Kansas Employment Law Blog

As if you could forget, we’re now less than two months from the court-mandated September 30, 2019, deadline to submit EEO-1 Component 2 data to the EEOC. Every employer with at least 100 total employees (across all locations) must submit a count of employees broken down by establishment, gender/race-ethnicity combination, EEO job category, and pay band, as well as the total number of hours worked for all employees in each one of those unique combinations. That’s more than 3,500 data points per establishment!

Here are a few reminders for you as you collect and prepare your information for filing:

You must select an employee snapshot from one pay period from October through December of each year (2017 and 2018); it does not have to be the same period you used for EEO-1 Component 1 reporting (which you previously filed).
You must count all full and part-time employees on your payroll for that period; you do not count “leased” employees (such as temp agency employees) or temporary or seasonal employees.
You must group employees by pay band based on their final, W-2 Box 1 wages for each calendar year. Do not prorate or otherwise adjust these amounts.
For non-exempt workers, you must count actual hours worked, which (under the FLSA regulations, which are used to count hours for this reporting) does not include, for example, paid time off, vacation, or holiday hours.

Bill Matthews, partner at Foulston Siefkin LLP and subcommittee member of the Kansas Bar Association (KBA) Section on Corporation, Banking and Business Law, was the principal drafter on the team that prepared revisions to the Kansas Revised Limited Liability Company Act (KRLLCA) and the Business Entity Standard Treatment (BEST) Act that were recently made law. Other subcommittee members included Webb Hecker, Virginia Harper Ho, William Quick, and Garrett Roe.

“Updates to our business entity laws, like the recent updates to the Kansas Revised Limited Liability Company Act, are important because they provide access to the latest innovations in business law to Kansas businesses and help make Kansas an attractive jurisdiction to form and relocate businesses,” Matthews said. The new provisions include permitting the division of an LLC, establishing public benefit LLCs, and wholesale amendments for series LLCs, and modifications address consent/approval, blockchain technology, and default fiduciary duties, among others. Matthews testified in support of the proposed legislation on behalf of the KBA before the Kansas House and Senate Judiciary Committees this spring.

The KRLLCA, modeled after the Delaware Limited Liability Company Act (DLLCA), was adopted in 1999 and replaced Kansas’s original LLC act. The last significant revision to the KRLLCA occurred in 2014 with several amendments between 2014-16, including the adoption of the BEST Act. In 2017, a committee of the KBA’s Corporate, Banking and Business Law section considered amendments to the KRLLCA based on changes to the DLLCA that have occurred, and the resulting bill was introduced to the Continue Reading...

After a tortured history, the EEOC’s pay-data collection requirements are back! At least for now.

Consistent with some recent federal court rulings, all employers with 100 or more employees, as of now, must submit summarized pay data for all employees for 2017 and 2018 to the EEOC by September 30, 2019. The government is appealing the court rulings, and there still is a possibility that the pay-data reporting will not happen. But pending appeal and further details regarding the format and process for reporting employee pay data, employers should begin now to collect and review 2017 and 2018 pay data and to clean up any errors.

Regulatory Background

In 2014, President Obama directed the EEOC to develop a tool for collecting pay data from employers. In September 2016, the EEOC announced that pay-data collection would be incorporated into employer’s annual EEO-1 reports, beginning in December 2017. The initial proposal required EEOC to collect pay data for at least twice before September 30, 2019.

The EEOC regulations required employers to report, within each of the 10 EEO-1 job categories and 14 gender, race, and ethnicity categories, how many employees gross W-2 wages for the prior 12-month lookback period fall within each of 12 different pay bands. The Continue Reading...

The Supreme Court recently agreed to hear three cases that address whether Title VII’s protections against sex discrimination extend to discrimination on the basis of an employee’s sexual orientation and gender identity. Lower courts have struggled with the question of whether “discrimination on the basis of sex” could include protections for LGBTQ workers, resulting in a split among the federal courts of appeal. The Supreme Court will now have the opportunity to resolve the question once and for all. Two of the cases involve gay employees who both claim that they were fired because of their sexual orientation. In one case, Zarda v. Altitude Express, the Scond Circuit Court of Appeals (covering northeastern states) ruled that Title VII extended to sexual orientation discrimination. In the other case, Bostock v. Clayton County, the Eleventh Circuit Court of Appeals (covering southern states) ruled that Title VII did not protect employees from sexual orientation discrimination. The third case the Supreme Court will hear involves a transgender employee. In R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, a funeral home owner terminated an employee because of her transgender status. The business owner relied on the Religious Freedom Restoration Act to argue that his personal religious beliefs supported his termination decision and RFRA provides a defense for employers with sincerely held religious beliefs. The Sixth Circuit Court of Appeals (covering midwestern states, but not Kansas), ruled against the business owner and found that Title VII protects transgender employees and RFRA did Continue Reading...

