OFCCP Issues Technical Assistance Guide for Educational Institutions

Today, OFCCP issued its long-anticipated Educational Institutions Technical Assistance Guide (“TAG”), designed to assist educational institutions with federal contracts “understand their obligations under the laws and regulations OFCCP enforces and to help them prepare for compliance evaluations.”

Acknowledging that educational institutions may face “unique challenges” in their compliance efforts, the TAG addresses a number of key issues, including:

  • Guidance for determining whether the institution should develop a single AAP (g., for the campus or the university) or multiple AAPs;
  • Clarification on when student employees should be included in, or excluded from, AAPs;
  • Methods for developing job groups for instructional and non-instructional employees;
  • Best practices for developing action-oriented programs;
  • Discussion of how OFCCP will review promotion data; and
  • Overview of OFCCP’s compensation analysis methodology.

While the TAG is useful, educational institutions must identify any content that goes beyond the regulatory requirements of Executive Order 11246, Section 503, and VEVRAA. OFCCP, as a matter of law, only can enforce the regulatory requirements, and the Agency cannot enforce any expanded obligations included in the TAG.

FortneyScott will provide a more in-depth analysis of the TAG for clients prior to the October 23, 2019 Town Hall OFCCP is holding for educational institutions.

For more information on the TAG or how educational institutions should respond to OFCCP compliance review, please contact your FortneyScott attorney or send us an e-mail with your question.

EEO-1 Component 2 Deadline Extended

Although the EEOC was scheduled to end the Component 2 data collection on Monday, September 30, 2019, the EEOC plans to keep the portal open in accordance with the district court’s order until it reaches approximately 72% of the employers who normally file EEO-1 Reports. On Friday, September 27, 2019 in its Status Report to the district court discussing post-September 30th activities the EEOC announced its plan to continue to accept Component 2 data for 2017 and 2018 in accordance with the judge’s order.  EEOC said that EEO-1 eligible employers should continue to submit and certify their Component 2 EEO-1 reports for 2017 and 2018 as soon as possible.

For more information on Component 2 pay data collection, see the EEOC’s portal for Component 2.

DOL Issues Long-Anticipated Update to Overtime Rule

This morning, the U.S. Department of Labor’s Wage & Hour Division (WHD) announced a final rule updating the overtime eligibility requirements for workers under the federal Fair Labor Standards Act (FLSA).

Most notably, the final rule bumps up the minimum salary threshold required for workers to be exempt under the FLSA’s “white-collar” exemptions—that is, the executive, administrative, and professional exemptions. The new threshold of $35,568 is a significant increase from the previous threshold of $23,660, an amount which has not been revised since 2004. However, the new threshold falls far short of the $47,476 level proposed in a scuttled Obama-era rule in 2016.

Very importantly, the final rule makes no changes to the current “duties test” for exemptions—a hotly debated subject during the rulemaking process. Nor does the final rule call for an automatic update of the salary threshold, another controversial feature in the blocked Obama rule.

Other significant components of the final rule include:

  • Updating the salary threshold for the “highly compensated employee” exemption from $100,000 to $107,432 per year;
  • Allowing employers to use nondiscretionary bonuses and incentive payments (including commissions) that are paid at least annually to satisfy up to 10 percent of the standard salary level; and
  • Revising the special salary levels for workers in U.S. territories and in the motion picture industry.

According to a WHD press release, the final rule will make an additional 1.3 million American workers eligible for overtime pay.

Next Steps

While the rule is scheduled to go into effect on January 1, 2020, it is widely expected that it will be challenged immediately in federal courts by Democrats and worker advocate groups, with the intent of enjoining and invalidating the rule in favor of one more akin to the Obama rule.

The final rule’s release coincides with a Senate committee confirmation vote today on Trump nominee for Labor Secretary, Eugene Scalia. Scalia is expected to clear the committee vote and ultimately win confirmation by the Republican-controlled Senate.

FortneyScott will keep you updated on the status and impact of this final rule. If you have any questions, please contact your FortneyScott attorney, or e-mail FortneyScott.

OFCCP Issues FAQs for “Campus-Like Settings”

The Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) provided guidance on how an “establishment” should be determined in a campus-like setting, such as a higher education institution or an office park.

