The EEO-1 report that must be completed by some private sector companies and federal contractors is due by May 17^th. With the summer and warmer weather approaching, OSHA has started a national emphasis program to protect workers from heat illness and injuries. A federal district court has reinstated the independent contractor rule issued by the previous administration that was withdrawn by the current administration. The EEOC is adding a nonbinary option to its intake process when filing a discrimination charge.

EEO-1 Launched – The Equal Employment Opportunity Commission (EEOC) announced on April 12^th that the EEO-1 data collection was now open. The deadline for submission of the report is May 17, 2022. The EEO-1 report is a mandatory annual data collection that requires all private sector employers with 100 or more employees and federal contractors with 50 or more employees meeting certain criteria, to submit workforce demographics including data by race/ethnicity, sex, and job categories.

OSHA Announces National Emphasis Program to Protect Workers from Heat – The Department of Labor’s Occupational Safety and Health Administration (OSHA) has started a national emphasis program designed to protect workers from heat illness and injuries. The program became effective on April 8, 2022, remaining in effect for three years. As part of the program, OSHA announced it will conduct heat related workplace inspections. According to OSHA, “Heat illness affects thousands of indoor and outdoor workers each year and can tragically lead to death. Reducing workplace heat related illnesses and injuries is a top priority for the Department of Labor, and this national emphasis program is a way to immediately improve enforcement and compliance efforts, while continuing long-term work to establish a heat illness prevention rule.”

According to OSHA, workers suffer over 3,500 injuries and illnesses related to heat each year. OSHA indicated it will conduct inspections in over 70 high risk industries in indoor and outdoor work settings when the National Weather Service issues a heat warning or advisory for a local area. OSHA released a fact sheet with additional details on the national emphasis program.

Court Reinstates Independent Contractor Rule – The United States District Court for the Eastern District of Texas has reinstated a rule issued by the Department of Labor concerning independent contractor status under the Fair Labor Standards Act (FLSA). In this case, Coalition for Workforce Innovation, et. al v. Marty Walsh, Secretary of Labor, et. al, the District Court ruled that both the postponement of the March 8, 2021 effective date and the subsequent withdrawal of the rule violated the Administrative Procedure Act (APA). The District Court concluded, “in the absence of a uniform regulation that is consistent throughout the nation, a worker’s classification as an independent contractor or an employee is dependent on the happenstance of geography, i.e., the judicial circuit in which the worker resides or works. This outcome falls short of providing clarity to the workforce of the United States or to those who compensate them. Therefore, by not considering more limited courses of action or alternative approaches than the total withdrawal of the Independent Contractor Rule, the DOL did not take into account important aspects of the problem before it.”

A rule concerning independent contractor status under the FLSA was scheduled to take effect on March 8, 2021. With the change of administrations on January 20, 2021, the pending regulation was postponed on February 5, 2021, for 60 days with comments sought on the delay for a period of 19 days. On March 4, 2021, the Department of Labor postponed the effective date of the rule until May 7, 2021, and on March 8, 2021, published a notice of proposed rulemaking proposing to withdraw the rule with comments for 31 days, until April 12, 2021. On May 6, 2021, the Labor Department withdrew the rule with an immediate effective date.

The District Court believed that the primary purpose of the rule was to provide clarity to the economic realities test to determine if individuals are independent contractors or employees. The District Court decided that the Labor Department should have considered making potential changes to the rule rather than just withdrawing it.

The reinstated rule provides that to determine if an employment relationship existed, the following non-exhaustive list of factors may be considered: (1) the nature and degree of control over the work; (2) the individual’s opportunity for profit or loss; (3) the amount of skill required for the work; (4) the degree of permanence of the working relationship between the individual and the potential employer; and (5) whether the work is part of an integrated unit of production. The Independent Contractor Rule further identified two core factors—(1) the nature and degree of control over the work and (2) the individual’s opportunity for profit or loss—that would “typically (but not necessarily) carry greater weight” than the remaining factors.

The Labor Department may appeal the decision and/or issue a proposed rule concerning independent contractors.

EEOC Adds Nonbinary Gender Option - The U.S. Equal Employment Opportunity Commission (EEOC) announced that it will give individuals the option to select a nonbinary “X” gender marker during the voluntary self-identification questions that are part of the intake process when filing a charge of discrimination. According to EEOC Chair Charlotte A. Burrows, “The addition of a nonbinary gender marker to the EEOC’s charge intake process will be an important step to promote greater inclusion for members of the LGBTQI+ community.” The EEOC also will change its discrimination charge form to include “Mx.” in the list of prefix options.

Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.