FortneyScott

FAR Council Implements EO 14398: Federal Contractor Compliance Obligations Begin

Tue, 28 Apr 2026 14:19:45 GMT

Federal contractors are facing immediate changes to implement stepped-up efforts to restrict DEI discrimination, including new mandatory contract clauses, expanded audits, and significant potential legal exposure. These far-reaching changes will impact prime contractors and all tiers of subcontractors. Any employer that is a federal contractor should immediately prepare for these new compliance obligations.

DOL Proposed Joint Employer Rule

Thu, 23 Apr 2026 13:02:51 GMT

DOL Proposes New Joint Employer Standard

In an effort to create a uniform, nationwide standard for determining joint employer status, the U.S. Department of Labor’s Wage and Hour Division will publish a Notice of Proposed Rulemaking (NPRM) in the Federal Register on April 23, 2026. The proposed Joint Employer Rule aims to restore a standard similar to the more business-friendly Trump 1.0 rule. Specifically, the proposed rule clarifies when multiple organizations would be considered joint employers under the Fair Labor Standards Act, the Family and Medical Leave Act, and the Migrant and Seasonal Agricultural Worker Protection Act. Comments are due within 60 days of the published date, or June 22, 2026.

The proposed rule seeks to end nearly a decade of vacillating rules, as both the Trump and Biden administrations had tried promulgating a final rule previously. Those prior attempts created a series of conflicting executive and judicial rulings. As stated by acting Labor Secretary Keith Sonderling, this NPRM is intended to establish a “clear standard on joint employment.”

Four-Factor Test

The proposed rule modifies the Trump 1.0 standard, which focused heavily on requiring actual control by one company over another to establish joint employment. A prior judicial challenge to that approach was successful, requiring some modification to any new standard introduced thereafter. The proposed rule, therefore, responds by offering a four-factor test that is still heavily weighed on aspects of control.

The four factors are whether a company:

has the power to hire or fire a worker;
supervises or controls a worker’s schedule or conditions of employment to a substantial degree;
determines the rate and method of payment; and
maintains a worker’s employment records.

No single factor is dispositive, and the analysis will focus on the totality of the circumstances.

Single National Standard Still a Goal

The DOL acknowledged that some circuit courts continue to consider more factors and said the four listed factors were “not exhaustive.” Additionally, other federal agencies and several states have their own joint employer standards, some of which are directed at specific industries. For instance, the NLRB finalized its joint employer rule in late February 2026, with a similarly aligned standard that has some variances from DOL’s proposed standard.

A final rule is anticipated soon after the comment period closes. Once issued, the rule may be subject to judicial challenges from interested parties that previously opposed similar regulatory approaches.

Contact your FortneyScott attorney for additional information on how to submit comments and/or prepare for its impact on your workforce.

FAR Council Moves Rapidly to Implement Executive Order 14398, Imposing Imminent Compliance Obligations on Federal Contractors

Tue, 21 Apr 2026 14:32:19 GMT

The Federal Acquisition Regulatory Council (FAR Council), which sets government-wide procurement policy and regulation for all federal agencies, has moved quickly to implement Executive Order (EO) 14398 , Addressing DEI Discrimination by Federal Contractors. Specifically, the FAR Council:

Issued government-wide implementation guidance and class deviation language for all federal agencies to incorporate a mandatory contract clause, as prescribed in EO 14398, as soon as April 24, 2026, in new solicitations, and by July 24, 2026, for bilateral modifications of existing contracts. The class deviation authorizes agency-wide implementation of new requirements in federal contracts before the Federal Acquisition Regulations (FAR) are amended formally.
Requested emergency approval, under the Paperwork Reduction Act (PRA), to allow immediate enforcement of EO 14398’s information collection and reporting requirements.

Join FortneyScott for a complimentary briefing on Monday, April 27, at noon ET . Please register here .

Contact your FortneyScott attorney for additional information on how to prepare for this new contract clause.

DEI Compliance Updates for Employers

Mon, 13 Apr 2026 13:35:50 GMT

Employers need to continue to be vigilant in their compliance efforts for DEI and related programs. Here are two quick updates:

To assist employers, our most recent DC Insider-Employer Update podcast – EO 14398 and the Procurement Power Play: Compliance, Contracts, and Consequences – provides a great overview of the newest Executive Order and federal contractor compliance.
Additionally, late Friday, April 10 ^th , DOJ announced the first False Claims Act settlement based on DEI claims against IBM for $17 million.

