The Equal Employment Opportunity Commission (EEOC) issued a fact sheet on the impact that using wearable technologies could have on federal EEO laws.  The Department of Homeland Security (DHS) finalized a rule making modifications to the H-1B visa program. The Wage and Hour Division issued an opinion letter stating that educational assistance provided to employees  do not constitute wages subject to garnishment. Following an adverse ruling by an appellate court, the Department of Labor (DOL) has withdrawn the tip credit rule. 

EEOC Issues Fact Sheet on Wearable Technologies in the Workplace – The Equal Employment Opportunity Commission (EEOC) has released a fact sheet on the impact that using wearable technologies has on federal equal employment opportunity (EEO)  laws. The EEOC notes that there is an increasing use of wearable technologies in the workplace and defines them as “digital devices embedded with sensors and worn on the body that may keep track of bodily movements, collect biometric information, and/or track location.” The fact sheet provides information on the ways in which federal EEO laws may apply to the use of wearable devices.

The EEOC notes that using wearable devices to collect information about physical or mental health conditions may be considered medical examinations or making disability-related inquiries under the Americans with Disabilities Act (ADA). The EEOC stated that the ADA limits these inquiries to those instances when it is “job related and consistent with business necessity.” Where employers use information from wearable devices to make employment decisions that result in an adverse effect on employees due to a protected basis, this may constitute a violation of EEO laws.   

The EEOC believes that employers may need to make exceptions to a wearable device policy. For example, employers may need to excuse employees from wearing a device if doing so is against the religion of the employees or would have a negative impact due to the pregnancy or disability of employees.

DHS Final Rule on H-1B Visa Program Effective on January 17^th – The Department of Homeland Security (DHS) issued a final rule effective on January 17^th that will modify the H-1B visa program. According to DHS, the new rule will “significantly enhance U.S. companies' ability to fill job vacancies in critical fields, strengthening our economy. The new rule modernizes the H-1B program by streamlining the approval process, increasing its flexibility to better allow employers to retain talented workers, and improving the integrity and oversight of the program.”

The H-1B visa program allows employers in the U.S. to employ foreign workers temporarily in occupations that require highly specialized knowledge and a bachelor’s or higher degree in the specialty or its equivalent. DHS stated that the new rule will require employers to complete a modified version of Form I-129, Petition for a Nonimmigrant Worker for all petitions filed starting on January 17^th and which can be accessed on www.uscis.gov. The final rule changes the definition and criteria for specialty occupation positions, extends some flexibilities for students on an F-1 visa seeking to change their status to H-1B to avoid disruptions in status and employment authorization, provides for faster processing of applications for most individuals who had previously been approved for an H-1B visa, and codifies the authority to conduct inspections and impose penalties.  

Tuition Reimbursement Not Subject to Wage Garnishment – The Wage and Hour Division (WHD) of the Department of Labor issued an opinion letter finding that employer-provided tax-free educational assistance programs provided under Section 127 of the Internal Revenue Code are not earnings under the Consumer Credit Protection Act’s (CCPA) garnishment limitations. The opinion letter concludes that the payments are not earnings and “the employer should not include such payments and reimbursements when calculating the employee’s disposable earnings for purposes of determining the maximum amount of an employee's pay that may be garnished under the CCPA.”

The CCPA limits the amount of disposable earnings that can be garnished, with earnings being defined as “compensation paid or payable for personal services whether denominated as wages, salary, commission, bonus…” According to the opinion letter, the CCPA definition relates to the services provided by employees. The tuition reimbursement program addressed in this opinion letter only requires a certain number of hours worked to be eligible to participate and “its benefits are generally available to employees without regard to their salary or wage level, the quality of their work, or the quantity of their work.” According to the WHD, employees are not required to take work-related courses.

DOL Withdraws Tip Credit Rule – On December 17^th, the United States Department of Labor (DOL) withdrew the tip credit rule. The withdrawal follows the ruling by the United States Court of Appeals for the Fifth Circuit that the tipped employee rule was contrary to the text of the Fair Labor Standards Act (FLSA) and also was arbitrary and capricious.

The FLSA defines tipped employees as engaged in an occupation in which they receive more than $30 per month in tips. The law allows employers to take a tip credit that enables the employer to pay tipped employees $2.13 per hour since a large part of the earnings of those employees come from tips. The law requires that the tips of employees make up the difference between the $2.13 per hour wage and the minimum wage of $7.25 per hour. Where that does not occur, the employer is responsible for the difference. The regulations included a dual jobs provision which recognized that employees may be employed in both a tipped and non-tipped occupation. Employers can only take the tip credit for the time employees spend working in a tipped occupation. At the same time, the regulation recognized that tipped employees may perform “related” duties that are not “themselves . . . directed toward producing tips,” and used the example of a server who “spends part of her time” performing non-tipped duties, such as “cleaning and setting tables, toasting bread, making coffee and occasionally washing dishes or glasses.”

In 2021, DOL issued a final rule that provided that the tip credit could only be taken for work performed by tipped employees that is part of the tipped employees occupation. The rule defined three categories of work: 1) directly tip-producing work, 2) directly supporting work, and 3) work not part of the tipped occupation. The rule provided that if more than 20% of the workweek of tipped employees is spent on directly supporting work, the employer cannot claim the tip credit for the excess. Additionally, directly supporting work may not be performed for more than 30 minutes at a time and the tip credit is unavailable for any time spent on work that is not part of the tipped occupation. The Fifth Circuit believed that DOL was not allowed to “rewrite clear statutory terms to suit its own sense of how the statute should operate.”

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 was an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.