgets, what a company budgets for performance-based pay increases, averaged 3%.  This is consistent with 2018 merit budgets.
  • Organizations offering variable or incentive pay showed a slight increase to 83% in 2019 compared to 81% in 2018.
  • Several fields witnessed average wage increases of 3.5% and higher, with the Engineering Support, Human Resources, Inspection / Quality and Supply Chain/Logistics job families each showing increases of 3.7% or higher.
  • Product Development Engineering and Electrical Engineering job groups average wage increases were 3.8% and 3.6% respectively.

To obtain a copy of the 2019 Compensation Survey results, contact Kevin Marrs, Vice President at ASE, 248-223-8025 or kmarrs@aseonline.org.

About the American Society of Employers (ASE) – a Centennial Organization

The American Society of Employers (ASE) is a not-for-profit trade association providing people-management information and services to Michigan employers. Since 1902, member organizations have relied on ASE to be their single, cost-effective source for information and support, helping to grow their bottom line by enhancing the effectiveness of their people. Learn more about ASE at www.aseonline.org.

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Causal Connection between Protected Activity and Adverse Action Supported By Good Deed

By:  Claudia D. Orr

My clients know what I am going to say when they want to “bend the rules” to do something nice for one of their employees: “No good deed goes unpunished.” This is just one issue that caused the employer trouble in Redlin v Grosse Pointe Public School System, a recent decision published by the U.S. Court of Appeals for the Sixth Circuit. Let’s look at what happened.

In September 2012, plaintiff Debra Redlin was hired as an Assistant Principal at the Grosse Pointe South High School. She and another Assistant Principal, Terry Flint, reported to Deputy Superintendent Jon Dean. In the summer of 2014, Moussa Hamka became the principal at the high school.

In 2014, Dean told Flint that he intended to conduct a “spot-check” on a social worker who was suspected of being intoxicated at work. Dean told Flint to keep it confidential, but Flint apparently warned the social worker. When Flint confessed, a letter of concern was placed in his personnel file.

In December 2014, Vice Principal Flint made statements to plaintiff about the media specialist’s evaluation that suggested he was going to try “to nail” the employee on his evaluation. Plaintiff warned the employee. That employee discussed the issue with Principal Hamka who told plaintiff she would be disciplined for disclosing the confidential information.

Plaintiff complained to Dean about the Principal Hamka’s comments and threat. Dean interpreted plaintiff’s complaint to be about sex discrimination and harassment. The complaint was resolved informally and both plaintiff and the principal committed to working together.

Following the resolution of plaintiff’s complaint, Dean met with Plaintiff to discuss her inappropriate disclosure of Flint’s evaluation of the media specialist and what her discipline would be for making the disclosure. Dean told her that he would hold plaintiff’s discipline in “abeyance” through the end of the school year since he knew she was looking for administrative positions in other school districts.

There it is; a good deed. Dean was trying not to tarnish plaintiff’s work record while she sought other jobs. Of course what follows the good is the punishment: Plaintiff testified that she interpreted this as a threat — that Dean wanted her gone and that if she did not leave the school district by the end of the school year, she would be disciplined.

In June 2015, Gary Niehaus became the new district’s superintendent. He decided to transfer plaintiff to a middle school because she had warned the employee about the performance review and “because of her gender complaint” against Hamka.  Good grief.  Seriously?  Wasn’t there anyone to advise him this was a really, really bad reason for the decision?  I know the school district’s attorney and I bet he about fell over with that testimony. While for two years plaintiff received the reduced wage rate paid to assistant principals at middle schools, Niehaus testified that this had been a mistake and he eventually paid her the difference in back pay.

I am going to skip a lot of the facts but in November 2015 plaintiff took a leave under the Family and Medical Leave Act (FMLA) for stress, filed a discrimination charge in December 2015 alleging sex discrimination and retaliation and, after she got a right to sue letter from the EEOC, plaintiff filed suit in the U.S. District Court for the Eastern District of Michigan. Plaintiff alleged, among other things, sex discrimination and retaliation for complaining about sex discrimination and for taking a FMLA leave. The court granted the school district’s motion for summary judgment and plaintiff appealed.