Please contact your FortneyScott attorney for more information, and visit our website ( www.fortneyscott.com ) for our recent special webinar .

Part III: Trump Administration Increases DEI Pressure

Mon, 13 Apr 2026 13:09:27 GMT

The Trump Administration continues to push for the elimination of “illegal DEI.” Join FortneyScott attorneys on Thursday, April 9, 2026 at noon EDT to learn the latest developments by multiple federal agencies targeting DEI programs and policies.

The webinar will address the key federal agencies’ expansive efforts, including:

EEOC , focusing on the agency’s latest challenges to DEI, including expansive investigations of corporate DEI programs, subpoena enforcement litigation and limiting the rights of trans workers;
DOJ , including the False Claims Act investigations, and challenges to the constitutionality of EO 14173 in 4th and 7th Circuits;
FTC & FCC , highlighting the Mansfield Program, and warning law firms about antitrust compliance, and how DEI can impact regulatory approvals; and,
Certification of Compliance , including GSA’s proposed Certification for grantees, and the implications for federal contractors.

We also will provide key takeaways for DEI compliance, and steps to mitigate the risks of federal government enforcement actions based on illegal DEI matters.

Federal Contractors' New DEI Obligations

Tue, 31 Mar 2026 19:58:59 GMT

In this special webinar we will address:

Details of the new EO;
The specific prohibition on “racially discriminatory DEI activities” in five key areas;
The new requirements that add materiality to the contract payments and the expansion of the basis for False Claims Act exposure;
New subcontractor management and reporting duties;
Penalties and enforcement, including contract cancellation, debarment from future contracts and FCA actions by DOJ; and,
The detailed implementation deadline for actions, including the new contract clauses, FAR Council guidance and agencies compliance report to the White House.

LRQA Launches TriAge, Developed in Partnership with FortneyScott and Fragomen

Fri, 27 Mar 2026 14:07:50 GMT

In collaboration with FortneyScott and Fragomen law firms, LRQA officially launched TriAge: Age & Eligibility Verification Framework , designed to help employers strengthen hiring and workforce monitoring amid rising age and eligibility verification risks.

TriAge goes beyond basic I‑9 compliance by providing a structured set of best practices to verify identity, age, and eligibility across operations. The framework also supports enhanced oversight and allows for independent validation through audits and assessments.

We are proud to have contributed to the development of LRQA’s TriAge, a practical tool that helps employers build stronger, more defensible hiring practices.

Federal Contractors Face New DEI Compliance Obligations -- New Executive Order Mandates Contract Clause Banning “Racially Discriminatory DEI Activities” and Invokes False Claims Act Liability

Fri, 27 Mar 2026 04:19:42 GMT

President Trump issued a new Executive order ( EO 14398 ) on March 26, 2026, entitled “Addressing DEI Discrimination by Federal Contractors,” and accompanying Fact Sheet . The new EO fundamentally alters the compliance landscape for government contractors. While prior executive orders addressed DEI programs through policy directives, this new EO creates a mandatory, enforceable contract clause that exposes contractors to contract termination, debarment, and False Claims Act (FCA) liability.

The Core Requirement: A New Mandatory Contract Clause

Within 30 days (by April 25, 2026), agencies must insert a specific clause into all covered contracts, subcontracts, and lower-tier subcontracts. By accepting a contract containing this clause, contractors agree to six binding obligations:

1. The contractor will not engage in any “racially discriminatory DEI activities,” as defined in Section 2 of the Executive Order of March 26, 2026 (Addressing DEI Discrimination by Federal Contractors):

2. The contractor will furnish to contracting agencies all information and reports, including providing access to books, records, and accounts, for purposes of ascertaining compliance;

3. In the event of the contractor’s or a subcontractor’s noncompliance with this clause, the government contract may be canceled, terminated, or suspended in whole or in part, and the contractor or subcontractor may be declared ineligible for further Government contracts;

4. The contractor will report any subcontractor’s known or reasonably knowable conduct that may violate this clause to the contracting department or agency and take any appropriate remedial actions directed by the contracting department or agency;

5. The contractor will inform the contracting department or agency if a subcontractor sues the contractor and the suit puts at issue, in any way, the validity of this clause; and,

6. The contractor recognizes that compliance with the requirements of this clause are material to the Government’s payment decisions for purposes of section 3729(b)(4) of title 31, United States Code (False Claims Act).

Immediate Action to Meet Deadlines

Federal contractors face very short deadlines for the implementation of these new obligations, including the inclusion of the new contracting clauses within 30 days, by April 25, 2026.

