EEOC Issues New Resource Document Addressing Issues Related to Leave and Disability

On May 9, 2016, the Equal Employment Opportunity Commission
(EEOC) issued a new resource document, titled Employer-Provided
Leave and the Americans with Disabilities Act
that is intended
to educate employers and employees about the use of leave as a reasonable
accommodation under the American with Disabilities Act (ADA). 

According to EEOC, this resource document comes at a time
when disability charges filed with the agency reached a new high in fiscal year
2015?up 6% from the previous year.  EEOC
claims to have identified an uptick in employer policies that ?deny or
unlawfully restrict the use of leave as a reasonable accommodation,? which
often acts as ?systemic barriers to the employment of workers with

The EEOC has long acknowledged employer confusion around the
issue of leaves of absence under the ADA.  The Commission held a meeting on the subject
matter in 2009 where it discussed the need for additional guidance.  The resource document does not create any new
agency policies and consolidates existing EEOC policies and guidance into one
place.  It also provides numerous detailed examples illustrating when and
how leave must be granted for reasons related to an employee?s disability.  Although
the resource document was not voted on by the Commission and cannot be
considered official EEOC guidance, it is still worthy of employer?s attention.  The guidance is divided into the following
subject areas: 

  • Equal Access to Leave
    Under an Employer?s Leave Policy ? Employers must provide employees with
    disabilities access to leave on the same basis as all other
    similarly-situated employees.  If an employer does not place
    conditions on its employees? use of paid leave it cannot impose conditions
    on an employee who is seeking to use paid leave for reasons related to a
  • Granting Leave as a
    Reasonable Accommodation ? Employers must consider
    providing unpaid leave to an employee with a disability as a
    reasonable accommodation if the employee requires it, and so long as it
    does not create an undue hardship for the employer.
  • Leave and the
    Interactive Process Generally ? Employers must engage in an ?interactive
    process? with an employee who requests leave as a reasonable
    accommodation, which should focus on the specific reason(s) the employee
    needs leave, whether the leave will be a block of time or be intermittent,
    and when the need for leave will end.  Employers should treat an
    employee with a disabilities request for medical leave which is not
    otherwise covered by the employer?s existing policy or law (e.g., FMLA, state and local law,
    workers compensation) as a request for a reasonable accommodation and engage
    in the interaction process.
  • Maximum Leave Policies ?
    While employers are allowed to have policies that set a maximum amount of
    leave, they may have to grant additional leave as a reasonable
    accommodation to employees who require it because of a disability, unless
    the employer can show that doing so will cause an undue hardship.
  • Return to Work and
    Reasonable Accommodation ? An employer cannot require an employee with a
    disability to be ?100 percent? healed or recovered if the employee can
    perform his or her job with or without reasonable accommodation, unless
    the employer can show providing the needed accommodations would cause an
    undue hardship.
    Reassignment ? An employer must reassign
    employees who are unable to return to their existing job due to a disability to
    a vacant position for which the employee is qualified.  The employee
    should not have to compete with other applicants and should be reassigned to a
    vacant position absent a uniformly applies bonafide seniority system.
  • Undue Hardship ? In
    deciding whether to grant leave as a reasonable accommodation, employers
    should consider factors such as the amount and/or length of leave
    required, the frequency of the leave, the impact of the employee?s absence
    on coworkers and on whether specific job duties are being performed in an
    appropriate and timely manner, and the impact on the employer?s operations
    and its ability to serve customers/clients appropriately and in a timely
    manner.  A request for ?indefinite leave? when an  employee
    cannot say whether or when she will be able to return to work at all, will
    constitute an undue hardship and does not require a reasonable

 Please contact your FortneyScott attorney for any questions you may have relating to this topic.

New FAAP Guidelines Approved by OMB

May 9, 2016 the OFCCP announced the OMB approval of the new Functional
Affirmative Action Plan (FAAP) guidelines effective April 28, 2016.  The new
, now 2013-01 Revision 1, are effective until April 30, 2019, and primarily
consolidated and tightened up the former guidelines.  The most interesting change is the fact that
contractors no longer renew their FAAP agreements but rather “certify” them.  While the term “certify” is not defined, the
requirements for certification are similar to those used for renewing.