In short, the appellate court found plaintiff and Flint to be similarly situated and that, while both plaintiff and Flint disclosed confidential information, only Flint received a simple “letter of concern” which did not affect his performance review. By comparison, plaintiff received a “minimally effective” rating on her performance review which resulted in a contract limited to one year, no merit pay or increase and a performance improvement plan which carries with it a threat of termination.

It also found that the transfer to a middle school also satisfied the adverse action requirement for her sex discrimination and retaliation claims under Title VII and state civil rights law even though, in the end, she did not suffer a wage cut.  Her transfer outwardly appeared to be not only a loss of prestige but also a loss of salary.  The minimally effective rating on her performance review also had consequences.

Moreover, it was suggested to plaintiff that she should leave (Dean told plaintiff “he didn’t see [her] [belonging at the High School]”  and told her she would only be disciplined if she didn’t find another job before the end of the year) and Niehaus admitted transferring plaintiff, in part, because of the “gender complaint”.  These are not good facts.

There is a lot of analysis by the appellate court concerning the wrongdoing by plaintiff compared to Flint, the different decision makers involved in disciplining the two employees, the proximity in time between the sex discrimination complaint and adverse action, etc.  However, in the end, the discrimination and retaliation claims under the civil rights laws were reinstated.

This case demonstrates several things.  First, as I said above, no good deed goes unpunished.  Second, before taking action against an employee who has complained of discrimination (or in this case because the employee complained), it’s wise to seek legal advice.  And, third, just because an employee is not fired, that doesn’t mean the employer is not at risk for serious civil claims. Consulting with an employment attorney along the way may have saved the school system a lot of trouble, and expense.

 

This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM) and an arbitrator with the American Arbitration Association. She can be reached at corr@plunkettcooney.com or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. May 2019.

White House Directs Agencies to Tighten Visitor Visa Enforcement

By Alexandra LaCombe

 

At a glance

  • A recent Presidential Memorandum orders immigration agencies to develop plans that would reduce business visitor and tourist overstays in the United States, including those under the Visa Waiver Program.
  • The Memorandum also orders the agencies to develop enforcement proposals focused on countries with nonimmigrant overstay rates over 10%.

The issue

A new Presidential Memorandum directs the Department of State (DOS) and Department of Homeland Security (DHS) to recommend ways to reduce the number of business and tourist visitors who overstay their authorized period of admission in the United States, including those who use the Visa Waiver Program (VWP), as well as to take actions to reduce the overstay rates for nonimmigrant visa categories generally.

The Memo directs federal immigration agencies to do the following:

  • Visa Waiver Program recommendations: Within 180 days, DHS must report to President Trump on its ongoing efforts to reduce VWP overstays, as well as provide recommendations for further enforcement with respect to the program.
  • Targeted enforcement for countries with more than 10% B visa overstay rate: DOS, in conjunction with DHS and the Department of Justice, must provide President Trump with recommendations to reduce B overstays from countries with overstay rates over 10%, as identified by the DHS FY 2018 Entry/Exit Overstay Report. Proposed actions against nationals of these countries could include suspension or limitation of travel for current visitor visa holders, suspension of visitor visa issuance, limits to duration of admission to the U.S., and/or additional documentary requirements.
  • Take action to reduce overstay rates for all nonimmigrant visa types: DOS and DHS are ordered to “immediately” take action to reduce the overstay rates of all types of nonimmigrant visas. The memorandum specifically directs DOS and DHS to develop measures to impose admission bonds as a means of enforcing visa compliance across all nonimmigrant categories and submit a status report to the President on this issue.

What the Presidential Memorandum means for employers and foreign nationals

The Memorandum does not have immediate impact on the B-1/B-2 visitor visa program or the Visa Waiver Program, but is part of the Trump Administration’s ongoing focus on visitor visa compliance and enforcement. The Administration has recently added a biometrics screening requirement and new enforcement initiatives for certain nonimmigrants seeking to extend their stays in the United States, including visitors for business and tourism. The Department of Homeland Security is planning to issue a proposed regulation later this year that could place new limits on the visitor visa category.

Increased scrutiny of the visitor visa program and overstays generally highlights the vital importance of compliance with immigration program rules. Organizations may want to take steps to review their business visitor procedures to ensure compliance. All foreign nationals temporarily in the U.S. should ensure they are admitted by U.S. Customs and Border Protection (CBP) for the correct duration, and that they depart the United States by the expiration of their period of authorized stay. Foreign nationals can view their official duration of authorized stay at the CBP I-94 website.

