Federal Employment Law Update – March 2018

EEO-1 Reporting and Employees Who Regularly Report to Client Sites

The portal for 2017 EEO-1 reporting is open and reports must be submitted and certified by March 31, 2018 at the latest.

The federal Equal Employment Opportunity Commission (EEOC) has addressed the issue that there may be some confusion as to how employers are to report employees working at client sites (a workplace the employer does not own but where the employee reports for work). According to the EEOC’s 2017 EEO-1 User Guide (see page 132), employers must still submit an EEO-1 report under the address of the client site for those employees, as opposed to the employer’s own address.

See How to File an EEO-1 Report

IRS Updates Withholding Calculator and Releases New Form W-4

On February 28, 2018, the federal Internal Revenue Service (IRS) released an updated Withholding Calculator and a new version of Form W-4 following passage of the Tax Cuts and Jobs Act in December.

The Tax Cuts and Jobs Act made changes to the tax law, including increasing the standard deduction, removing personal exemptions, increasing the child tax credit, limiting or discontinuing certain deductions, and changing the tax rates and brackets.

If changes to withholding should be made, the Withholding Calculator gives employees the information they need to fill out a new Form W-4, Employee’s Withholding Allowance Certificate.

More information is available at the IRS page, Withholding Calculator Frequently Asked Questions.

Read the press release

NLRB Vacates Hy-Brand and Browning-Ferris Joint Employment Standard Reinstated

On February 26, 2018, the National Labor Relations Board (NLRB) announced that it vacated its December 14, 2017 decision in Hy-Brand Industrial Contractors regarding the joint employment standard. As a result, the Obama-era, employee-friendly joint employment standard established by Browning-Ferris Industries was reinstated. Under the reinstated Browning-Ferris standard, a company can be found to be a joint employer based on the potential of its ability to exercise control over terms and conditions of employment, regardless of whether the actual authority is exercised. This is an “indirect control” standard and is considered the main factor in determining whether a joint employer relationship exists, and thus liability, under the National Labor Relations Act (NLRA).

According to the NLRB, Hy-Brand was vacated due a determination by the board’s designated agency ethics official that member William Emanuel is, and should have been, disqualified from participating in the Hy-Brand proceeding. In a memorandum issued on February 9, 2018, the U.S. Inspector General found that Emmanuel’s former law firm was involved in the original Browning-Ferris decision, and subsequently, he should have recused himself from the Hy-Brand decision.

Because the Board’s Decision and Order in Hy-Brand has been vacated, the overruling of the Board’s decision in Browning-Ferris Industries, 362 NLRB No. 186 (2015), is of no force or effect.

Read the press release and order