Other changes include:

  • A new “Roles and Responsibilities” section which
    provides that it is “the responsibility of the Division of Program Operations
    (DPO) to review and recommend approval of contractor requests to develop,
    implement and maintain AAPs.”
  • A renumbered Section 7 (d) which now places the burden
    on contractors to notify OFCCP after the OFCCP Director has approved the
    contractors’ FAAPs.
  • The elimination of a requirement that OFCCP notify
    contractors within 10 days that it received a FAAP request.
  • The OFCCP conference with the contractor is no
    longer mandatory but will be scheduled if deemed necessary by The FAAP Branch
    although contractors will still discuss the items on Attachment B and C for
    OFCCP’s consideration.

Contact your Fortney Scott attorney if you have any

Key Steps to Prepare for Expected Federal Blacklisting Rules

The proposed Federal Acquisition
Regulation (“FAR”) rule on Fair Pay and Safe Workplaces (“FPSW,” referred to as
the “Blacklisting rule”) seeks to prevent companies that violate Federal and
comparable state labor laws from doing business with the federal government.  (Fact
Sheet, Fair Pay and Safe Workplaces Executive Order.
)  It is expected that the rule and implementing
Department of Labor (“DOL”) guidance will be issued soon.  In the new regulations, the definition of
“violations” is very broad and failure to properly address “violations” could
result in the contractor/subcontractor being determined to be

To ensure compliance, contractors
need to collect new and different information for themselves and their
subcontractors.  Below are some key steps
to prepare for compliance with these new Blacklisting rules:

Identify your government contracts or

Determine whether you currently track and
maintain information relating to “violations” of 14 Federal and comparable State
labor laws (to be identified) covered by the FPSW.

Locate the company’s repositories of information
on these violations.  (Note: In many
companies, this information is not maintained on a single system, but instead
is retained in hard copy, in files, in multiple business units and locations, or
on multiple electronic systems.)   

Collect any information on “violations” within
the past three years, including information on the “violations,” including any
dispositions, settlements or other agreements relating to the “violations.” 

Review and work with counsel to appropriately
respond to any proposed or issued government contract past performance ratings issued
under the Contractor Performance Assessment Reporting System (“CPARS”).  FAR Part 42.15.  These may highlight labor law concerns that
could be considered reportable “violations.”

Work with counsel to analyze the information on
“violations” and past performance ratings to determine whether they pose the
risk that you would be determined to have “serious,” “repeated,” or “willful”
violations affecting your present responsibility to receive a government
contract or subcontract award, or option exercise.

Work with counsel to address such risks, such as
through the negotiation of an appropriate disposition to mitigate the risk of
being determined “non-responsible.”

A contractor’s failure to accurately identify and address
these labor law matters for itself and its subcontractors could result in the loss
of a procurement, the nonrenewal of a government contract or subcontract, false
claims, and even bid protests by your competitors.  Contact counsel to discuss your corporate compliance
and how you may avoid some of the more serious pitfalls.   

Click here for a brief overview provided by Jacqueline Scott and Susan Warshaw Ebner on the Blacklisting regulations.  

Blacklisting Regs Have Been Submitted to OMB

The FAR’s Fair Pay and Safe Workplaces regulations (known as “Blacklisting regs”) and the DOL’s Guidance for Executive Order 13673 have been submitted to OMB for final review.

New Guide to FMLA Issued by DOL

Department of Labor has issued a new Guide to the
Family and Medical Leave Act (“FMLA”), designed to provide employees with a
simpler, more “case-based” explanation of the many aspects of the law.  The emphasis is on plain language and
realistic situations, even including a number of “step-by-step” logic trees to
guide an employee through the entire FMLA process, along with clear definitions
of the essential terms.  The Guide is
likely to be a useful training tool for employers.

