On May 11, 2016, nearly two hundred public employees and members of the business community gathered at Lorain County Community College to help the Ohio EPA explore ways to repurpose material dredged from Lake Erie’s harbors. The “Dredged Material: Make It Your Business – Digging up Ideas Workshop” included brainstorming sessions where participants debated new ideas for using dredged material and overcoming the financial, technical, and regulatory obstacles to such use.

Each year, 1.5 million cubic yards of material is dredged from the federal navigation channels along Ohio’s Lake Erie shoreline to allow the movement of commodities and vessels. Historically, dredged material, which is typically comprised of loose sand, clay, silt and soil particles, was treated as a waste and either disposed of in a specialized landfill or dumped in the open waters of Lake Erie. Due to the passage of Ohio Senate Bill 1 in 2015, however, open-lake disposal will be prohibited after July 1, 2020. This gives the Ohio EPA less than five years to find alternative environmentally-friendly ways to use, recycle, or otherwise dispose of the material.

At the May 11, 2016 workshop, Ohio EPA Director Craig Butler’s opening remarks made clear that protecting Lake Erie from contamination and over-sedimentation is a priority, but that finding alternate uses for dredged sediment poses a unique challenge. Governments and businesses already use the material for beach/near shore nourishment, habitat creation or restoration, landscaping, road construction, landfill cover, and brownfield and other land reclamation. Other industrial uses include making useful products such as topsoil, concrete and concrete-based goods, brick, block and other construction materials. The challenge is to find additional productive and economically beneficial ways to use the material.

The Ohio EPA is developing a regulatory program which is expected to include a business-friendly permitting process and incentives to encourage the use of dredged material. Once issued, the proposed rules will be subject to formal public comments and a hearing before being finalized. Interested parties are encouraged to participate in the rulemaking process.

As part of the State’s push to develop innovative uses for dredged sediment, grant money is being offered by the Ohio Lake Erie Commission for projects that develop business models for utilizing dredged material, removing economic barriers to such use, increasing public awareness and acceptance of the value and/or potential uses of dredged material, or developing processes for intercepting and capturing sediment to minimize the need for dredging. Grant applications must be submitted by June 10, 2016. If you would like further information regarding this funding opportunity or the use of dredged materials as a potential low cost substitute for fill material in construction projects or other applications, please contact Leslie G. Wolfe at (216) 928-2927 or lwolfe@walterhav.com.

You can read more about the Ohio EPA’s Lake Erie Dredged Material Program here.

On April 26, 2016, the United States Department of Labor (DOL) issued a guide to assist employers required to comply with the Family and Medical Leave Act (FMLA). This guide is similar to the guide issued several years ago for employees. The guide is 76 pages long and is quite comprehensive. A copy of the guide is available here.

The guide is a good tool for employers and serves as notice as to how the DOL views certain issues arising under the FMLA. The guide includes seven chapters:

1. Covered employers under the FMLA and their general notice obligations;
2. When an employee needs FMLA leave;
3. Qualifying reasons for leave;
4. The certification process;
5. Military family leave;
6. During an employee’s FMLA leave; and
7. FMLA prohibitions.

The guide also includes a section titled “Did you know?,” which addresses some of the more technical provisions of the FMLA.

While the guide may assist employers in understanding some of the complexities of the FMLA, it does not have the force of law. Rather, the guide is a reflection of the DOL’s position on particular issues. Accordingly, it is important to seek assistance from legal counsel to distinguish between the DOL’s position and the law.

The DOL also published a new FMLA poster which is available here. The new poster contains most of the same information published on the previous poster, although it is organized differently. Employers should post the new poster in a conspicuous place where employees and applicants for employment can see it.

On May 2, 2016, the U.S. Equal Employment Opportunity Commission issued a new “Fact Sheet” on bathroom access rights for transgender employees. The agency warned employers that discrimination based on an employee’s transgender status is sex discrimination under federal law. The Fact Sheet reflects the EEOC’s position that employers are prohibited from preventing an employee from using a bathroom corresponding to the employee’s gender identity. The Fact Sheet further reflects the EEOC’s position that an employer may not condition the right to use a restroom corresponding to the employee’s gender identity on the employee undergoing, or providing proof of, surgery or any other medical procedure to demonstrate the employee’s gender. The EEOC also takes the position that an employer cannot restrict a transgender employee to a single-user bathroom unless the employer makes a single-user restroom available to all employees who might choose to use it.