According to the United States Department of Labor (DOL), nine out of 10 new fathers in the United States took some time off work for the birth or adoption of a child, but the amount of time that new dads take off work is generally very low. Seven out of 10 fathers took 10 days or less of parental leave. The DOL notes that fewer employers offer paid parental leave for men than for women, and fewer men report receiving paid parental leave than women. While 21% of women take parental leave, only 13% of men do the same.

Updating your parental leave policy to offer leave for new dads could be good for your business. A recent study by Ernst & Young found that 83% of millennials would be more likely to join a company that offered paternity leave. Additionally, the Council of Economic Advisers found that allowing more expansive parental leave improved an employer’s recruitment and retention of employees and also improved employee motivation and productivity. Many companies are taking note: Netflix is offering “unlimited” paternity leave for fathers and mothers during the child’s first year. Microsoft offers 12 weeks of paid leave for mothers and fathers, Ford Motor Company offers eight weeks paid leave, and Amazon gives all parents six weeks of paid leave.

Ensuring your parental leave policy complies with the Equal Pay Act, Title VII, and the Family Medical Continue Reading...

In October 2018, a three-judge panel at the Tenth Circuit clarified that an employee cannot sue its employer merely for failing to provide a reasonable accommodation under the Americans with Disabilities Act. Now the court is going to take another look at that ruling.

Laurie Exby-Stolley, a county health inspector in Colorado, sued her employer for disability discrimination on the theory that it failed to accommodate her disability. She had broken her dominant right arm at work and had undergone two corrective surgeries, but the injury still impacted her ability to perform tasks like lifting, moving, or opening objects or writing. These difficulties prevented Exby-Stolley from keeping up with her workload. Her doctor ultimately identified several permanent restrictions that prevented Exby-Stolley from performing the inspector duties.

Over the course of several months, Exby-Stolley and her employer discussed various accommodations. At first, Exby-Stolley moved into a part-time office job that was within her restrictions, but she did not enjoy it. She claimed at trial to have proposed many other potential accommodations that would allow her to work as an inspector or in other roles, but the County rejected all of her suggestions without offering any alternatives. According to the County, the only accommodation Exby-Stolley requested was that the County create a new position for her, cobbling together light-duty tasks from various different jobs. The ADA does not require employers to create new positions as a reasonable accommodation, but the County indicated it would continue to look for other existing job opportunities within Continue Reading...

Many employers have policies stating that employees must provide at least two weeks’ notice of resignation. The reason, of course, is to give the employer time to hire a replacement or otherwise staff the position. Even when not required by policy, two weeks’ notice often is taken for granted as a professional courtesy.

But more and more frequently, statistics say, employees are quitting their jobs without giving advance notice. Even worse, more workers are now “ghosting” their jobs—they just stop showing up without telling anyone.

What’s behind this trend? For starters, the job market has been white hot for a long time. And, the stigma once associated with resigning without two weeks’ notice is waning, particularly among younger workers.

So what can you do to keep employees from quitting without notice?

First, don’t overreact. Most employers practice employment at will, which means that either the employer or the employee can terminate the employment relationship at any time, without cause, and without notice. So, while you could enter into an agreement that requires the parties to provide each other with two weeks’ (or some other) advance notice of termination, most employers simply don’t want to impose such restrictions on themselves. Thus, you need to take the bad with the good.

But that doesn’t mean there aren’t ways—both carrots and sticks—to incentivize Continue Reading...