In addition, a new Directive is expected
requiring employers to display the FMLA poster in all places of business, even those that have no workers eligible
for FMLA leave.  A new poster is being
planned but there is no need to replace the existing


DOL Announces Final Rule for Reporting & Public Disclosure on All Fees Paid to Attys & Consultants

Exception for Legal Advice is Extremely
Narrowed To Force Disclosure

For Any Legal Assistance To Employer in
Maintaining Nonunion Status

The U.S. Department of Labor (“DOL”) will publish in the Federal
Register on March 24 a new rule that requires employers, and their attorneys
and consultants, to file with DOL, for public disclosure, all agreements and
all payments to attorneys and consultants for providing advice and assistance
for the purpose of maintaining nonunion status. The new Rule reverses 57 years of law that law firm and consultant
assistance to employers on how lawfully to maintain nonunion status was exempt
from such reporting under the “legal advice” exception of the Labor Management
Reporting & Disclosure Act of 1959.
The new Rule marks a huge victory
for organized labor.

Court challenges to this new Rule are expected.  Unless enjoined by a court, the new Rule
applies to all such agreements, advice, and payments for same, as of July 1,

What Agreements and Payments Must Be Reported.

Any attorney or consultant activity which as the object
or purpose of dissuading employees from unionizing, including:

  • Drafting of union campaign literature, speeches,
    audio-visual presentations, or website content;
  • Drafting counter-organizational talks or talking
    points for supervisors to meet with employees in groups or individually;
  • Meeting with supervisors or management to manage
    their counter-organizational strategy;
  • Training supervisors in counter-organizational
  • Coordinating or planning counter-organizational
  • Establishing counter-organizational policies to
    inhibit union activity; and
  • Planning personnel actions or disciplines to
    impact union activity.

 “Legal Advice” Exception Vastly Limited.

 The Final Rule reverses
the law
that employers enlisting attorneys or consultants for expert advice
on how to lawfully campaign against
unionization-given the technicalities of the NLRB restricting same-was subject to the “legal advice” exception
of the statute’s reporting and disclosure requirements.  
Now, all conduct is reportable as to verbal or
written agreements to provide those services AND the fees paid for those
.  All will be publically
reported-meaning, for instance, that unions will access that information to
report to voters what the employers are paying attorneys and consultants to
persuade voters to vote against unionization.  The exception for non-reportable legal advice is
now suddenly extremely limited too, for instance:

  • Explaining the law, but not for the purpose of
    persuading maintenance of nonunion status;
  • Reviewing employer-prepared
    counter-organizational literature for lawfulness and grammar, but not to revise
    for the purpose of editing to achieve or enhance persuading against
    unionization;Advising regarding legal decisions or course of
  • Representing the employer in legal proceeding or
    collective bargaining negotiations. Employers’ activities in buying “off-the-shelf”
    counter-organizational literature not customized for the employer, or attending
    trade association seminars for groups of employers on maintaining nonunion
    status are exempted from the Final Rule.


We will report more developments as this unfolds. For any
questions, please contact David Fortney or Steven Semler of FortneyScott.


WSJ Reports OFCCP?s Methods to Identify Pay Discrimination Are Minimally Successful

afternoon, the Wall Street Journal (WSJ) released a major investigative
report which found that the OFCCP’s aggressive tactics and demands for
expansive data collection were only minimally successful in identifying pay
discrimination.  The WSJ report is significant because its findings suggest a
fundamental disconnect between the OFCCP strategy for tackling pay
discrimination and its overall results.

Congress increased OFCCP’s budget by almost $20 million over the past five
years, over that same period OFCCP has collected less settlement money than it
collected in 2004 alone.  These meager numbers suggest “the agency has wasted
resources tackling a problem that hardly exists.”  Further, Congress has
responded to the Agency’s performance by slashing OFCCP’s budget by $1.1
million and by refusing to provide for additional employees to serve as
pay-analysis experts.

Director Pat Shiu told WSJ that the
low numbers were a direct result of her efforts to focus the agency on complex
cases, such as systemic pay discrimination involving multiple workers rather
than straightforward issues such as hiring. 
New reporting rules issued under Director Shiu require contractors to
submit a spreadsheet of all employees’ compensation.  WSJ reports that OFCCP critics and supporters
agree that the agency lacks the statistical expertise to analyze contractor
data so that audits that previously took six months now take two to three years. 
Further, the numerous requests for data suggest the agency takes on “each audit
assuming there is discrimination exists, if only they could find it.”

will continue to follow this story but if you have questions, please contact
your FortneyScott attorney.