If you need assistance with this, or any other immigration issue, please contact the author, Alexandra LaCombe, at (248) 649-5404 or alacombe@fragomen.com. Alexandra is a Member of the Legal Affairs Committee of Detroit SHRM and a partner at Fragomen Worldwide.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. May, 2019

CAPTRUST Announces Performance Results for 2018

 | Raleigh, NC

Firm ended fiscal year with 21.5 percent revenue growth and $65 billion in new client assets

RALEIGH, NC – April 25, 2019– CAPTRUST Financial Advisors (CAPTRUST), one of the nation’s leading independent wealth management and retirement plan advisory firms, released its 2018 calendar year performance results. CAPTRUST concluded 2018 with $65 billion in new client assets, bringing the firm’s total assets under advisement to more than $300 billion. The firm also saw 21.5 percent revenue growth, maintained a 97 percent client retention rate, added 96 new employees, and welcomed five new firms under the CAPTRUST brand.

“In 2018 we reached another growth milestone, crossing the 500-employee mark for the first time in CAPTRUST’s history”, said J. Fielding Miller, CEO, CAPTRUST.“We were also honored by InvestmentNewsas one of its 2019 Best Places to Work for Financial Advisors. This ranking and our continued growth are a testament to our talented team at CAPTRUST and our commitment to putting them at the forefront of all that we do.”

CAPTRUST, which is employee-owned, has recorded a 26.8 percent shareholder total return compounded since 2004. The company saw the addition of 37 new shareholders in 2018 for a total of 294 shareholders, or 57 percent of total employees.

As part of its commitment to give back to the communities it serves, CAPTRUST, along with its 501(c)(3) nonprofit organization, the CAPTRUST Community Foundation, donated more than $724,000 to worthy causes for a record year of charitable giving in 2018. The organization is well on its way to achieving its goal of donating $10 million by 2026.

“We are always looking for ways to not only attract the best talent, but also to highlight the work, unique ideas, and philanthropic efforts of the talent we currently have at CAPTRUST,” said Rick Shoff, managing director, CAPTRUST. “Our impressive team is the key to our continued success and this growth would not be possible without their hard work, dedication, and commitment to the firm and the communities in which they live.”

CAPTRUST also announced the winners of its annual Brick Awards during the firm’s Advisor Kickoff meeting. The Brick Awards go to employees who exemplify CAPTRUST’s mission to enrich the lives of its clients, colleagues, and communities through sound financial advice, integrity, and a commitment to service beyond expectation. The Brick Award categories and winners include:

  • MVP – Jon Meyer, Chief Technology Officer, Business Operations Group
    • Awarded to the person who has provided the most significant overall contribution to the firm. Set apart from the crowd, the MVP best represents the spirit and goals of the company mission.
  • Client Service – Pat Burger, Senior Client Management consultant, Business Operations Group
    • Awarded to the person who best represents CAPTRUST’s mission to enrich the lives of its clients with service that exceeds expectations. The winner demonstrates an extraordinary level of service, which helps to build relationships and ensure long-term client satisfaction and retention.
  • Community Service – Trae Cole, Client Relationship Manager, Business Operations Group
    • Awarded to the person who best represents the CAPTRUST mission to enhance the lives of people in need within its communities. Recipients of the Community Service Brick demonstrate great passion for helping others and are most generous with the gifts of their time, talent, and resources.
  • Financial Advisor of the Year – Barry Schmitt, Senior Vice President, Financial Advisor
    • Awarded to the person that best exemplifies the traits and characteristics of not only an advisor to his or her clients, but also as a mentor and supporter to his or her fellow advisors.
  • Step Up – Pete Ruffel, Institutional Solutions Team Leader, Consulting Solutions Group
    • Awarded to the person who has taken on a major new challenge or accepted additional responsibilities and enhanced the firm by their actions.
  • Rainmaker – Steve Schott, Principal and Director, Institutional Religious Retirement and Foundation Services
    • Given to the financial advisor (or advisory team) who brings the most new business to CAPTRUST in a given year. The award recognizes the advisor’s consulting skills and the necessity to continuously grow the CAPTRUST client base.
  • Innovation Award – Market Value Input Tool
    • Awarded to a CAPTRUST team or teammate who has developed an idea or initiative which benefitted CAPTRUST by improving its process or revolutionizing an approach, product, or service offering.