Federal contractors should initiate steps immediately to ensure compliance, including:

1. Audit Internal Programs: Review mentorship programs, ERGs, leadership development tracks, and supplier diversity initiatives for eligibility criteria based on race or ethnicity.

2. Update Subcontractor Agreements: Immediately begin flowing the mandatory clause down to all subcontractors and establish a monitoring system to satisfy the “known or reasonably knowable” reporting standard.

3. Review Invoicing and Certifications: Ensure that no compliance certifications or payment requests are submitted if prohibited activities exist.

For More Information and Assistance

Register now for FortneyScott’s special webinar, Federal Contractors’ New DEI Obligations that will be held on Tuesday, March 31, 2026 from 12:00 noon to 1:00 ET. This special webinar we will address:

- Details of the new EO

- The specific prohibition on “racially discriminatory DEI activities” in five key areas

- The new requirements that add materiality to the contract payments and the expansion of the basis for False Claims Act exposure

- New subcontractor management and reporting duties

- Penalties and enforcement, including contract cancellation, debarment from future contracts and FCA actions by DOJ

- The detailed implementation deadline for actions, including the new contract clauses, FAR Council guidance and agencies compliance report to the White House

For more information on how federal contractors can comply with this new EO, contact your FortneyScott’s attorney or email us at info@fortneyscott.com .

FortneyScott Workplace Legal Compliance Webinar Series - Part III: Trump Administration Increases DEI Pressure

Fri, 20 Mar 2026 16:11:39 GMT

The webinar will address the key federal agencies’ expansive efforts, including:

EEOC , focusing on the agency’s latest challenges to DEI, including expansive investigations of corporate DEI programs, subpoena enforcement litigation and limiting the rights of trans workers;
DOJ , including the False Claims Act investigations, and challenges to the constitutionality of EO 14173 in 4th and 7th Circuits;
FTC & FCC , highlighting the Mansfield Program, and warning law firms about antitrust compliance, and how DEI can impact regulatory approvals; and,
Certification of Compliance , including GSA’s proposed Certification for grantees, and the implications for federal contractors.

We also will provide key takeaways for DEI compliance, and steps to mitigate the risks of federal government enforcement actions based on illegal DEI matters.

This webinar is the final in a three-part series designed for compliance professions, in-house counsel, HR and inclusion leaders, and other business leaders responsible for labor and employment law compliance.

To register for FortneyScott’s Workplace Legal Compliance training series, please click here .

Part II: What to Expect from DOL

Tue, 03 Mar 2026 16:20:33 GMT

Having been fully funded for FY2026 and with new leadership in place, employers can expect much more from the Department of Labor in the second year of Trump 2.0. Join FortneyScott attorneys on Tuesday, March 3, 2026 at noon EDT to learn DOL’s priorities for 2026 and how to ensure compliance.

Key Topics to be Covered Include:

Overview of DOL
Trump 2.0 officials
Budget for FY2026
Next Steps from Wage & Hour
Status of regulations
PAID Program
Return of Opinion Letters
Child Labor enforcement
FY2025 recovery
Project Firewall
Joint project with DOJ, EEOC and USCIS over H-1Bs
Future of OFCCP – What to expect from the agency now that it has been funded
Key Takeaways to ensure compliance

This webinar is the second in a three-part series designed for compliance professions, in-house counsel, HR and inclusion leaders, and other business leaders responsible for labor and employment law compliance.

Regulatory Update: DOL Proposes Rescission of Current Independent Contractor Rule; NLRB Replaces Joint Employment Rule

Thu, 26 Feb 2026 23:06:34 GMT

The regulatory landscape continues to shift – both the U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB) have announced regulatory changes relating to independent contractors and joint employment.

Overview

DOL has proposed largely returning to the independent contractor rule issued in the first Trump Administration that includes a streamlined five factor economic‑reality test. The NLRB has proposed reinstating the 2020 joint employer regulation. Both of these proposed regulatory changes are positive developments for employers and, if finalized, will provide greater clarity and certainty for employer compliance.

More Detailed Information

DOL Rulemaking : The DOL issued a significant proposed rule to determine employee versus independent contractor status under the Fair Labor Standards Act (FLSA). DOL’s proposed rule will reinstate, with modifications, the streamlined economic‑reality test adopted during the first Trump Administration in the January 7, 2021 final rule.

