White House Issues Memorandum Freezing New and Pending Regulations

January 20, 2017, White House Chief of Staff Reince Priebus issued a memorandum instructing the
heads of executive departments and agencies to take immediate steps to ensure
that President Trump’s appointees and designees have the opportunity to review
any new or pending regulations.

Key steps outlined in the memorandum:

  • Send no regulation to the Office of the Federal
    Register (“OFR”) until a department or agency head appointed or designated by
    President Trump-or an authorized delegate-reviews and approves the regulation
  • Immediately withdraw, for review and approval,
    regulations that have been sent to the OFR but are not published in the Federal Register
  • As permitted by applicable law, postpone by 60
    days the effective date of regulations that have been published in the OFR but
    have not taken effect, and consider proposing for notice-and-comment a rule to
    delay the effective date for regulations beyond the 60-day period
  • In cases where a rule’s effective date has been
    delayed in order to review questions of fact, law, or policy, consider
    proposing further notice-and-comment rulemaking and, for such regulations,
    notify the OMB Director and “take further appropriate action in consultation
    with the OMB Director”

The effect of this memorandum on the new overtime
regulations and Union Persuader rule–both currently enjoined by federal courts–as well as the new EEO-1 reporting requirements remains to be seen. FortneyScott’s
attorneys will continue to monitor this development and keep you updated.

OFCCP Files Two New Systemic Pay Discrimination Lawsuits

In a last blast by the Obama Administration during its final hours, the U.S. Department of Labor?s Office of Federal Contract Compliance Programs (OFCCP) filed lawsuits on January 17, 2017 against banking giant JPMorgan Chase alleging systemic discrimination against women in its pay practices and against the tech company Oracle alleging systemic discrimination in hiring and pay practices in violation of Executive Order 11246.

More specifically, in OFCCP v. JPMorgan Chase & Co. (case number unavailable), the agency alleged that the bank discriminated against at least 93 women by paying them less than their male counterparts in the 4 positions within the company?s Investment Bank, Technology & Market Strategies unit and failed to evaluate its compensation systems to determine whether there were gender-based disparities.

In OFCCP v. Oracle America, Inc. (OFCCP No. R00192699), OFCCP claimed that the company engaged in systemic compensation discrimination against women, African-American, and Asian employees in three lines of business at the company?s headquarters in Redwood Shores, California and that it engaged in a pattern or practice of hiring discrimination in favor of Asian Indians applicants.  Additionally, the agency alleged that Oracle refused to produce required records during its compliance evaluation, including compensation and hiring data, adverse impact analyses, and materials showing that the company performed an in-depth review of its compensation practices.

In both cases, OFCCP is seeking ?complete relief? for the affected workers, including lost pay, interest, and lost benefits, as well as orders permanently enjoining JPMorgan and Oracle from discriminating in their hiring and compensation practices.  If the companies fail to provide relief as ordered in the lawsuit, OFCCP requests that their government contracts be canceled and that they be debarred from entering into future federal contracts.

Adding these latest cases to the high profile suits recently filed against Palantir and Google, it is clear that OFCCP is trying in the final months of the Obama administration to develop a track record of systemic compensation enforcement.  Stay tuned as more announcements could be made during the final hours.

We will continue to follow these cases as they develop.  If you have any questions or need additional information, please contact your FortneyScott attorney.

New Pay Equity Requirements for New York State Contractors

there is an expectation that the new Trump administration will nix the revised
EEO-1 Report pay collection requirements, employers should be aware of what
appears to be a new trend that states are stepping into the void and imposing
new pay data reporting obligations.

Most recently, New York Governor Andrew Cuomo
signed an Executive Order on January 9, 2017 that requires New York state
contractors to provide to the state data on the job titles and salaries of all
employees performing work on state contracts after June 1, 2017.

Order No. 162, entitled “Ensuring Pay Equity by State Contractors,” also
requires that the contractor report the job titles and salaries for its entire
workforce if the contractor cannot identify which employees are working
directly on the state contract.  These
reports must be made quarterly if the prime contract is in excess of $25,000,
and monthly for prime construction contracts in excess of $100,000.

Cuomo, who is rumored to be considering a presidential run in 2020, also signed
Executive Order No. 161, entitled “Ensuring Pay Equity by State Employers,”
which forbids state entities from asking about a job applicant’s compensation
history.  However, once a conditional
offer of employment has been extended-with compensation-a state entity may
request and verify compensation.  If a state
entity is already in possession of an applicant’s prior compensation, it may
not be relied upon in determining the applicant’s salary, unless required by
law or collective bargaining agreement.  While
an applicant can volunteer their compensation information, the Executive Order
provides that an applicant’s refusal to provide their compensation information
may not be considered in making a hiring decision.

will continue to update our website with additional developments.  If you have any questions or need additional
information, please contact your FortneyScott attorney or Nita Beecher at