For media inquiries regarding this press announcement, or to speak to a CAPTRUST spokesperson, please contact: CAPTRUST@ficommpartners.com. For information about joining the CAPTRUST team, visit: captrust.com/advisorgrowth/.

About CAPTRUST
CAPTRUST Financial Advisors is an independent, employee-owned firm that provides investment advisory services to retirement plan fiduciaries, endowments and foundations, and comprehensive wealth planning services to executives and high-net-worth individuals. Headquartered in Raleigh, North Carolina, the firm represents more than $300 billion in client assets from its offices located across the U.S.

Legal Publication names Cooney among ‘Leaders in the Law’

Plunkett Cooney

By: Plunkett Cooney

 

 

FOR IMMEDIATE RELEASE
DATE:  May 14, 2019
CONTACT:  John E. Cornwell (248) 901-4008

 

Legal Publication names Cooney among ‘Leaders in the Law’

 

 

cooney_env.jpg

BLOOMFIELD HILLS, Mich. – May 15, 2019 – Plunkett Cooney partner Henry (Hank) B. Cooney was recently nominated as a 2019 “Leaders in the Law” by Michigan Lawyers Weekly (MLW), an industry publication serving the state’s legal community.

Cooney along with 29 other honorees were selected for, among other things, their significant accomplishments or achievements in practice, outstanding contributions to the practice of law in Michigan, leadership in improving the state’s justice system, seeking improvements to the legal and local communities, and setting an example for other lawyers.

The 11th annual luncheon and awards ceremony for the Class of 2019 was held on April 18 at the Detroit Marriott Troy. In addition, the honorees were profiled in a special section of the April 22 issue of MLW.

A member of the firm’s Litigation Department, Cooney has the distinction of having served for 16 years as President & CEO of Plunkett Cooney, one of the Midwest’s oldest and largest law firms, from 1998 to 2015. Among his responsibilities were the review and management of the Professional Code of Ethics for firm members, including all aspects of the attorney-client relationship, conflicts of interest, advocacy, public service and maintaining the integrity of the profession.

A 1980 graduate of University of Detroit School of Law, Cooney’s legal practice entails nearly 40 years of experience in the areas of product liability, construction liability and commercial

litigation. He is also frequently called upon to serve as a case arbitrator and facilitator under the provisions of Michigan’s alternative dispute resolution system. Cooney received his undergraduate degree from the University of Michigan in 1973.

Cooney is a member of the Detroit Metropolitan Bar Association and its Foundation, Michigan Defense Trial Counsel, American Bar Association, the State Bar of Michigan and the DRI – The Voice of the Defense Bar.

Always giving back to his community, Cooney is a past chair for the board of directors of University of Detroit Jesuit High School and the Michigan Roundtable for Diversity and Inclusion. He has also served on the boards of directors for the American Heart Association of Southeast Michigan and the board of trustees for Life Directions.

Established in 1913, Plunkett Cooney is a leading provider of transactional and litigation services to clients in the private and public sectors. The firm employs approximately 150 attorneys in eight Michigan cities, Chicago, Illinois, Columbus, Ohio and Indianapolis, Indiana. Plunkett Cooney has achieved the highest rating (AV) awarded by Martindale-Hubbell, a leading, international directory of law firms. The firm has also been selected by Crain’s Detroit Business as its inaugural Law Firm of the Year.

For more information about Hank Cooney’s selection as a Leader in the Law, contact the firm’s Director of Marketing & Business Development John Cornwell at (248) 901-4008 or via email at jcornwell@plunkettcooney.com.

 

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Dunsky Adams joins firm’s transportation law practice group

Plunkett Cooney

By: Plunkett Cooney 

 

FOR IMMEDIATE RELEASE
DATE:  May 14, 2019
CONTACT:  John E. Cornwell (248) 901-4008

 

 

Dunsky Adams joins firm’s transportation law practice group

 

dunsky-adams_env.jpgBLOOMFIELD HILLS, Mich. – May 14, 2019 – Attorney Michele Dunsky Adams recently joined the Transportation Law Practice Group of Plunkett Cooney, one of the oldest and largest law firms in the Midwest.

