EEO-1 Deadline For 2019 & 2020 Now Extended to August 23, 2021

Employers now have some extra time to submit equal employment opportunity (EEO-1) workforce data from 2019 and 2020, the U.S. Equal Employment Opportunity Commission (EEOC) announced on June 28, 2021. These reports were previously due by July 19, 2021. Employers now have until Aug. 23, 2021, to complete their submissions.

The EEOC’s collection of this data, the portal for which opened on April 26, 2021, had been delayed numerous other times due to the coronavirus pandemic. Under Title VII of the Civil Rights Act, the EEO-1 Report is usually due by March 31 every year.

EEO-1 Reporting Background

The EEO-1 Report is an annual survey that requires certain employers to submit data about their workforces by race or ethnicity, gender and job category. The EEOC uses this data to enforce federal anti-discrimination laws.

Employers Subject to EEO-1

Reporting In general, a private-sector employer is subject to EEO-1 reporting if it:

  • Has 100 or more employees;
  • Has 15-99 employees and is part of a group of employers with 100 or more employees; or
  • Is a federal contractor with 50 or more employees and a contract of $50,000 or more.

Employers that are subject to EEO-1 reporting now have until Aug. 23, 2021, to submit data from 2019 and 2020.

Employer Action Items

Employers subject to EEO-1 reporting requirements should ensure that they complete their EEO-1 submissions by Aug. 23, 2021. These employers should also review the EEOC’s home page and website dedicated to EEO data collections for additional information.

Important Dates

  • July 19, 2021: Prior deadline for submission of 2019 and 2020 workforce data.
  • Aug. 23, 2021: New deadline for employers subject to EEO-1 reporting to submit 2019 and 2020 workforce data.
  • March 31, 2022: Deadline for submission of EEO-1 data from 2021.

Disciplining or Terminating Employees With Open Workers’ Compensation Claims

Can an employer discipline or terminate an employee who has an open workers’ compensation claim? This is a common question that many employers ask. The answer depends on which state the company is located in, why the employee is being disciplined or terminated and the nature of the workers’ compensation claim. Let’s look at an example.

Say an employee is insubordinate to their supervisor, and this issue has occurred more than once. While the employee has been reprimanded, they continue to disobey company policies or procedures. However, the employee has an open workers’ compensation claim from an occupational injury. As a result, the employer may question whether they can continue to discipline or terminate the employee due to poor behavior.

Review this article to learn more about when an employer can discipline or terminate employees with open workers’ compensation claims.

What Is an Open Workers’ Compensation Claim?

In general, an open workers’ compensation claim can mean that an occupational injury or illness is currently being treated, benefits are still being paid, rehabilitation is in process or the employee has not yet reached maximum medical improvement.

Workers’ compensation claims can stay open for several years, depending on how severe the injury or illness was and what the treatment for that ailment entails.  

If an employee’s claim is still open, this generally means that the claim is still active in the workers’ compensation system.

When Can an Employer Discipline or Terminate?

While employers cannot retaliate against their employees for filing workers’ compensation claims, this does not mean that they are unable to discipline or terminate an employee who has an open claim. There are various reasons as to why an employer could discipline or terminate an employee. For example, an employer could potentially be permitted to discipline or terminate an employee with an open workers’ compensation claim in these circumstances:

  • After obtaining permanent restrictions, the employee can no longer complete the job tasks that were initially assigned to them.
  • Company-wide layoffs are necessary.
  • Leading up to their injury or illness, the employee had poor work performance, and this issue was properly documented.

However, it’s important to remember that employers must have detailed documentation and be consistent in their practices with all employees. In addition, employers must ensure that they are not violating any other laws when disciplining or terminating an employee. After all, just because there is no issue with workers’ compensation laws, does not mean there won’t be any compliance concerns related to disability regulations or other fair employment standards.

Documentation Is Key

In most states, it’s illegal to discipline or terminate an employee because the employee filed a workers’ compensation claim. This is considered retaliation, and employees are protected from this practice under workers’ compensation laws. By terminating an employee for filing a workers’ compensation claim, an employer could open themselves up to serious litigation issues. Employers can end up paying significant compensatory and punitive damages for retaliation claims.

But what happens when an employee’s behavior or attitude creates work performance issues? For example, an employee may fail to complete assigned work within the required time, be insubordinate to a supervisor or show up late to work—thus showcasing a poor work performance. As soon as these issues occur, the employer should start documenting them. This provides a foundation for the employer, helping them justify disciplinary action or termination—even if the employee has an open workers’ compensation claim.

However, suppose an employer only starts documenting issues after an employee makes a workers’ compensation claim, even though the behavior had already been occurring before the claim happened. In that case, it could seem as though the behavior became a problem only because of the workers’ compensation claim.

If an employee’s performance issues began after an injury or illness and during the open workers’ compensation claim, it should be noted in the employee’s personnel file with detailed notes. From there, the employer should complete a full investigation into what occurred. This way, the employer will have sufficient documentation in the event that the employee files a lawsuit against them for being disciplined or terminated during the course of an open claim.