Understanding what constitutes an “establishment” is the cornerstone of federal contractors’ EEO and affirmative action compliance obligations. Federal contractors, generally, are required to develop Affirmative Action Plans (“AAPs”) for each “establishment.” AAPs are proactive tools that monitor most personnel activity (e.g., hiring, promotions, compensation and terminations) to determine areas of potential discrimination and areas in which additional diversity efforts need to be focused. OFCCP conducts compliance evaluations and related enforcement activity based on individual “establishments” by reviewing the AAP and related supporting materials. When multiple buildings in a campus-like setting are combined in a single AAP, contractors risk including a larger number of dissimilar employees into a single AAP. This could reduce the effectiveness of the proactive analyses as well as create additional challenges during OFCCP audits.

Key Takeaways: Federal contractors with campus-like settings, including clustered office buildings and higher education campuses, should evaluate whether their AAP structures comport with the factors included in OFCCP’s guidance to minimize the risk of a challenge to the AAP structure and coverage by OFCCP. In particular, higher education federal contractors need to carefully evaluate whether to use a campus-wide approach for developing an AAP, or whether grouping buildings by departments or other related organizational units or functions is appropriate for AAPs. The development of AAPs is a critical component in a federal contractor’s compliance strategy, and federal contractors should secure legal advice on how their AAPs should be structured based on their specific facts and with appropriate consideration of OFCCP’s new guidance.

Additional Information for Higher Education Federal Contractors: OFCCP, in particular, focuses on assessing compliance by higher education federal contractors which began during the Obama Administration. Many reviews of the higher education contractors still are pending. Why? Because OFCCP and the higher education community cannot agree on a fundamental compliance point – the definition of an “establishment.”

“Establishment” is not defined in OFCCP’s regulations. Case law, OFCCP’s compliance manual, trial testimony of a Regional Director, and the agency’s long-standing practice, however, define an “establishment” as a brick and mortar building. Curiously, OFCCP has repeatedly, but not consistently, taken a different position when it comes to higher education contractors. According to OFCCP practice, typically an “establishment” in the context of a college or university is the entire campus.

Last Spring, OFCCP Director Craig Leen promised to issue technical assistance guidance (TAG) for colleges and universities covering a range of issues, including the scope of a higher education AAP. It appears, OFCCP has abandoned – or at least delayed – its promise of a comprehensive TAG in favor of FAQs for Campus-Like Settings generally. These FAQs apply more broadly than just higher education. The FAQs apply to any contractor with multiple buildings in a campus-type setting.

While the sub-regulatory guidance provided in the FAQs is generally phrased in the permissive – “OFCCP may consider” or “Contractors may determine,” the guidance sets forth several factors contractors “should” consider when determining whether multiple buildings “should” be in a single AAP (FAQ 4). Such factors include:

  • What is the function of the building, and how do the employees in the building interact with employees in other buildings?
  • Are employees across different buildings part of the same organizational unit, such as department, division, section, branch, group, job family, or project team?
  • Are the hiring, compensation, and other personnel decisions handled separately at each building or are those functions consolidated across the entire contractor or across multiple buildings on one campus?
  • Does each building handle its own recruitment or is that function consolidated across multiple buildings?
  • Do the buildings recruit from the same labor market or recruiting area?
  • To what extent are other human resources and Equal Employment Opportunity compliance functions operationally distinct for each building or group of buildings?
  • To what extent do certain employees perform work functions across various buildings?

OFCCP does not cite to any authority, legal or otherwise, to support these factors or the definition of an “establishment” as a group of buildings located in the same area. These FAQs are sub-regulatory guidance and, as such, it does not bind the contractor community or OFCCP. The structure and scope of an AAP is a critically important compliance decision. Contractors should certainly consider the various options available for structuring their AAPs – grouping multiple buildings in a single AAP per these FAQs; an AAP per building based on OFCCP’s long standing practice; or a Functional AAP per the regulations (41 CFR 60-2.1(d)(4)).  Specifically, in our experience involving higher education institutions, there have been limited instances in which OFCCP has accepted AAPs based on sub-campus groupings by departments or functions. OFCCP, however, generally expects that a single, campus-wide AAP will be prepared for colleges and universities, notwithstanding the lack of specific legal authority compelling such an AAP structure.

