Quick Hits - April 6, 2022 - American Society of Employers - ASE Staff

Quick Hits - April 6, 2022

Reminder:  EEO-1 reporting opens next Tuesday, April 12 and remains open until May 17th.

EEO-1 reporting may include nonbinary in the future: A spokesperson for the Equal Employment Opportunity Commission has told Bloomberg Law that the agency is thinking about adding information about nonbinary employees to the EEO-1 reports that must be filed each year by private sector employers with 100 or more employees.  The source for the article, which is behind a paywall, is Christine Nazer, National Press Spokesperson/Acting Director of Communications for the EEOC. The Office of Federal Contract Compliance Programs, which is responsible for federal contractors, is reportedly considering allowing employees to self-identify as nonbinary.  According to the Merriam-Webster online dictionary, nonbinary (at least in this context) is "relating to or being a person who identifies with or expresses a gender identity that is neither entirely male nor entirely female."  Source:  Constangy Brooks Smith & Prophete LLP 3/18/22

The EEOC is adding nonbinary to charges: The U.S. Equal Employment Opportunity Commission (EEOC) announced that it will promote greater equity and inclusion for members of the LGBTQI+ community by giving individuals the option to select a nonbinary “X” gender marker during the voluntary self-identification questions that are part of the intake process for filing a charge of discrimination. Recognizing that the binary construction of gender as either “male” or “female” does not reflect the full range of gender identities, the EEOC will add an option to mark “X” during two critical stages of the intake and charge filing process:  1. The EEOC will update the voluntary demographic questions relating to gender in the online public portal that members of the public use to submit inquiries about filing a charge of discrimination, as well as the Online Spanish Initial Consultation Form and Pre-Charge Inquiry Form that are sometimes used in lieu of the portal.  2.  The EEOC will also modify its charge of discrimination form to include “Mx.” in the list of prefix options.  Source:  EEOC 3/31/22

Kalpana Kotagal to be nominated to the U.S. Equal Employment Opportunity Commission:  President Joe Biden intends to nominate civil rights attorney Kalpana Kotagal to the U.S. Equal Employment Opportunity Commission. Currently a partner at Cohen Milstein Sellers & Toll PLLC, Kotagal represents plaintiffs in employment and civil rights litigation involving issues related to Title VII of the 1964 Civil Rights Act, the Equal Pay Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and the Fair Labor Standards Act. Kotagal also is a coauthor of the “Inclusion Rider,” a contractual clause template that sets guideposts for the auditioning and interviewing process in Hollywood. Big-name actors and filmmakers often use those riders to boost diversity in productions they work on. If confirmed, Kotagal would replace Republican commissioner Janet Dhillon when her term expires in July.  Source: Bloomberg 4/1/22

DHS is proposing regulations to update the I-9:  The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) issued a 60-day Notice for Comment regarding the proposed revisions of a currently approved collection of information (the I-9 Form).  The current version of the I-9 Form expires on October 31, 2022.  DHS is proposing the following revisions to the I-9 Form:  Compress Sections 1 and 2 from two pages to one to reduce employers’ paper use and storage burden.  Change Section 3 to a Reverification and Rehire Supplement that provides three separate areas to enter reverifications and rehires within 3 years of the date of the initial execution of an employee’s Form I-9. Employers would only print and use the supplement as needed, further reducing employers’ paper use and storage burdens.  Update the List of Acceptable Documents to include a link to List C documents issued by DHS and the acceptable receipts listed in 8 CFR 274a.2(b)(1)(vi)(A-C).  Reduce and simplify the instructions from 15 to 7 pages, reducing paper usage.  Remove electronic PDF enhancements to ensure that they can be completed on all electronic devices and are not software dependent.  Source: DHS

Drug use among employees is increasing:  The rate of positive drug test results among America's workforce reached its highest rate last year since 2001 and was up more than 30% in the combined U.S. workforce from an all-time low in 2010-2012, according to a new analysis released by Quest Diagnostics. The study was based on more than 11 million deidentified urine, hair, and oral fluid drug test results collected between January and December 2021. The overall positivity rate in the combined U.S. workforce, based on nearly nine million urine drug tests collected between January and December 2021, was up in 2021 to 4.6% compared to 4.4% in 2020 and up 31.4% from the all-time low of 3.5% just 10 years ago (2010-2012). The safety-sensitive workforce based on nearly 2.7 million urine drug tests stayed even year over year (2.2% in 2020 and 2021) and was 4.8% higher than 2017 (2.1% in 2017 versus 2.2% in 2021). In the general U.S. workforce, positivity increased 1.8% (5.5% in 2020 versus 5.6% in 2021) and was 12% higher than in 2017 (5.0% in 2017 versus 5.6% in 2021) and up each of the last five years.  What this shows is that employers have not shied away from using drug tests.  Source: Quest, CCH 3/31/22

More resignations coming: Almost half of employees are looking for a new job or plan to soon, according to a survey, suggesting the pandemic-era phenomenon known as the Great Resignation is continuing into 2022.  To that point, 44% of employees are “job seekers,” according to Willis Towers Watson’s 2022 Global Benefits Attitudes Survey. Of them, 33% are active job hunters who looked for new work in the fourth quarter of 2021, and 11% planned to look in the first quarter of 2022. The survey polled 9,658 U.S. employees from large and midsize private employers across a broad range of industries in December 2021 and January 2022. Nearly 4.3 million people quit their jobs in January, just shy of a monthly record set in November, according to most recent federal data. Almost 48 million people quit in 2021, an annual record.  So, what are you doing to retain your employees?  Source:  CNBC 3/22/22

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