Under the 2021 rule, the DOL applied a streamlined economic‑reality test that focused on whether a worker is economically dependent on the employer or is operating an independent business. The 2021 rule identifies five factors to apply with the first two factors carrying more weight : (1) the nature and degree of control over the work; (2) the worker’s opportunity for profit or loss; (3) skill required for the work; (4) permanence of the working relationship; and (5) whether the work is part of an integrated unit of production.

The DOL’s modifications to the 2021 standard seek to clarify whether a worker depends on the company to provide work, as opposed to depending on their own business to generate work opportunities. The analysis focuses on the source of work, not the percentage of income the worker earns from a particular company.

The DOL also proposes to extend this updated analysis to the Family and Medical Leave Act (FMLA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), both of which rely on the FLSA’s definition of “employment.”

Key Takeaways for DOL IC Rule:

The DOL’s 2024 rule, which established a six-factor test that created significant uncertainties when applied, will be rescinded.
The DOL proposes returning to the 2021 rule’s five-factor test, with certain updates.
The same analysis would apply under the FMLA and MSPA, aligning worker classification standards across these laws to reduce compliance and enforcement risks.
The proposed changes support employer interests and will enable employers to assess independent contractor relationships and mitigate compliance and enforcement risks.
If finalized, this rule should have wide-reaching implications for employers, contractors, gig economy platforms, and industries that rely on flexible labor models.

NLRB Withdraws and Replaces its Joint Employer Regulation: The National Labor Relations Board will issue a final rule withdrawing its 2023 Joint Employer Rule in the Federal Register on Friday, February 27, 2026. This is following a March 8, 2024 decision by the U.S. District Court for the Eastern District of Texas. Chamber of Commerce v. NLRB , 723 F.Supp. 3d 498, 519 (E.D. Tex. 2024) vacated the 2023 Rule before it took effect. As a result, the Board is reinstating the prior 2020 Joint Employer Status Under the National Labor Relations Act, codified at 29 C.F.R. § 103.40, as the governing standard for determining joint‑employer status under the National Labor Relations Act.

We will continue to monitor these rulemakings closely. Please reach out to FortneyScott, if you would like to submit comments to the agencies or conduct a proactive assessment of the existing independent contractor or joint employerrelationships.

FortneyScott's Workplace Legal Compliance Webinar Series - Part II: What to Expect from DOL

Mon, 16 Feb 2026 15:58:08 GMT

Key Topics to be Covered Include:

Overview of DOL
Trump 2.0 officials
Budget for FY2026
Next Steps from Wage & Hour
Status of regulations
PAID Program
Return of Opinion Letters
Child Labor enforcement
FY2025 recovery
Project Firewall
Joint project with DOJ, EEOC and USCIS over H-1Bs
Future of OFCCP – What to expect from the agency now that it has been funded
Key Takeaways to ensure compliance

To register for FortneyScott’s Workplace Legal Compliance training series, please click here .

Trump Administration Signals Expanded Federal Scrutiny of Employer DEI

Thu, 05 Feb 2026 23:42:05 GMT

DEI continues to be a high priority issue for the Trump Administration. Recent actions by multiple federal agencies, signal increased scrutiny of employer DEI programs. In the past week alone, the Administration has taken several significant actions:

The EEOC filed a subpoena enforcement action against Nike based on a May 2024 Commissioner’s charge filed by EEOC Chair Andrea Lucas. The subpoena seeks company-wide information dating back to 2018, reflecting a more expansive approach to DEI-related investigation and increased willingness to pursue enforcement in federal court.
The Chair of the Federal Trade Commission issued letters to 42 leading law firms warning that participation in the Mansfield Certification program may raise antitrust concerns. EEOC Chair Lucas was copied on the correspondence, highlighting coordinated federal agency attention to diversity-based initiatives.
President Trump made additional demands on Harvard concerning its DEI-practices, substantially increasing the monetary demands from $200 million to $1 billion, while signaling the possibility of additional legal action, including potential criminal exposure.
Federal funding was suspended for one of the largest infrastructure projects in the U.S., the $16 Billion Hudson Tunnel project, based on minority set aside contracting requirements, prompting litigation. This action, which impacts train services between New York City and New Jersey, underscores the intersection of DEI initiatives and federal funding risks.