Please contact your FortneyScott attorney or email us at info@fortneyscott.com for more information about how the new OFCCP guidance applies to your AAP design and related matters.


EEOC to Begin Contacting Employers Regarding EEO-1 Component 2 Submissions

With only three weeks remaining for employers to submit their EEO-1 Component 2 compensation data, the EEOC will begin reaching out to employers to remind them of their filing obligations. To date, only 13.4% of employers have provided the required information through the EEOC’s online portal, meaning approximately 37,000 employers are yet to submit their data. As a result, the contractor responsible for the agency’s data collection will begin calling any employers which have not yet submitted data, registered with the online portal, or requested assistance from the agency to ensure that these businesses are aware of the approaching September 30th deadline.

As the Component 2 filing date approaches, we will continue to update you.

Employers Face Issues Submitting EEO-1 Component 2 Reports

As you are likely aware, employers with 100 or more employees are required to submit EEO-1 Component 2 W-2 pay and hours worked data for 2017 and 2018 by September 30, 2019.  Employers must submit their Component 2 Reports through the Component 2 EEO-1 Online Filing System which is separate from the EEO-1 Component 1 portal.  The Component 2 Portal run by the EEOC’s contractor, NORC, provides two methods to report 2017 and 2018 pay and hours worked data either by: (1) manually entering data into an online form, or (2) uploading data via a CSV data file consistent with the EEOC’s specifications.  However, with the submission deadline quickly approaching, some employers are reporting issues with the Online Filing System.

First, we have received reports that uploading data through the Online Filing System is taking significantly longer than expected.  We anticipate that this issue will only be exacerbated by increased traffic in the days leading up to the September 30th deadline.  Accordingly, employers should plan ahead when submitting their data, and make sure that they allow sufficient time for the data upload to be completed.

Second, employers are not receiving confirmation that their data was submitted.  As a result, we recommend that employers take a screenshot of the submission page with the date and time.  Furthermore, as employers will also be unable to view or download draft or final Component 2 Reports once they are uploaded to the Online Filing System, employers should retain an exact copy of the uploaded data for their records.

As the Component 2 filing date approaches, we will continue to update you.

New DOL Opinion Letter on Compensability of Sleep Time for Truck Drivers

The U.S. Department of Labor issued an opinion letter, FLSA2019-10, that provides new guidance on the compensability of time that a driver spends in a truck’s sleeper berth while otherwise relieved from duty. In FLSA2019-10, DOL’s Wage and Hour Division (“WHD”) follows a straightforward reading of the plain language of the applicable regulation, concluding that the time during which drivers are relieved of all duties and permitted to sleep in a sleeper berth is presumptively non-working time that is not compensable.

However, where a driver who retires to a sleeping berth is unable to use the time effectively for his or her own purposes, time spent in the sleeper berth will be compensable. For example, a driver who is required to remain on-call or do paperwork in the sleeping berth may be unable to effectively sleep or engage in personal activities; in such cases, the time is compensable for hours worked.

This new opinion letter effectively repeals WHD’s prior opinion letters on this issue. Previously, WHD concluded that while sleeping time may be excluded from hours worked where “adequate facilities” were furnished, only up to 8 hours of sleeping time could be excluded on a trip that is 24 hours or longer, and no sleeping time may be excluded for trips under 24 hours.

Please contact David Fortney (dfortney@fortneyscott.com), or the FortneyScott attorney with whom you work, for additional information.

Labor Secretary Resigns

Secretary of Labor, Alex Acosta resigned from his post amid pressure from the public due to the plea deal he negotiated with Jeffery Epstein while U.S. Attorney in the Southern District of Florida. In a press conference in the White House Rose Garden, President Trump announced that the Deputy Secretary of Labor, Patrick Pizzella will assume the role of Acting Secretary of Labor starting July 19, 2019. Pizzella was confirmed by the Senate in a 50-48 vote.

FortneyScott will continue to monitor any leadership changes within the DOL.