In 2016, with much fanfare, the EEOC adopted new summary pay-reporting requirements for all employers who file an EEO-1 report, which includes most employers with at least 100 employees and most federal government contractors with at least 50 employees and a government contract worth at least $50,000. In August 2017, before those new requirements went into effect, the Office of Management and Budget (OMB) issued an immediate stay that excused employers from having to report pay data. But on March 4, 2019, with the 2018 filing period opening in mid-March (pushed back due to the government shutdown earlier this year), a judge in the District of Columbia ruled that the OMB had no grounds to stay the pay collection rules, and the Court lifted the stay. The EEOC had purged from its website its prior guidance and instructions regarding pay collection, and it remains to be seen whether EEOC will require—or even be equipped to receive—payroll compensation data for the 2018 reporting cycle.

For government contractors subject to Section 503 of the Rehabilitation Act, which requires affirmative action to support the employment of individuals with disabilities, be on the lookout for increased OFCCP activity in this area. The agency has announced a new tool, a “Section 503 Focused Review,” to evaluate contractor’s efforts to employ individuals with disabilities. OFCCP has indicated that it will begin these Section 503 Focused Reviews at contractor headquarter locations, and it is expected to publish later this month a courtesy scheduling announcement Continue Reading...

Reserve your spot now! This comprehensive, full-day seminar covers the latest employment law developments you need to know about to keep your organization compliant, as well as human resources best practices and strategies to make it an employer of choice. Sessions will be presented by Foulston’s experienced employment lawyers and a nationally known keynote speaker. Select from a variety of breakout sessions to customize your own schedule.

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For more information call 316.291.9723. Be sure to register early! This seminar has sold out in previous years.

This program will be submitted for review of credit through the Society of Human Resource Management (SHRM), HR Certification Institute (HRCI), and Kansas and Missouri Continuing Legal Education Commissions.

Unfortunately, workplace shootings are on the rise as an emerging issue for employers. Even courts and judges have taken note in their judicial opinions that workplace violence is increasing. While there are, of course, different degrees of violence that employees may be exposed to at work, the incidence of a shooting is a particularly concerning type of violence.

According to the Bureau of Labor and Statistics, workplace shootings in recent years have increased by over 10%. As a result, employers should be aware of the risk and legal issues involved. Employers should also adopt a plan and policy to help employees prepare in the event a worst-case-scenario occurs.

Legal Issues for Employers

Under the Occupational Safety and Health Act of 1970, an employer has a general duty to render its workplace free from serious recognized hazards. The Act was originally motivated by a wish to cut down on the numbers of workplace deaths caused by industrial accidents and exposures, but the Act addresses many types of hazards.

According to guidelines published by the Occupational Safety and Health Administration (OSHA), employers are not strictly liable for violence in the workplace, including workplace shootings. There are no standards in OSHA Continue Reading...

As she promised she would do, newly elected Kansas Governor Laura Kelly restored protections from on-the-job discrimination for lesbian, gay, bisexual, and transgender state employees via Executive Order No. 19-02 on her first full day in office January 15, 2019. Former Governor Kathleen Sebelius had issued a similar executive order in 2007, which was later rescinded by former Governor Sam Brownback in 2015. The Order protects state employees from discrimination, harassment, and retaliation based on their sexual orientation, gender identity, and gender expression, among other protected classifications. The Order also expands the policy to require state government contractors to comply with the order in their employment practices.

Advocates of LGBT rights view the Order as a major victory for LGBT state employees and a stepping stone towards extending these protections to the entire private sector. Kansas’s first openly lesbian and gay legislators, Representatives Susan Ruiz and Brandon Woodward, have announced that they planned to introduce a bill that would expand Kansas’ anti-discrimination law to provide similar protections for employees of private businesses. The likelihood of such a bill passing is unclear, but a growing number of Kansas employers are voluntarily adding sexual orientation and gender identity as protected categories under their Equal Employment Opportunity & Harassment policies in anticipation of a potential future change in the law. Stay tuned for further updates on this potential litigation as well as other developments in the 2019 legislative season.

In the world of employee management, things unfortunately don’t always go as planned. From discipline meetings and performance evaluations to termination meetings, managers often have to share difficult news with employees. Finding an honest, respectful way to do so can be the difference between an employee on the path to improvement and one who throws a scene on his way out the door and drives straight to the EEOC to file a charge of discrimination. While there are numerous strategies for how to best navigate these difficult conversations, read on for a few suggestions on keeping these meetings on track.

Performance Evaluations

Performance evaluations are one of an employer’s most valuable tools for communicating with employees. They provide a built-in opportunity to give clear direction to employees about what is going well and what isn’t.