A member of Plunkett Cooney’s Bloomfield Hills office, Dunsky Adams focuses her practice in the areas of first- and third-party motor vehicle liability and no fault law, resolving medical provider and policyholder claims for personal injury protection benefits in automobile lawsuits. She also has experience handling legal issues that involve state and federal credit unions, family law, breach of contract disputes and personal injury claims.

A 2013 graduate from the Duke University School of Law, Dunsky Adams is admitted to practice in state and federal courts in Michigan, and she is a member of the State Bar of Michigan. Dunsky Adams received her undergraduate degree, with distinction, from the University of Michigan in 2009.

Plunkett Cooney’s Transportation Law Practice Group includes the talents of more than 20 attorneys across the states of Michigan, Ohio and Indiana. The group’s members provide an array of litigation and risk management services, including expertise in the areas of trucking liability, first- and third-party auto liability, cross-border claims with Canada, fraud investigation services and emergency accident response.

Established in 1913, Plunkett Cooney is a leading provider of transactional and litigation services to clients in the private and public sectors. The firm employs approximately 150 attorneys in eight Michigan cities, Chicago, Illinois, Columbus, Ohio and Indianapolis, Indiana. Plunkett Cooney has achieved the highest rating (AV) awarded by Martindale-Hubbell, a leading, international directory of law firms. The firm was also recently selected by Crain’s Detroit Business as its inaugural Law Firm of the Year.

For more information about Dunsky Adams joining Plunkett Cooney’s Transportation Law Practice Group, contact the firm’s Director of Marketing & Practice Development John Cornwell at (248) 901-4008 or jcornwell@plunkettcooney.com.

 

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EEO-1 Reporting:  The Drama Continues with 2017 Added Pay Data Reporting

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By: Miriam L. Rosen, McDonald Hopkins PLC

 

EEO-1 Reporting:  The Drama Continues with 2017 Added Pay Data Reporting

 

If you are looking for a little more EEO-1 drama, look no further.   In response to a federal district court order, the EEOC announced on April 4, 2019 that covered employers will have until September 30, 2019 to report 2018 pay data under the EEO-1 Component 2 reporting requirements.

Then, responding to the court’s mandate that the EEOC collect two years of pay data, the EEOC announced in early May 2019 that the EEO-1 Component 2 filing must include pay data for both calendar years 2017 and 2018. EEOC has indicated that it expects to open the online portal for submission of the Component 2 data in mid-July 2019.

Required Pay Data

Looking at a snapshot of the workforce for the applicable period, the EEO-1 Component 2 will require employers to report annual compensation data (W-2 Box 1 information) broken out by ten job categories, twelve salary bands, and race, gender, and ethnicity.

Component 2 will also require employers to report the aggregate of annual hours worked by job categories, salary bands, and race, gender, and ethnicity.  For non-exempt employees, this will require reporting of actual hours worked.  For exempt employees, an employer may use a proxy of 40 hours per week for full-time employees and 20 hours per week for part-time employees multiplied by weeks worked.

Is the Pay Data Reporting Requirement Likely to Change?

The EEO-1 reporting requirements have been like a roller coaster for employers in 2019 and the ride may not be over yet.  The Department of Justice has appealed the underlying court decision that reinstated the Component 2 data reporting requirement.    Although the appeal does not stay the district court’s order, it is possible that the reporting could be either delayed or stayed due to the pending appeal or for other reasons.

One of those “other” reasons could be the recent confirmation of Janet Dhillon as the new Chair of the EEOC.   After a wait of nearly two years, the U.S. Senate confirmed Dhillon on May 8, 2019 – finally giving the EEOC a quorum. Dhillon, like former Acting EEOC Chair Victoria Lipnic (who remains on the Commission), has expressed skepticism about the benefits of collecting pay data.

Where do thing stand now?

For now, employers need to prepare for the following:

  • Submit EEO-1 Component 1 data on employee race, ethnicity, and gender to the EEOC by May 31, 2019.
  • Submit EEO-1 Component 2 data on compensation and hours by job categories, salary bands, and race, gender, and ethnicity for 2017 and 2018 to the EEOC by September 30, 2019.

In this year of EEO-1 drama, it’s certainly possible that things could change. So, stay tuned!

This article was written by Miriam L. Rosen, who is Chair of the Legal Affairs Committee of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at mrosen@mcdonaldhopkins.com or at (248) 220-1342.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. May 2019.