Health Care Nondiscrimination Notice Requirement Is Going Away
The Department of Health and Human Services' has removed requirements that employers issue non-discrimination statements to employees that will go into effect on August 18, 2020. Read this blog post to learn more.
On Aug. 18, 2020, the Department of Health and Human Services' (HHS's) finalized changes to the Affordable Care Act's Section 1557 nondiscrimination rules will take effect, removing requirements that employers issue health care nondiscrimination statements to employees and add health care nondiscrimination taglines to employee communications.
Prior to the changes under a final rule HHS published on June 19, employers had to ensure that they, along with their insurers (for fully insured plans) or third-party administrators (for self-insured plans), abided by a 2016 HHS rule requiring employer-sponsored plans to:
- Create and maintain a notice of health care nondiscrimination.
- Include it in "significant communications" along with taglines in 15 different languages advising individuals of the availability of language assistance.
- Include similar taglines for other communications but only in three different languages.
These notices are still required until Aug. 18.
"Now more than ever, Americans do not want billions of dollars in ineffective regulatory burdens raising the costs of their health care," said Roger Severino, director of the Office for Civil Rights at HHS.
Less Paperwork and Lower Costs
"The final rule eliminated the requirement to post the discrimination notice and add taglines," said John Kirk, an attorney at law firm Graydon in Cincinnati. "The final rule also eliminated the requirement that the discrimination notice and taglines be included with all significant publications sent by the organization. This change will be a significant cost and administrative timesaver for most entities."
Employers offering employee benefit plans that were subject to the prior 2016 rule "should review any notice and disclosure obligations and may begin revising their disclosures to remove the nondiscrimination statement and required taglines," Kirk advised.
"This is welcome news for employers that were required to create and maintain these complicated notices," according to compliance firm HUB International. "In the preamble to the new final rules, HHS stated that the notices were costing employers and other entities hundreds of millions to billions of dollars, but were not, in HHS's view, providing meaningful additional help to individuals."
HUB noted that "the onerous notice requirement is gone, but nondiscrimination rules still generally apply," prohibiting discrimination in health care on the basis of race, color, national origin, sex, age or disability.
Overshadowed by Transgender Controversy
Most coverage of the HHS final rule focused on its controversial rollback of anti-discrimination protections based on gender identity, which overshadowed the rule's repeal of the notice and tagline provisions under the 2016 regulation.
A coalition of LGBTQ groups and health care providers are suing the Trump administration, alleging the new HHS rule conflicts with the Supreme Court's June 15 decision in Bostock v. Clayton County, Ga., which found that the prohibition against sex discrimination in the workplace under Title VII of the Civil Rights Act covers sexual orientation and gender identity.
SOURCE: Miller, S. (16 July 2020) "Health Care Nondiscrimination Notice Requirement Is Going Away" (Web Blog Post). Retrieved from https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/health-care-nondiscrimination-notice-requirement-is-going-away.aspx
Employers Must Report 2017 and 2018 EEO-1 Pay Data
The Equal Employment Opportunity Commission (EEOC) is requiring that all employers report their pay data, broken down by race, sex and ethnicity, from 2017 and 2018 by September 30. Continue reading this post from the SHRM to learn more.
The Equal Employment Opportunity Commission (EEOC) has announced that employers must report pay data, broken down by race, sex and ethnicity, from 2017 and 2018 payrolls. The pay data reports are due Sept. 30.
Employers had been waiting to learn what pay data they would need to file—if any at all—as litigation on the matter ensued. A federal judge initially ordered the EEOC to collect employee pay data for 2018. The National Women's Law Center (NWLC) and other plaintiffs wanted the EEOC to collect two years of data, as the agency was supposed to under a new regulation before the government halted the collection in 2017.
Judge Tanya Chutkan of the U.S. District Court for the District of Columbia sided with the plaintiffs and gave the EEOC the option of collecting 2017 pay data along with the 2018 information by the Sept. 30 deadline or collecting 2019 pay data during the 2020 reporting period. The EEOC opted to collect the 2017 data.
The agency said it could make the collection portal available to employers by mid-July and would provide information and training to employers prior to that date.
Immediate Steps
"We are awaiting confirmation from the EEOC or the contractor it is hiring to facilitate the pay-data collection on how to lay out the data file for a batch upload," said Alissa Horvitz, an attorney with Roffman Horvitz in McLean, Va.
But employers should take some steps immediately. They should reach out to their subject-matter and technical experts and pull together resources to ensure that the required data components can be captured, analyzed and reported by Sept. 30, said Annette Tyman, an attorney with Seyfarth Shaw in Chicago.
Filing the additional reports will impose unanticipated burdens for HR, IT and legal departments, as well as third-party consultants, she noted. "It is unclear whether any further litigation options will impact the Sept. 30 deadline, and we are instructing employers to assume they must comply."
Employers should keep in mind that they still must submit their 2018 data for Component 1 of the EEO-1 form by May 31, unless they request an extension. Note that the EEOC recently shortened the extension period for employers to report Component 1 data from 30 days to two weeks. So the extension deadline is now June 14.
Component 1 asks for the number of employees who work for the business by job category, race, ethnicity and sex. Component 2 data—which includes hours worked and pay information from employees' W-2 forms by race, ethnicity and sex—is the subject of the legal dispute.
Data Collection
Businesses with at least 100 employees and federal contractors with at least 50 employees and a contract with the federal government of $50,000 or more must file the EEO-1 form. The EEOC uses information about the number of women and minorities companies employ to support civil rights enforcement and analyze employment patterns, according to the agency.
