New Nominations to EEOC and NLRB

President Trump is expected to nominate DC lawyer, Andrea Lucas, and re-nominate Labor Department official, Keith Sonderling, for Republican seats on the Equal Employment Opportunity Commission, and civil rights attorney, Jocelyn Samuels, for a Democratic seat.  This will return the Commission to full membership.

The White House will also name former NLRB member Lauren McFerran (D) and current member Marvin Kaplan (R) for new, five-year terms on the NLRB.

These nominations will retain Republican majorities on both independent bodies but do not appear intended to affect the high-level of partisan discord on them.

The EEOC’s Component 2 Has Been Closed

The Equal Employment Opportunity Commission’s initial attempt at a uniform collection of race and gender pay data from U.S. businesses has been closed by Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia. The Judge’s Order was issued today, February 10, 2020. Nearly 90% of employers have submitted data to the EEOC.

The Order ends what had a been a controversial and chaotic process – known as Component 2 of the EEO-1 – which required employers to submit aggregated compensation data to the EEOC. The stated goal was to address the “pay gap” for women and minorities, but debate continues as to the efficacy of the data and the ability of the agency to put the data to a meaningful use. Questions about the security of the data have not ceased.

The EEOC must file a final status report on February 14, 2020 and must retain all the submissions as required by federal law governing records retention. However, both EEOC and OMB are pursuing their appeals, challenging Judge Chutkan’s decisions requiring that the agency continue collecting data beyond its original period.

House Passes Sweeping Pro-Labor Bill

The Democratic majority in the House of Representatives passed the most far-reaching reform of U.S. labor laws since the 1930’s: The Protecting the Right to Organize Act (the “PRO Act”) (HR 2474). In what is clearly designed as a “template” for what a Democratic Administration would enact, the PRO Act includes provisions intended to assist unions in organizing, winning, and securing a labor agreement.

The main provisions of the PRO Act would:

  • Allow “card-check” certifications in which unions need only collect signatures from a majority of workers to form a unit and bypass the current secret-ballot process;
  • Curtail employers’ power to dissuade workers from forming unions;
  • Subject businesses to fines if they suppress worker organizing;
  • Allow “secondary” boycotts, in which workers disrupt their employer’s operations by interfering with suppliers, clients, and other related firms;
  • Outlaw “right-to-work” laws, which let union-represented workers withhold dues, in 27 states (Passed on 2/6/20);
  • Prohibiting lockouts; and
  • Allow workers to circumvent the NLRB and go to federal courts to adjudicate labor disputes.

This controversial Bill split the normally partisan House, with members of both parties voting for and against it. The Bill has little chance of passing the Senate and the President has already announced he would veto the Bill should it make it to his desk.

OFCCP Director Leen to be Nominated for OPM Inspector General

In an unanticipated move, President Donald J. Trump announced on Monday, February 3, 2020 his intent to nominate Craig E. Leen as Inspector General for the Office of Personnel Management (OPM). Leen has been Director of the US Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) since December of 2018. Leen came to OFCCP as a Senior Advisor in November of 2017 and became Acting Director of the agency in July of 2018, and was named as Director thereafter.

Prior to his work at OFCCP, Mr. Leen was the City Attorney of Coral Gables, Florida. This story is developing and FS will update as more information is available.

DOL Joint-Employer Rule: What Employers Need to Know

Wednesday, February 5, 2020
Noon – 1:00 p.m. EST

The Department of Labor has issued its Rule on Joint Employer status, setting out the government’s position on this controversial issue.

Join subject-matter experts Nita Beecher and Burt Fishman from FortneyScott for a free, hour-long webinar as they discuss what employers need to know about the new Rule, including:

  • The 4 criteria to determine Joint Employer status;
  • The role of “reserved rights”;
  • The decrease of liability on franchisors and “the gig economy”;
  • Additional Joint Employer rules on the horizon; and
  • The next steps from Congress and the States in this volatile debate.

Register for this complimentary webinar here.

 

Department of Labor Issues Final Joint Employment Rule

On Monday, January 13, 2020 the Department of Labor issued its joint employment rule which will be effective on March 16, 2020. The rule adopts a four-part test for assessing whether a company is the joint employer of another company’s employees. The test – which reflects the rule prior to the Obama Administration – considers whether the alleged joint employer hires or fires; supervises or controls work schedules; sets pay rates; and, maintains employment records. According to DOL, the fact that the alleged joint employer has the right or ability to exercise any of the four factors is relevant but not conclusive. Instead, whether the employer actually uses the authority is more relevant to determining joint employment status. The rule thus establishes stiff criteria before franchisers and their franchisees will be found jointly liable for compliance with federal wage and hour laws.

FortneyScott is reviewing the final rule which is scheduled to be published on January 16, 2020 and will provide a more detailed analysis soon. Contact your FortneyScott lawyer for more information.

How to Conduct an Effective Pay Equity Analysis

Webinar:  How to Conduct an Effective Pay Equity Analysis
Date: December 11, 2019 at 2:00 pm ET
Hosted by: Jobfindah
Presented by: Mickey Silberman

The focus on pay equity is here and continues to grow. In response, more and more employers are making the decision to conduct proactive pay equity analyses, hoping to find unexplained pay gaps and make substantial pay adjustments in the hopes of closing those gaps. But too many employers are rushing to conduct – either themselves or by outsourcing to a consultant – analyses that produce inaccurate and often misleading results. And then they make pay adjustments that do not fix the underlying issues that created and perpetuate those gaps. Attorney Silberman’s presentation will focus on the actions employers can take to fix this.

There is no cost to attend but seats are limited.  CLICK HERE to reserve your spot.