The most important rule when it comes to evaluations is to tell the truth, even when it’s difficult. Unfortunately, our workplaces are not in Lake Wobegone, and not all our employees are above average. If you have a low-performing employee, it is only fair to the employee and the employer to be honest with the employee about that performance. If an employee is performing acceptably in one area but not meeting expectations in another, the evaluation should explain to the employee in clear, simple language both the successes Continue Reading...

The start of the new year is a perfect time for Kansas employers to address employment updates from 2018 and prepare for possible changes coming in 2019. In this article, we’ve summarized a few changes and trends from 2018, as well as a few changes we might see in 2019.

EEOC & Title VII Litigation Trends. 2018 saw another increase in harassment and discrimination lawsuits being filed nationwide. In fact, EEOC litigation filings have doubled since 2016. One big area of movement is sexual harassment cases and charges, which rose significantly in 2018 after more than five years of decreasing numbers. We expect this trend will continue into 2019.

Another trend is the EEOC’s sustained efforts to push for inclusion of sexual orientation and gender identity as protected classes under Title VII, which prohibits discrimination, “because of sex.” The Supreme Court has long held that Title VII protects against discrimination for employees who don’t meet typical “gender norms,” such as a woman who is not feminine enough, but it has not yet addressed head-on the questions of sexual orientation or gender identity.

Over the last few years, the EEOC has taken a clear position that “sexual orientation is inherently a ‘sex-based consideration’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sexual discrimination under Title VII.” Currently, Continue Reading...

Employment attorneys always tell their colleagues that the best practice area is undoubtedly employment law. HR professionals probably feel much the same way. Every personnel situation is different, it’s never boring, and just when you think you’ve seen it all, you hear about another wild day in the workplace. 2018 was no different, and the following real-life cases prove it.

Georgia man gets a kick in the butt(dial)

James Stephens worked as the Fiscal Officer for the Georgia Subsequent Injury Trust Fund, a state agency. After work one day, Stephens’ boss, Michael Coan, called Stephens at home on his cell phone and they talked about work for a while. Stephens hung up, put his cell phone in his pocket, and went on a rant to his wife for 12 minutes about Coan.

Unfortunately for Stephens, he had inadvertently “pocket-dialed” Coan, who heard the whole rant. When Stephens went to work in the morning, Coan gave him a choice – resign or be fired. Stephens resigned, then he and his wife sued Coan under Georgia’s eavesdropping law and for invading the Stephens’ right to privacy. The Stephens claim that Coan had a legal obligation to hang up when he realized the call was inadvertent rather than listen in to the Stephens’ private conversation.

Coan filed a motion to dismiss the lawsuit, arguing that Coan was immune from the suit because he was acting in his official capacity as a state supervisor and had a right to listen to the conversation of a subordinate employee Continue Reading...

Foulston Siefkin’s HR Training Series presents workshops on the full range of issues that are important and relevant to employers. These workshops are designed to benefit business owners, executives, and HR professionals with responsibility in their organization for the issues arising from the employer-employee relationship. Each session will be presented by a Foulston Siefkin attorney at our offices in Kansas City, Topeka, and Wichita. All training sessions will be submitted for HRCI and SHRM credit.

Upcoming 2019 dates are listed below. For more information on the topics and to register, visit www.foulston.com/hrtraining.

HR Box Lunch Sessions:

WICHITA

What to Do When OSHA Shows Up JANUARY 24, 2019
FLSA Update FEBRUARY 28, 2019

TOPEKA

Box of Tricks or Pandora’s Box? How Outside Information Can Help or Hurt Employee Hiring and Retention JANUARY 30, 2019
Anatomy of a Complaint: From Charge to Lawsuit FEBRUARY 21, 2019
FLSA Update MARCH 6, 2019
Just the Facts: Difficult Conversations, Discipline, and Performance Management APRIL 16, 2019

KANSAS CITY

Box of Tricks or Pandora’s Box? How Outside Information Can Help or Hurt Employee Hiring and Retention JANUARY 17, 2019
Anatomy of a Complaint: From Charge to Lawsuit FEBRUARY 12, 2019
FLSA Update MARCH 5, 2019
Just the Facts: Difficult Conversations, Discipline, and Performance Management APRIL 11, 2019

Learn more at www.foulston.com/hrtraining.