While the EEOC’s Fact Sheet is not the law, it does provide employers with the EEOC’s position on this issue. As such, employers should be mindful when making decisions regarding use of restrooms and locker rooms.

You can read the EEOC Fact Sheet here.

On March 28, 2016, the U.S. Citizenship and Immigration Services (USCIS) published a 30-day notice in the Federal Register seeking public comment on proposed changes to Form I-9, Employment Eligibility Verification. The public may comment on the proposed changes for 30 days, until April 27, 2016. After the 30-day comment period ends, USCIS will consider public comments and make changes to Form I-9 which it deems appropriate. The Office of Management and Budget (OMB) will then review and approve the information collection. The revised I-9 Form will be posted on the USCIS website along with instructions.

USCIS further directed employers to continue using the current version of Form I-9 until USCIS posts the new form on its website.

According to USCIS, many of the proposed changes to Form I-9 were designed to reduce technical errors and help customers complete the form on their computers after they have downloaded it from the USCIS website. USCIS made revisions to the original proposed form after receiving comments during the 60-day notice period.

USCIS reports that key changes to the form include:

• Validations on certain fields to ensure information is entered correctly
• Additional spaces to enter multiple preparers and translators
• Drop-down lists and calendars
• Embedded instructions for completing each field
• Buttons that will allow users to access the instructions electronically, print the form, and clear the form to start over
• A dedicated area to enter additional information that employers are currently required to notate in the margins of the form
• A quick-response matrix barcode, or QR code, which generates once the form is printed and can be used to streamline audit processes
• A requirement that employees provide only other last names used in Section 1, rather than all other names used
• Removal of the requirement that aliens authorized to work must provide both their Form I-94 number and foreign passport information in Section 1
• The separation of instructions from the form, in keeping with USCIS practice
• The addition of a Supplement in cases where more than one preparer or translator is used to complete Section 1

What employers should do now: Continue to use the I-9 Form on the USCIS website and watch for updates on the release of the revised I-9 Form in the coming months.

On March 14, 2016, the U.S. Department of Labor’s Wage and Hour Division sent its proposed final rule revising the overtime regulations to the Office of Management and Budget (OMB). This review typically takes between 30 and 90 days. Once the final rule clears OMB review, it will be published in the Federal Register. Based on this new timetable, it’s possible that the Final Rule could be effective as early as June 2016.

Earlier this month, the Internal Revenue Service (IRS) issued an alert to payroll and human resources professionals to be aware of a phishing email scheme that purports to be from company executives and requests personal information on employees. Several of our clients have been victimized by this scam.

Payroll and Human Resource Professionals should ensure the request for information is valid before sending any information via electronic mail. You can review the IRS alert here.

For the first time since 1998, the EEOC released proposed guidance regarding workplace retaliation that would supersede the EEOC Compliance Manual, Volume II, Section 8: Retaliation. The guidance is intended to educate the public on how the EEOC approaches charges, determinations, and litigation considerations involving the most frequently alleged EEOC violation – retaliation. However, the guidance, which was published for public opinion on January 21, 2016, does not simply apply and explain current law. Rather, it essentially redefines retaliation and leaves open the door for increased retaliation lawsuits and unfavorable decisions for employers.

Workplace retaliation has historically revolved around adverse actions taken by an employer (or employment agency, or labor organization) against a covered individual because of the individual’s engagement in a protected activity. The proposed guidance continues to require protected activity and adverse action as two elements of a retaliation claim; however, the proposal expands the definition of protected activity, redefines adverse action, and virtually rewrites the standard for a causal connection between the two.

If the guidance is finalized unchanged, according to the EEOC, protected activity would encompass any activity that the employee subjectively believes is unlawful, as long as the employee’s belief is not “patently specious.” The definition also expands oppositional activity to include an individual who accompanies a coworker to make a complaint. The EEOC would also include participation activity, regardless of its truth or validity, as protected. For example, an employee would not have to have a reasonable, valid allegation, nor tell the truth during an EEOC investigation, to still retain protection and thus remain secure from employer disciplinary actions. The guidance even goes on to acknowledge its contradiction with many courts (including that of the Sixth Circuit, which covers Ohio), which do not include internal EEO investigations and harassment complaints as covered protected activity unless an EEOC charge is filed.

