American Society of Employers

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What’s New for EEO-1 Reporting in 2023?

19 September 2023

What’s New for EEO-1 Reporting in 2023?

Author: Anthony Kaylin

Since 1966 private employers with 100 or more employees and federal contractors with 50 or more employees and that meet certain criteria are required to report annually the number of individuals they employ by job category, sex, and race or ethnicity.  The EEO-1 report, although filed in 2023, is for the 2022 year.  So, the report is called 2022 EEO-1 Component 1.

NLRB Joins Non-compete and Training Repayment Fray

19 September 2023

NLRB Joins Non-compete and Training Repayment Fray

Author: Michael Burns

Earlier this year the Federal Trade Commission (FTC) issued proposed rules prohibiting the use of non-compete agreements with most employees. Non-compete agreements restrict an employee from leaving an employer and taking another job – usually but not always – in the same business, for a specific period of time and within a limited geographic area. Historically the purpose of non-compete agreements was to protect confidential information about a business from being poached by a...
U.S. Department of Labor Announces New Proposed FLSA Salary Level Test

5 September 2023

U.S. Department of Labor Announces New Proposed FLSA Salary Level Test

Author: Michael Burns

As reported last week, on August 30, 2023, the U.S. Department of Labor (DOL) announced it is proposing a revised rule that will increase its Salary Level Test by revising part of the Exemption Tests in its regulations. To be classified as an exempt employee under the DOL regulations, the job must meet three tests as outlined by the FLSA regulations:

OMB Approves OFCCP’s New Scheduling Letter

29 August 2023

OMB Approves OFCCP’s New Scheduling Letter

Author: Anthony Kaylin

The White House Office of Management and Budget (OMB) has approved the U.S. Department of Labor’s Office of Federal Contract Compliance Program’s new scheduling letter.  The updated scheduling letter applies to supply and service compliance evaluations scheduled on or after August 24, 2023.

Where Religion and Civility Become Loggerheads

22 August 2023

Where Religion and Civility Become Loggerheads

Author: Anthony Kaylin

Charlene Carter was a flight attendant at Southwest.  She allegedly claimed that she was fired because she objected to her union's participation in a protest for which Planned Parenthood was a sponsor.  Prior to that, Carter sent repeated messages on social media to the president of Carter's flight attendant union, expressing outrage over the union president’s alleged pro-abortion beliefs. The union president attended the 2017 Women’s March in Washington, D.C....
DOL Releases Proposed PWFA Pregnancy Protection Regulations

15 August 2023

DOL Releases Proposed PWFA Pregnancy Protection Regulations

Author: Michael Burns

Early last week the Department of Labor issued notice of proposed regulations that provide employers guidance on how to comply with the newly enacted Pregnant Workers Fairness Act (PWFA). The PWFA took effect June 27, 2023, and applies to employers with 15 or more employees.

NLRB Makes Handbook Policies Easier to Challenge as “Unfair” and an NLRA Violation

9 August 2023

NLRB Makes Handbook Policies Easier to Challenge as “Unfair” and an NLRA Violation

Author: Michael Burns

Not unexpectedly, last week the National Labor Relations Board (NLRB) changed its work rule test. The NLRB’s work rule test assesses whether particular employer policies (rules) illegally restrict workers’ rights. The Biden labor Board, now comprised of his appointees, and its General Counsel stated that since this Administration came into office, it would be reviewing many Trump-era labor rules and this rule in particular.

OFCCP Guts PDN Rule

8 August 2023

OFCCP Guts PDN Rule

Author: Anthony Kaylin

The U.S. Department of Labor’s Office of Federal Contractor Compliance Programs (OFCCP) issued final regulations on August 4, 2023, that essentially gut the 2020 rule on Predetermination Notices (PDN).  Essentially, the new rule takes out all transparency of the conciliation process. 