EEOC Issues Last Minute Omnibus Guidance Tracking Harassment Task Force?s Recommendations

a few work days left under the current administration, the Equal Employment Opportunity
Commission (“EEOC” or the “Commission”) has released new 75-page draft guidance on workplace harassment.  While the
EEOC’s timing will certainly raise eyebrows, employers should take notice.  The Commission describes its new guidance as
“a companion piece” to the Report
issued by EEOC Harassment Task Force Co-Chairs’ Victoria Lipnic and Chai
Feldblum this past June.  Since Commissioner
Lipnic is the only Republican on the EEOC and widely rumored to be its next Chair,
the proposed harassment guidance could very well survive the Presidential

provides that the proposed Enforcement Guidance on Unlawful Harassment explains the
legal standards for unlawful harassment an employer liability, and provides “a
single legal analysis for harassment that applies the same legal principles
under all the statutes the Commission enforces.”  The proposed guidance consolidates and
replaces four separately issued harassment guidance: EEOC’s Compliance Manual
Policy Guidance on Issues of Sexual Harassment (1990) and on Employer Liability
for Sexual Favoritism (1990); and EEOC’s Enforcement Guidance on Harris v. Forklift Sys. Inc. (1994) and
on Vicarious Employer Liability for Unlawful Harassment by Supervisors (1990).

EEOC followed this same procedure when updating its Enforcement Guidance on Retaliation and
Related Issues
  and National Origin

last year.  Employers have 30 days to
review the draft guidance and submit comments.
Once the agency reviews the public comments and makes changes to the
draft guidance, the Commission must vote to approve the final guidance.

We anticipate that
the EEOC will move forward with the new harassment guidance.  Given the guidance’s length and timing we
encourage employers take the time to review the proposal and strongly consider
providing comments to the EEOC.  We will
be preparing a summary of the proposed guidance.  If you are interested in receiving our
summary and participating in FortneyScott’s comments, please contact your
FortneyScott attorney or Leslie Silverman.

Joint FBI/DHS Report on Russian Hacking Offers Tips on Cybersecurity

Use of the Internet and electronic devices are essential tools for conducting business.  Increased cyber security threats, actual intrusions, hacks and attacks on private, commercial and government individuals and entities, threaten you and your business.

On December 29th, the Federal Bureau of Investigation (FBI) and the Department of Homeland Security (DHS) issued a joint report providing evidence of foreign attempts to obtain and use information obtained through improper cyber means during the US election season.  See DHS-FBI Joint Analysis Report, “Grizzly Steppe – Russian Malicious Cyber Activity “, JAR-16-20296 (December 29, 2016).

Companies, including their personnel, customers and supply chain, need
to be proactive in ensuring the security of personal and professional
communications and systems.  The DHS-FBI Report provides a number of
useful tips for protecting against unauthorized access and use of your
data and systems. Some of these include:

  • Network administrators
    should review and monitor the IP addresses, file hashes and Yara
    signatures that were identified as being used in the intrusions reported
    in the DHS-FBI report.
  • Ensure passwords to systems are secure.
    Don’t give out information about your company systems or security to
    unauthorized individuals or entities.  For example, if you receive an
    electronic message to change your password, confirm that it is from a
    legitimate source.
  • Commit to cybersecurity best practices, including:
  1. Conducting a risk analysis of your organization’s cyber security, and
    address identified weaknesses or vulnerabilities; the National Institute
    of Standards and Testing (NIST) Cybersecurity Framework provides a good
    starting point for companies seeking to establish more secure systems.
  2. Establishing secure firewalls.
  3. Backing up critical information.
  4. Regularly scanning your network and systems for known vulnerabilities;
    updating your scanning as new vulnerabilities are identified.
  5. Using only approved programs on your networks and systems.
  6. Establishing a cyber security team, policies and reporting chain for
    expeditious reporting and response to actual or suspected cyber
  7. Training your staff on your cyber security policies and procedures.

If you are a government contractor, you are already subject to federal rules on cyber security and reporting.  If you have questions about what you are required to do under your government contracts and cyber security resources that may be available to you, contact Susan Warshaw Ebner or your FortneyScott counsel.  Avoid traps for the unwary and take steps now to secure your systems and supply chain.

EEOC Issues Final Rule on Affirmative Action re Individuals with Disabilities

The Equal Employment Opportunity Commission (EEOC)
is issuing its final rule to amend the regulations that require federal agencies
to engage in affirmative action for individuals with disabilities.  The Final Rule clarifies the obligations that
the Rehabilitation Act of 1973 imposes on federal agencies, as employers, that
are over and above the obligation not to discriminate on the basis of disability.

Please check back for updates or contact your FortneyScott attorney if you have any questions.


Register for FortneyScott’s Lunch & Learn: Six Key Changes under the Trump Administration

This has been a year like no other, and the election of Donald
J. Trump as the President of the United States represents a significant
departure from the status quo.  What will the 2016 election mean for the
future of workplace laws, regulations and for the federal agencies charged
with enforcing them?  At this early stage of the Trump Administration
transition, some of the key changes already are becoming clear.