Please note that the webinar is approved for 1-hour of HRCI credit.

FortneyScott 2019 Lunch & Learn Series – 2019 Employment Year in Review

FortneyScott 2019 Lunch & Learn Series – 2019 Employment Year in Review
Wednesday, December 18, 2019
Time: Noon – 1:00 p.m. EST
Cost: Complimentary

Join David Fortney and Mickey Silberman of FortneyScott for a complimentary, hour-long webinar as they review the many significant developments for employers in 2019, and look ahead to 2020. Topics covered will include:
• Recent Supreme Court decisions impacting the workplace,
• New executive orders and legislation,
• An update on EEOC and DOL enforcement, including OFCCP and the Wage & Hour Division,
• And more!

CLICK HERE to register.
By participating in this webinar, you will earn 1.0 PDCs towards SHRM recertification.

Report from the ABA/ Labor and Employment Meeting: Dir. Leen’s Plans for OFCCP Focused Reviews

OFCCP Director Craig Leen presented at the American Bar Association’s Annual Meeting of the Labor and Employment Section in New Orleans on November 8. Leen’s comments centered on 503 and VEVRAA focused reviews. That same day, OFCCP issued a second 2019 Corporate Scheduling Announcement Lists that included 500 VEVRAA focused reviews. Here are the key takeaways from Leen’s presentation:

  • 503 and VEVRAA focused reviews will include an analysis of “systemic” discrimination in promotions, terminations, and compensation. Leen stated that the agency will conduct regression analyses in order to ferret out such discrimination. Because most establishments do not employ a sufficient number of Individuals with Disabilities (IWDs) or protected veterans to conduct a statistical analysis, in all likelihood, an analysis of compensation or promotion practices will likely be based on individual comparators and anecdotal evidence. Leen also reported that all focused reviews, VEVRAA and 503, will include an on-site. He estimated the on-sites would last three to five days.
  • OFCCP plans to post on its website a list of the contractors who successfully completed a 503 or VEVRAA focused review without any adverse findings, as well as best practices identified in each review.
  • Leen urged attendees to review the list of 503 best practices posted on the agency’s website and considering implementing some or all of them. The 503 focused reviews will include an assessment of whether the contractor implemented any of the best practices. Leen also noted that OFCCP will be taking a hard look at the impact of assessments, particularly those using artificial intelligence, on IWDs and the basis for denying a requested accommodation. Leen asserted that virtually all requests should be granted since most accommodations cost less than $500. Finally, Leen wants to see an Accessibility Coordinator in every workplace.
  • Compliance officers conducting 503 focused reviews will ask for, at least, the following documentation:
    • Termination records
    • Personnel files
    • Flexible workplace polices
    • Response rate for self-identification surveys
    • Contractor’s efforts to increase self- id response rates
    • Job descriptions

Although Leen specifically referenced this list in connection with Section 503 focused reviews, this list could also apply to a VEVRAA review.

  • A revised version of the 503 self-identification form is pending approval with the Office of Management and Budget (OMB). The intent of the revisions is to make the form more welcoming to IWDs in an effort to increase response rates.
  • Leen’s comments focused primarily of compliance with Section 503. However, he did stress a new focus with respect to VEVRAA compliance – discrimination against military spouses. The VEVRAA regulations include a prohibition against associational discrimination similar to the Section 503 and the ADA. 41 CFR 60-300.21(e)

Leen also stated that contractors may implement hiring preferences for IWDs and Veterans. According to Leen, such programs are not discriminatory. This position appears to be contrary to the EEOC’s guidance on voluntary preferences. Before implementing such a hiring preference, please consult with counsel.

  • Finally, Leen announced that next year, OFCCP will launch additional types of focused reviews on disability accommodations and religious accommodations. Eventually, Leen also plans to implement compensation and promotion focused reviews.

For more information on preparing for or responding to a focused review, please contact your FortneyScott attorney or send us an e-mail with your questions.

Trump Rescinds Obama Executive Order Requiring Successor Employers to Offer Employment to Service Workers

On October 31, 2019, President Trump issued a new Executive Order that rescinded President Obama’s Executive Order 13495 (EO)—Nondisplacement of Qualified Workers Under Service Contracts—and its implementing regulations. The now rescinded EO required successor contractors to offer positions to qualified service workers and to provide employee notifications and workplace notice postings.

Additional Information on the Rescinded EO.      The recession is effective immediately. The former EO required that any contract or subcontract entered into by the federal government or its contractors covered by the McNamara-O’Hara Service Contract Act (SCA) include a clause that qualified workers currently on a covered contract be given the right of first refuse for employment with a successor contractor. The EO prohibited a successor contractor performing the same or similar services at the same location from hiring any new employees until qualified workers performing the prior contract were provided an opportunity to accept a job with the successor. The EO also required the predecessor contractor to provide written notice to eligible employees by either conspicuous workplace posting or by individual notices to employees. Federal contractors will no longer be required to post or provide EO notices as well.

Trump’s rescission order specifically terminates immediately any existing investigations or compliance actions based on EO 13495, and directs the Secretary of Labor and other heads of government agencies to promptly move to rescind any orders, rules, regulations, guidelines, programs or policies implementing or enforcing Obama’s executive order.

Of the three Executive Orders issued by President Obama which federal contractors sought to reverse—(1) Fair Pay and Safe Workplaces, (2) Nondisplacement of Qualified Workers under the Service Contracts and (3) Paid Sick Leave—only the Paid Sick Leave Executive Order is still in effect.

Contact your FortneyScott attorney who advises your company or email us at info@fortneyscott.com for additional information about the rescinded EO, and for advice on the impact that these changes have on your federal contracting compliance obligations.