Supreme Court Limits Public Access to Private-Sector Records

The U.S. Supreme Court, in a 6-3 decision, reined in the ability of the media and other members of the public to access commercial and financial records provided to the government by private-sector businesses.  Under the Freedom of Information Act’s (“FOIA’s”) Exemption 4, the government is not required to disclose “commercial or financial information obtained from a person and privileged or confidential.”  Although seemingly straightforward, this language has been the source of much dispute and confusion, as many courts have held that information should only be deemed confidential under Exemption 4 if it can be shown that its disclosure would cause “substantial competitive harm.”  However, on June 24, the Supreme Court provided clarity on this issue through its opinion in Food Marketing Institute v. Argus Leader Media, d/b/a Argus Leader.  The majority opinion, written by Justice Gorsuch, overruled the “substantial competitive harm” standard, and held that information provided to the government is “confidential” under FOIA Exemption 4 – and, as a result, not subject to public disclosure – if the information is “both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy.”  As a result of this ruling, private companies which are required to provide sensitive data to the government, such as the pending EEO-1 Component 2 pay data submissions, can do so with more confidence that such information will not be made public.

Case History

In 2011, Argus Leader Media (“Argus”), a South Dakota newspaper, submitted a FOIA request to the U.S. Department of Agriculture (“USDA”) seeking information provided to the agency by retail stores regarding benefit payouts for food stamps under the Supplemental Nutrition Assistance Program (“SNAP”).  The USDA refused to disclose the requested information citing Exemption 4, and Argus filed suit.  The district court found in favor of Argus, holding that the USDA had not shown a likelihood of substantial competitive harm resulting from the disclosure of the requested information, and on appeal the Eight Circuit affirmed the district court’s decision.

Following the lower court decisions, the Food Marketing Institute (“FMI”) intervened in the case and petitioned the Supreme Court for review arguing that the “substantial competitive harm” standard applied by the Eighth Circuit improperly narrows Exemption 4 which requires only that information be confidential.  FMI asserted that the term confidential should be afforded its ordinary meaning – “something that is private and not publicly disclosed.”  In addition, the Department of Justice appeared in support of FMI arguing that data should be deemed confidential and not subject to disclosure under FOIA where it was reasonably understood to have been communicated to the government in confidence.

The Supreme Court’s Decision

Justice Gorsuch, writing for the majority, agreed with FMI and the Department of Justice, and noted that the language of Exemption 4 provided no basis for the “substantial competitive harm” standard which had been adopted by the lower courts.  In reaching this decision, Justice Gorsuch noted that the “ordinary, contemporary, common meaning” of the word “confidential” at the time FOIA was enacted simply required that in order for information to be deemed confidential it must be “customarily kept private” and, in the event information is disclosed to another party, assurances are provided that it will remain secret.  The majority found that here, the information at issue easily satisfied these conditions and fell under Exemption 4.

In addressing the “substantial competitive harm” standard, the Court held that in developing this interpretation the lower courts had ignored the plain language of the statute, and chose instead to apply their own interpretation of FOIA’s purpose.  By inferring that Exemption 4 only applied to information which would cause substantial competitive harm, lower courts had improperly narrowed the plain meaning of the statute as it was enacted.

In dissent, Justice Breyer pointed to the purpose of FOIA – to “permit access to official information long shielded unnecessarily from public view.”  With this purpose in mind, Justice Breyer noted that FOIA’s exemptions must be narrowly construed.  He further cautioned that as businesses tend to treat “as secret all information which need not be disclosed” the majority’s ruling would provide a great deal of leeway to deprive the public of information.

Looking Ahead

Moving forward, this ruling should have far reaching implications, as it provides the government with far more discretion to block the release of information that contains private-sector commercial or financial information.  Importantly, this decision should have an immediate impact as companies which are preparing to submit their EEO-1 Component 2 pay data, can now do so with confidence that their non-public information will be exempt from FOIA requests.

Supreme Court Adds Burden to Title VII Defense

On June 3, 2019, the U.S. Supreme Court decided that if employers wish to challenge a claim brought by a plaintiff alleging a violation of Title VII that was not part of the EEOC charge, they must act promptly to assert the defense that the claim is invalid. If the employer fails to challenge the claim at the outset for failing to exhaust administrative remedies by not observing the charge-filing requirement, an accused employer will waive this defense.

The High Court resolved a split among the Circuit Courts by ruling that the charge-filing requirement is not “jurisdictional,” but merely “procedural.” Failure to follow a “jurisdictional” requirement would permit an accused party to successfully challenge a claim at any time.

To read this case, Fort Bend County v. Davis, click here.