Employee Handbooks That Cover Unionized Workers Require Care

8 August 2023

Employee Handbooks That Cover Unionized Workers Require Care

Author: Michael Burns

It used to be inadvisable to cover unionized workers under the policies of an employee handbook. This was because the collective bargaining agreement was the policy/rule book for that set of employees. For some time now, some employers that have both union and non-union workers have included the union employees as covered by the handbook by including handbook disclaimer statements addressing this. The disclaimer statement would be put at the front of the handbook or many times throughout the...
Staying Compliant: The Importance of Employers Keeping Up to Date with the ADA in 2023

1 August 2023

Staying Compliant: The Importance of Employers Keeping Up to Date with the ADA in 2023

Author: Linda Olejniczak

It is crucial for employers to remain vigilant and up to date on the ADA's provisions to ensure they provide equal opportunities and accommodations for their employees. By understanding the ADA's requirements, employers can avoid unintentional discrimination and ensure that they provide reasonable accommodations to individuals enabling them to fully participate in the workforce. Failure to comply with the ADA can lead to costly and time-consuming litigation.
USCIS Announces Updated I-9 Form and Remote Document Inspection Program

25 July 2023

USCIS Announces Updated I-9 Form and Remote Document Inspection Program

Author: Michael Burns

The U.S. Citizenship and Immigration Service (USCIS) announced that an updated Form I-9 will be available August 1, 2023. This will replace its Form I-9 that has been in use since October 2019.  Since November of 1986, employers hiring any person to perform labor or services in the United States must have a completed I-9 form on file for that employee.

Two New Federal Laws Compel Consideration of New Handbook Policies

18 July 2023

Two New Federal Laws Compel Consideration of New Handbook Policies

Author: Michael Burns

With the enactment of both the Pregnant Workers Fairness Act (PWFA) effective June 27, 2023, and the Nursing Mothers Act also known as the PUMP Act, covered employers should consider adding new policies to communicate compliance and inform employees what they are providing them as a result of those laws.

Watch Out – Colorado Passed Equal Pay for Equal Work Act

18 July 2023

Watch Out – Colorado Passed Equal Pay for Equal Work Act

Author: Anthony Kaylin

The Colorado legislature has passed the Ensure Equal Pay for Equal Work Act, amending the Equal Pay for Equal Work Act (EPEW) to clarify and enhance an employer’s obligations relating to the announcement of a promotional opportunity.  The effective date is January 1, 2024.  Why does this matter to Michigan employers?  Because Michigan is seemingly taking all of the progressive employment initiatives throughout the country and trying to pass them into law...
Can an Employee Refuse to Work with Another Employee Because It Violates Their Religious Belief?

11 July 2023

Can an Employee Refuse to Work with Another Employee Because It Violates Their Religious Belief?

Author: Anthony Kaylin

The Supreme Court ruled on June 30th in Creative LLC v. Elenis, No. 21–476 (6/30/23) that the First Amendment prohibits the state of Colorado, through its antidiscrimination statute, from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.  Although it is framed as a public accommodation case, this case, along with the Groff v. DeJoy, Postmaster General (600 U.S.___2023) religious accommodation case, may make it interesting...
Be Aware of Credit Check Restrictions That Vary by Location

11 July 2023

Be Aware of Credit Check Restrictions That Vary by Location

Author: Susan Chance

Change is a constant, and that is certainly true in background screening laws. Some changes seem like common sense and are easy to apply, such as having a clear and concise disclosure form. Making sure that anyone giving permission for an employment background check understands what they are agreeing to is basic fairness, and unless an employer has some nefarious intent in mind for a background check, this should be an easy compliance item.

How to Handle Religious Accommodations After the Supreme Court Decision

30 June 2023

How to Handle Religious Accommodations After the Supreme Court Decision

Author: Michael Burns

Among the bevy of U.S. Supreme Court opinions handed down last week, the Court ruled on what the undue hardship standard should mean within the context of accommodation for religious practice and belief. HR will have to re-evaluate how they handle requests for religious accommodation.