Proposed Overtime Exemption Regulations are Imminent

The Department of Labor (DOL) sent its overtime regulations to the Office of Information and Regulatory Affairs (OIRA) for review on March 14.  OIRA is the branch of the Office of Management and Budget that is the final way station prior to issuance of the regulations.   This means that although publication of the final rules had been scheduled for July of this year, a publication date in April or May is now more likely.

The final regulations will revise the requirements for employees to be deemed exempt from the overtime requirements of the Fair Labor Standards Act (FLSA). Last year, DOL proposed to revise the salary threshold for the so-called ?white-collar exemptions? from $23,660/year to the 40th percentile of salaries in the United States?a figure estimated to be approximately $51,000/year. If the final regulations adopt that proposal, this would mean that employees who are currently classified as exempt, but who earn less than $51,000/year, would no longer be exempt, and employers would be required to pay overtime compensation to such employees whenever they worked more than 40 hours in a workweek.

The final regulations may also change the ?primary duty? test. Under the current regulations, an employee may be exempt even if he or she spends less than 50% of his or her time performing exempt duties, so long as the employee?s primary duty or duties are exempt duties. In the final regulations, however, DOL may adopt the test currently applied in California, where an employee must spend more than 50% of his or her time performing exempt duties in order to be deemed exempt.

 Stay tuned. We will keep you apprised of further developments.

Paid Leave NPRM Published in Federal Register

On February 25th, 2016, the U.S. Department of Labor’s Wage
and Hour Division published a notice of proposed rulemaking (“NPRM”) to
implement Executive Order 13706, Establishing Paid Sick Leave for Federal
Contractors.  The NPRM is requesting that
any comments regarding the NPRM be submitted by March 26, 2016 (30 days after
publication in the Federal Register). 

The proposed rule will apply to
employers entering into new contracts (meaning the solicitation was issued or
contract was awarded on or after January
1, 2017
) covered by the Service Contract Act or the Davis-Bacon Act,
concessions contracts and service contracts in connection with federal property
or lands.  As proposed, contract coverage
would be the same as Executive Order 13658, Establishing a Minimum Wage for
Contractors, with some exceptions.

The rule will require that
employees working on the performance of a government contract would be able to
accrue 1 hour of paid sick leave for
every 30 hours worked, up to 56 hours (7 days) in a year.
 The leave can be used as FMLA leave can be
used.  Existing PTO plans that meet these
standards will satisfy the requirement of the proposed rule.

If you have any questions with regard to this proposed
rulemaking, please feel free to contact a FortneyScott attorney.

EEOC to Collect Employee Compensation through EEO-1 Report

the White House on January 29,
2016, the Equal Employment Opportunity Commission (EEOC) announced a proposed revision to the EEO-1 report to provide pay
data collection.  The EEOC
also posted Q&As.
 The proposed rule will revise the
current EEO-1 report to add the reporting of compensation and hours worked data
by pay bands within the EEO-1 categories for employers who have 100 or more
employees beginning with the 2017 report.  All federal contractors that have between 50
and 99 employees will continue to file the currently approved report EEO-1

proposed rule was published in the Federal Register on Monday, February 1, 2016
for a 60 day comment period ending on April 1, 2016.  81 Fed. Reg. 5113 (Feb. 1, 2016.)  In addition, because the changes will amend
the EEO-1 report, the EEOC will hold a public hearing at a time and date to be

the proposed changes to the EEO-1 report will require the reporting of W-2
compensation data and hours worked to the information currently reported.  The pay data will be reported in 12 pay bands
which are the same pay intervals used by Bureau of Labor Statistics in its
Occupational Employment Statistics (OES) survey.  As to the use of pay bands, the EEOC is
following the model of its EEO-4 report for state and local governments that
collects pay data from those employers in pay bands.  Unlike OFCCP’s proposed Equal Pay Report, the
EEOC will have employers use the previous 12 months of W-2 compensation data when
the report is due on or before September 30th

EEOC’s proposed changes are similar to the OFCCP’s proposed Equal Pay Report
that included the collection of total hours worked by employees by EEO-1 pay
band.  In explaining the current
proposal, the EEOC stated that it is not asking employers to collect hours on salaried
or exempt employees but would like comments on whether 40 hours should be used
for all salaried workers.

you are interested in having FortneyScott prepare comments for filing on your
behalf, please contact your FortneyScott attorney.