The revised EEO-1 form will require employers to report wage information from Box 1 of the W-2 form and total hours worked for all employees by race, ethnicity and sex within 12 proposed pay bands.
The reported hours worked should show actual hours worked by nonexempt employees and an estimated 20 hours per week for part-time exempt employees and 40 hours per week for full-time exempt employees.
"Filling out the added data in the EEO-1 form will present a large amount of work, especially as there's great potential for human error when populating the significantly expanded form," said Arthur Tacchino, J.D., chief innovation officer at SyncStream Solutions, which provides workplace compliance solutions.
Employers should start looking at their data now and conduct an initial assessment of their systems, said Camille Olson, an attorney with Seyfarth Shaw in Chicago. Identify the systems that house the relevant demographic, pay and hours-worked data and determine how to pull the information together, she said.
Pulling EEO-1 data is much simpler for Component 1, she noted, because it only involves reporting the employer's headcount by race, ethnicity and sex—whereas collecting pay information involves more data points. Additionally, employers may use different vendor systems at different locations, some employees may have only worked for part of the year, and other employees may have been reclassified to exempt or nonexempt.
"Employers may want to inquire with their current vendors—payroll or otherwise—or look for outside vendors that may be able to assist them with this reporting requirement," Tacchino said.
Under some circumstances, employers may be able to seek an exemption (at the EEOC's discretion) if filing the information would cause an undue burden. "Mega employers" may not be able to show an undue burden, but this could be an option for smaller businesses, said Jim Paretti, an attorney with Littler in Washington, D.C. But that will depend on how the parties decide to move forward.
The Court Battle
The EEO-1 form was revised during President Barack Obama's administration to add the Component 2 data, but the pay-data provisions were suspended in 2017 by President Donald Trump's administration. The NWLC challenged the Trump administration's hold on the pay-data collection provisions, and on March 4, Chutkan lifted the stay—meaning the federal government needed to start collecting the information.
On March 18, however, the EEOC opened the portal for employers to submit EEO-1 reports without including the pay-data questions. Chutkan subsequently told the government to come up with a plan.
The EEOC proposed the Sept. 30 deadline for employers to submit Component 2 data, claiming that the agency needed more time to address the associated collection challenges. Furthermore, the EEOC's chief data officer warned that rushing the data collection may yield poor quality data. Even with the additional time, the agency said it would need to spend more than $3 million to hire a contractor to provide the appropriate procedures and systems.
Robin Thurston, an attorney with Democracy Forward and counsel for the plaintiffs, said at an April 16 hearing that the plaintiffs don't want the agency to compromise quality. But they also wanted "sufficient assurances" that the EEOC will collect the data by Sept. 30.
On April 25, Chutkan ordered the government to provide the court and the plaintiffs with periodic updates on the EEOC's progress and to continue collection efforts until a certain threshold of employer responses has been received.
SOURCE: Nagele-Piazza, L. (2 May 2019) "Employers Must Report 2017 and 2018 EEO-1 Pay Data" (Web Blog Post). Retrieved from https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/eeo-1-pay-data-report-2017-2018.aspx
Why equality matters in the workforce
As the world prepares for the next great technological leap forward since the industrial revolution — through AI, machine learning and the internet of things — employers need to ask who’s going to be left behind in that transformation. According to Tony Prophet, Salesforce’s Chief Equality Officer who recently spoke at the Great Place to Work for All conference in San Francisco, employers must think if these innovations will it make the world more equal or less equal.
One of the four core values at Salesforce is equality, said Prophet. Not only is it important externally, but recognizing it as part of your company’s foundation impacts your decisions, and it starts at the top.
“The people most at risk, you can see it happening over the last decade, are often young women, girls, people of color,” he said. “We naturally want to create opportunities for everyone.”
Prophet noted that the company views itself as having a higher purpose to drive toward an age of company equality. Alos, the CEO and senior executives must set the tone where equality can be effective, and it’s a philosophy that has been a governing value from the beginning.
And as the company moves forward, Salesforce rests on four pillars of equality:
· Equal opportunity — inclusion for all.
· Equal rights — equality for every human being.
· Equal pay — equal pay for equal work.
· Equal education — equal access to quality education.
“None of us are going to be equal until all of us are equal,” Prophet said. And in creating this culture, the company created employee-led and employee-organized groups centered around common life experiences or backgrounds, and their allies.
Equality is an increasing value as discrepancies materialize through globalization, added Michael Rogers, CEO of iFocus: Human Capital Solutions, a consulting firm.
He points to vocational scholars, such as Boston College Lynch School of Education’s David Blustein, who note that access to education, fair consideration for work and the ability to make career decisions are not the same for all.
“Organizations that recognize and address these disparities, through strong organizational culture, position themselves for success now and in the future,” Rogers said.
Back at Salesforce, Prophet noted the employers as implemented a number of groups, called Ohana Groups – built around the Hawaiian concept of Ohana, which means family. These groups include Outforce for the LGBTQ community, Vetforce for the veteran community and BOLDforce to support the black community.
“Be an ally,” he urged. “You can be someone’s ally because you’re there to support your family. One of the things we’ve done is be more systematic in being an ally, it doesn’t mean you agree on every issue.”
Prophet also believes the one of the biggest reasons Salesforce has remained on the list of great places to work is because of the culture it’s created.
Nobody wants to work where they feel like they have to leave some fraction of their identity at the door for fear of retaliation, he said. “But instead [they want to be] working at a company where everyone is seen, everyone feels valued and everyone is heard.”