Reinforcing its historic opinion, the EEOC expands “adverse action” to include “any action that might well deter a reasonable person from engaging in protected activity.” This goes beyond work-related activities to encompass actions that have “no tangible effect on employment, or even an action that takes place exclusively outside of work.” Therefore, a retaliation claim could be made for employer action that, in fact, results in no harm whatsoever. The EEOC also adopts the “zone of interest” concept to allow for third parties to bring claims (i.e. an adverse action against an individual for a family member’s protected activity).

Perhaps most troubling for employers, this EEOC guidance goes beyond mere suggestion that direct evidence of a causal nexus between a protected activity and adverse action is no longer necessary. The guidance states that “a ‘convincing mosaic’ of circumstantial evidence that would support the inference of retaliatory animus” would be sufficient to demonstrate causal connection. For example, retaliatory conduct could be found years after protected complaint participation based on suspicious timing of the employer’s action, and even comparative evidence regarding treatment of other employees could be used to support an inference of retaliatory conduct. Also, retaliation would not have to be the sole cause of an adverse action, rendering a mixed motive defense useless.

The EEOC guidance also includes what it considers “best practices” for reduction of retaliatory conduct in the workplace.

If the EEOC guidance is finalized, employers should be attentive to its content and mindful in dealings with individuals who are involved in any “protected activity,” keeping in mind that “protected activity” will be construed broadly.

It has been reported that on February 17, 2016, U.S. Solicitor of Labor, Patricia Smith, announced at an American Bar Association conference that the white-collar exemption regulations will be published in July 2016, with an effective date 60 days after publication. When the U.S. Department of Labor last revised the exemptions, which was in 2004, the regulations became effective 120 days after publication.

For more information on the proposed rule, see “Changes to Exemptions from Overtime Rules Expected in July 2016.”

On February 1, 2016, as employers wrapped up employee W-2s for the year, the U.S. Equal Employment Opportunity Commission (EEOC) published proposed additions to EEO-1 data reporting for employers. In a joint effort with the Department of Labor and Office of Federal Contract Compliance Program (OFCCP), the EEOC seeks to gather employee wage data to assist with prevention of pay discrimination and enforcement of anti-discrimination laws. According to the EEOC, the proposal is based on its work with the President’s National Equal Pay Task Force and recommendations from various studies, including a National Academy of Sciences report, an EEOC Pilot Study, and work groups.

Under federal law, the EEOC and OFCCP require data collection by many private employers and federal contractors, submitted annually through the EEO-1. Currently, certain employers are required to report employee data based on sex, seven race and ethnicity categories, and ten job categories. Among other things, the proposal seeks to require private employers, with 100 or more employees, to collect and report data on employee W-2 earnings and hours worked. Under the proposed rule, Employers would need to identify the number of employees by ethnicity, race and gender whose earnings fall within the twelve specific pay bands. This information would then be used for aggregated data for statistical analysis by the EEOC and OFCCP. The EEOC and OFCCP are hopeful that the data will aide in employer self-monitoring and voluntary compliance in addressing pay inequities.

The OFCCP previously sought to collect wage data from federal contractors under a 2014 proposal. Public comments on the 2014 proposal flagged a lack of agency coordination, the burden of compensation data reporting, as well as privacy and confidentiality concerns.

The EEOC and OFCCP claim that the proposed reporting would pose minimal burden on employers because the requested data is “pay data that employers maintain in the normal course of business,” referencing employees’ W-2s and hours worked. Employers, however, will likely view the proposed requirements in a different light. The EEOC claims that this new data collection should be relatively easy for employers to retrieve due to the availability of software, but that’s yet to be seen. And, employers typically do not keep track of hours worked for non-exempt employees. As such, it is not clear how such information would be reported. The proposal will also likely be viewed as excessively intrusive into private employers’ business information. Finally, employers may also have concerns about confidentiality.

Should the proposal result in a final enforceable rule, it would not go into effect until the 2017 EEO-1 reporting cycle. The proposal is available here for review and public comments until April 1, 2016.