To assist employers in understanding the latest
developments and significant changes in labor and employment and policy matters
anticipated from the Trump Administration, FortneyScott is offering a complimentary Lunch & Learn webinar on
what the federal election results could mean for your industry and your
business, specifically, the six key changes for labor and employment:

  • Make job creation the topmost priority
  • Repeal “job-killing Executive orders and regulations
  • Change the leadership and direction of the Department of Labor, Equal Employment Opportunity Commission and National Labor Relations Board
  • Institute national paid maternity leave
  • Strengthen immigration policies
  • Repeal and replace Affordable Care Act

Join us on Tuesday, December 13 from 12:00 – 1:00 p.m. EST for a complimentary webinar.  CLICK HERE to register. 

Join us for the DOL?s New Overtime Regulations: Countdown to Compliance Webinar

Please join us for a free 90-minute webinar ? on Tuesday, October 4th from 12:00 p.m. to 1:30 p.m. (Eastern) ? entitled, ?The DOL’s New Overtime Regulations: Countdown to Compliance.? 

In this webinar, David Fortney, Esq. of FortneyScott will moderate a discussion among experts Jacqueline Scott, Esq. (FortneyScott), Judith Kramer, Esq. (FortneyScott), Rob Speakman, Ph.D. (Welch Consulting), and Valentin Estevez, Ph.D. (Welch Consulting), to provide employers with valuable tips and strategies for coming into compliance with the Department of Labor?s new overtime regulations by the December 1, 2016 deadline.

Attendees must register in advance.  PLEASE CLICK HERE to do so.

We look forward to you joining our briefing on the new overtime regulations on October 4th.

FortneyScott names Elizabeth B. Bradley, Esq. as Shareholder

Please join us in congratulating Elizabeth B. Bradley on becoming a Shareholder of Fortney & Scott, LLC which is one of the leading management employment law firms in the U.S.  Ms. Bradley joined the firm in 2013, bringing more than 10 years of experience representing employers and federal contractors in litigation and mediation matters before state and federal agencies and courts, as well as counseling and training private, public, and non-profit employers in all aspects of employment law.
Specifically, Ms. Bradley has extensive knowledge and experience in counseling federal contractors in matters relating to the U.S. Department of Labor?s Office of Federal Contract Compliance Programs (OFCCP). She has represented U.S. corporations in successfully defending against OFCCP?s review of the contractor?s utilization rates and compensation practices. She has also represented major companies during OFCCP compliance reviews and defended contractors undergoing investigation by the OFCCP for alleged discrimination and related record-keeping practices.
Additionally, Ms. Bradley has experience in advising employers on wage and hour compliance under federal and state laws; litigating discrimination and retaliation claims under Title VII, ADA, ADEA, and comparable state and local statutes; counseling on ADA and FMLA compliance; conducting internal investigations involving discrimination complaints; performing wage and hour compliance reviews; drafting and negotiating employment agreements including non-compete and non-solicitation provisions; and advising employers on their obligations under the Patent Protection and Affordable Care Act (ACA).
In announcing that Ms. Bradley has been named a Shareholder, Jacqueline Scott, co-founder of Fortney & Scott, LLC, stated: 
?Liz has been an invaluable addition to FortneyScott. She has deepened the firm?s substantive expertise and experience, especially most recently in the representation and counsel of federal contractors in matters of OFCCP compliance, as well as in Wage and Hour matters.  Liz?s sharp intellect and can-do attitude have served our clients well, and we are very excited to welcome Liz as a Shareholder of the firm.?
David Fortney further noted that ?Liz Bradley brings the experience and expertise that our clients expect and rely on.  We are delighted to have Liz become a Shareholder of the firm ? she provides greater depth to our practice and expands FortneyScott?s ability to meet our clients? needs.?
Ms. Bradley previously served as a law clerk to the Honorable Ronald L. Buckwalter on the United States District Court for the Eastern District of Pennsylvania after graduating from the University of Pittsburgh School of Law. Ms. Bradley is admitted to practice in Washington, D.C. and Pennsylvania, and before various federal courts.
Fortney & Scott, LLC
FortneyScott is a Washington, DC law firm counseling and advising clients on the full spectrum of workplace-related matters. The firm has been recognized as one of the leading management employment law firms in the highly prestigious ?Best Law Firms? for 2011-2016 by U.S. News & World Report and Best Lawyers. The firm offers clients the unparalleled experience and expertise of its attorneys, who formerly held senior positions at the U.S. Department of Labor, the Equal Employment Opportunity Commission, and other government agencies, in corporate legal staffs, in major law firms, and who served as a judge on an international tribunal.
Additional information is available at fortneyscott.com or by contacting David Fortney at dfortney@fortneyscott.com or 202.689.1200. 

New Overtime Regulations Have Been Issued

The new Overtime Regulations are set to publish in the Federal Register on May 23, 2016, but FortneyScott has an advance copy of the new Overtime Regulations and policy for your review. 

On May 25, FortneyScott will present a complimentary Lunch & Learn on what you need to know about these regulations.  Please register HERE.