National Labor Relations Board Again Tightens Its Grip on Definition of Independent Contractor

20 June 2023

National Labor Relations Board Again Tightens Its Grip on Definition of Independent Contractor

Author: Michael Burns

The issue of employee versus independent contractor classification is being looked at by many courts and agencies. We have been waiting for the U.S. Department of Labor to issue its regulations on independent contractor status for some time. States, including Michigan, are introducing legislation to address what an independent contractor is, and just last week the National Labor Relations Board (NLRB) ruled on a case looking to establish a stricter definition of independent contractor.
Know the FCRA Requirements for Background Checks

20 June 2023

Know the FCRA Requirements for Background Checks

Author: Susan Chance

Anyone running an employment background check through a third party, such as a background screening company such as ASE and/or automated verification systems is considered a user of consumer reports and therefore must follow the requirements of the FCRA.

Keep Your Handbook Up to Date – Lactation and Remote Work Policies

30 May 2023

Keep Your Handbook Up to Date – Lactation and Remote Work Policies

Author: Michael Burns

With the passage of the PUMP Act last year employers with 50 or more employees should now consider including a policy addressing nursing mothers in the workplace. Employers under 50 in size may have an exemption but only if they can demonstrate that compliance for a particular employee causes undue hardship.

Two New Michigan Bills Introduce California’s Difficult to Meet ABC Contractor Test

23 May 2023

Two New Michigan Bills Introduce California’s Difficult to Meet ABC Contractor Test

Author: Michael Burns

Independent Contractors (IC) are now under threat in Michigan. Two Bills were introduced that would significantly reduce the number of independent contractors in this state. House Bill 4390 and 4391 brings California’s infamous ABC test to Michigan.

Can You Fire Someone for “Fit?”

16 May 2023

Can You Fire Someone for “Fit?”

Author: Anthony Kaylin

Be wary if terminating an employee due to “fit.”  In a case coming out of the U.S. Fourth Circuit Court of Appeals, the court found that the "not a good fit" approach may be a legitimate reason for termination, but many lawyers say this could lead to major liability for the employer.

Detroit Tigers Face Race and Age Discrimination Claim for Termination of Clubhouse Manager

16 May 2023

Detroit Tigers Face Race and Age Discrimination Claim for Termination of Clubhouse Manager

Author: Michael Burns

The Detroit Tigers longtime Visiting Team Clubhouse Manager was let go in 2022 based on poor ratings received by visiting ball clubs going back to a 2017-2018 survey. The 58-year-old manager had been employed in that position for over 30 years, and his ratings during that tenure had been generally positive. The released manager is also African American and was replaced by a younger white employee.  John Nelson, the terminated employee, sued the Detroit Tigers for age and race...
I-9’s Completed Remotely (Virtually) During COVID Will Now Require In-Person Updating

9 May 2023

I-9’s Completed Remotely (Virtually) During COVID Will Now Require In-Person Updating

Author: Michael Burns

Last week the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced effective July 31, 2023, remote verification of I-9 documentation will no longer be allowed.

NLRB Continues to Extend Worker Protections Up to the Possible Violation of Civil Rights Law

2 May 2023

NLRB Continues to Extend Worker Protections Up to the Possible Violation of Civil Rights Law

Author: Michael Burns

On Monday a three-member panel of the National Labor Relations Board (NLRB) overturned a previous decision addressing employee misbehavior and will now examine outbursts and misbehavior of workers during different circumstances involving protected activity through a trio of tests. The tests applied will be “context specific” and will look at picket line activity, confrontation with supervisors or managers, and what is said on social media differently. (Lion Elastomers LLC 2023)
Unemployment Tax Rules for Out-of-State Employers

25 April 2023

Unemployment Tax Rules for Out-of-State Employers

Author: Linda Olejniczak

Remote work offers companies and employees more flexibility. We’re no longer limited by geography. Technology makes it easy to collaborate across the entire country. However, the complex issues that arise with out-of-state employees can be a barrier to nationwide hiring practices—and failure to comply can result in large fines and fees.

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