Employers should also be consistent in their disciplinary and termination practices. If there’s no consistency, discrimination or wrongful termination claims could arise against the employer. It’s important that—when an employer is considering whether to discipline or terminate an employee—they follow these measures:

  • Document the employee’s misconduct.
  • Thoroughly investigate the misconduct.
  • Obtain witness statements (if applicable).
  • Record any disciplinary actions that the employee received, or provide reasons as to why no discipline was required.
  • Record the reason for the employee’s termination (including any documentation regarding a probationary period).

Documenting the situation with very detailed notes could help an employer defend themselves against any wrongful termination or discrimination claims that may occur.

Is it Retaliation?

Employer actions that could potentially be deemed unlawful retaliation when made against an employee with an open workers’ compensation claim include:

  • Changing the employee’s job tasks, even though the employee is still able to perform them
  • Changing the employee’s work schedule
  • Demoting the employee
  • Reducing the employee’s hours

If an employer is deemed to have wrongfully retaliated against an employee, they can be liable for various penalties, such as fines or—in severe cases—jail time.

What Happens to the Workers’ Compensation Claim if the Employee Is Terminated?

If an employee who has an open workers’ compensation claim is terminated, the claim will continue to stay open. The employer will still be responsible for the coverage of the employee’s occupational injury or illness—unless the insurance carrier, a state agency or a court determines otherwise.

It is usually in an employer’s best interest to keep an employee who has an open claim working. Doing so allows the employer to directly communicate with the employee, closely monitor the employee’s medical treatment progress and have more input as to what the employee is doing in recovery.

Employees who have been terminated, on the other hand, tend to be very hard to reach—which makes the employer’s task of following up with them that much more complicated. What’s more, an employer does not have the same kind of direct access to a terminated employee as they would have to an employee who continues working. This access can be helpful for monitoring the employee’s healing process and holding the employee accountable for following proper medical restrictions. If an employee is terminated and then hired by another company, it will become extremely difficult to make sure the employee follows their restrictions.

In any case, employers need to weigh the pros and cons of termination versus keeping an employee working. For instance, not terminating an insubordinate employee simply because they have an open workers’ compensation claim may end up being costlier than any potential retaliation claim that the employer could otherwise face for the termination itself. Each situation is different, but employers should always keep in mind that consistency is key when determining what kind of circumstances or employee actions may warrant termination.

Contact us today with any questions about workers’ compensation insurance.

Report on PEO in Florida is Submitted

The report this report issued by The Office of Program Policy Analysis and Government Accountability (“OPPAGA”) in Florida, is clearly one commenced with negative overtones and questionable timing. As Senate Bill 820 looms in the background, this appears to be the “made for order” white paper to justify it. It is unfortunate that the issue of uninsured employers has been misconstrued with some sort of “gap in coverage” in workers’ compensation if a Professional Employer Organization is utilized. This is just not the case. A gap in coverage exists when a business does not buy insurance for its employees and that should be the focus of fixing the root issue of the uninsured employee.

The scope of the report is:

  1. “What is the relationship between PEO’s and insurance carriers, and how might workers’ compensation coverage differ for businesses that use PEO’s?”
  2. “How can the relationship between a PEO and its client companies lead to a workers’ compensation coverage gap?”
  3. “What has been the history of PEO-related workers’ compensation insurance carrier insolvencies in Florida?”
  4. “Can PEO’s offering workers’ compensation coverage have an effect on the workers’ compensation insurance market, including premiums for other businesses?”
  5. How have other states addressed PEO regulation and PEO-related workers’ compensation insurance coverage gaps?”
  6. What options could the legislature consider to address PEO regulation and PEO-related workers’ compensation insurance coverage gaps?”

According to the Director of the Florida Association of Professional Employer Organizations Robert Skrob:

“Since the creation of the workers’ compensation system, employers fraudulently paying employees cash under the table has been a problem. That why the law  holds general contractors responsible for what happens on their job sites.  Shifting that responsibility away from general contractors would lead to more workers’ compensation fraud by letting general contractors who don’t adequately oversee their worksites avoid responsibility.

Contractors who cheat the system by not providing workers’ compensation coverage for all people who work for them put those workers in danger. The Florida Legislature should eliminate the financial motivation and incentives built into the system that encourage workers compensation fraud in construction by increasing the number of jobsite investigations to keep up with the growth in the construction industry, and by holding the cheaters responsible.

There are a number of proposed bills which would implement some of the recommendations within this report. Together with NAPEO we will fight the proposals contained within this report.”

We could not agree more and look forward to helping any way possible to address the issue of the occupational uninsured. Not buying insurance for your employees is a crime.

From an insurance perspective, the real issue – taking care of the claimant, is addressed in most states through the administration of an “Office of Uninsured Employers”. If your employer did not buy workers’ compensation, you go to the State, the claimant’s benefits are funded, the employer is investigated/penalized and the fund is replenished. In Florida, if you are hurt and your employer has not purchased insurance, your primary recourse is to contact a personal injury attorney. “It’s free”, until their contingengies are triggered on what is already rightfully due tohe claimant. This is how it works in Florida in regard to uninsured employees of uninsured employers regardless of a PEO being involved or not.

We will be reviewing the OPPAGA report in detail and provide additional insight on it before the weekend.