What should employers do now? In the current enforcement environment, employers should:

Continue to assess DEI programs for legal risk. With a full EEOC quorum now in place, increased scrutiny of corporate DEI programs is likely. Although most employers have reviewed their DEI programs and made necessary changes to address legal compliance, the renewed focus on DEI requires ongoing assessment and update of DEI programs. Ensuring that these best practices remain in place and are followed is crucial.
Prepare for the possibility of broader EEOC investigations. Recent enforcement activity reflects an increased willingness by the EEOC to pursue company-wide inquiries, often supported by expedited subpoena enforcement in matters that originate as individual discrimination charges filed by white employees and applicants.
Evaluate participation in diversity rankings and certifications. Employers should evaluate whether participation in voluntary diversity assessments, ranking programs or other public reporting of diversity results unnecessarily raises the organization's profile and invites heightened scrutiny from the EEOC and other enforcement agencies.

Please contact your FortneyScott attorney or email us at info@fortneyscott.com for additional information on how to be prepared and other best practices recommendations.

2026 Changes to DC Employment Law

Wed, 04 Feb 2026 22:12:31 GMT

As we move further into 2026, employers should review notable changes to DC employment laws that may impact workplace policies and compliance obligations.

Minimum and Living Wage Rates :

From January 1, 2026, through June 30, 2026, any DC contract or government assistance recipient receiving $100,000 or more, as well as their subcontractors receiving at least $15,000 for contracts or $50,000 for government assistance, must pay at least the living wage rate of $17.95 per hour.
Starting July 1, 2026, both the minimum wage rate and the living wage rate will increase to $18.40 per hour.
For tipped employees, the base minimum wage increases to $10.30 per hour on July 1, 2026.

Non-Compete Restrictions :

Starting January 1, 2026, employers are banned from entering non-compete agreements with employees earning less than $162,164, and with medical specialists earning less than $270,274

Pay Stub Transparency :

Starting January 1, 2026, employers must itemize all sources of compensation on employees’ pay stubs, including wages, bonuses, commissions, tips, service charges, etc.

Part I: What to Expect from EEOC

Tue, 03 Feb 2026 20:07:43 GMT

In the second year of Trump 2.0, employers must stay alert to EEOC’s shifting priorities. Join FortneyScott attorneys on Tuesday, February 3, 2026 at noon EDT to learn what to expect from EEOC and the key steps employers must take now to ensure compliance with the new EEOC priorities.

Key Topics to be Covered Include:

New Commission quorum , and how it will impact EEOC priorities;
Current EEOC priorities , including eliminating unlawful DEI, protecting religious liberties, limiting sex discrimination to biological sex and focusing on anti-American discrimination;
Notable EEOC enforcement actions , updates, and emerging trends in the Administration’s civil rights enforcement; and,
Actionable strategies and key takeaways to ensure compliance with Title VII, the PWFA, etc.

This webinar is the first in a three-part series designed for compliance professionals, in-house counsel, HR and inclusion leaders, and other business leaders responsible for labor and employment law compliance.

FortneyScott's Workplace Legal Compliance Webinar Series - Part I: What to Expect from EEOC

Fri, 23 Jan 2026 16:06:07 GMT

In the second year of Trump 2.0, employers must stay alert to EEOC’s shifting priorities. Join FortneyScott attorneys on Tuesday, February 3, 2026 at noon EDT to learn what to expect from EEOC and the key steps employers must take now to ensure compliance with the new EEOC priorities.

Key Topics to be Covered Include:

New Commission quorum , and how it will impact EEOC priorities;
Current EEOC priorities , including eliminating unlawful DEI, protecting religious liberties, limiting sex discrimination to biological sex and focusing on anti-American discrimination;
Notable EEOC enforcement actions, updates, and emerging trends in the Administration’s civil rights enforcement; and,
Actionable strategies and key takeaway s to ensure compliance with Title VII, the PWFA, etc.

To register for FortneyScott’s Workplace Legal Compliance training series, please click here .

FortneyScott Launches New Workplace Legal Compliance Training Series

Wed, 21 Jan 2026 23:25:50 GMT

As employers prepare to face the second year of Trump 2.0, FortneyScott is convening a three-month, complimentary training initiative to help clients stay ahead of the curve and confidently navigate the shifting terrain.

From February through April of 2026, our Workplace Legal Compliance Series will deliver timely, practical insights through:

Monthly Webinars featuring FortneyScott attorneys unpacking the latest developments.
DC Insider—Employer Update Podcasts offering candid analysis from Washington insiders.
Real-Time Alerts on breaking regulatory changes impacting your business.

This exclusive program is tailored to equip employers with the tools they need to strengthen their compliance strategies, mitigate risk, and adapt to the new enforcement priorities taking shape in 2026.

Whether you're a federal contractor, a multi-state employer, or simply seeking clarity in a volatile legal environment, FortneyScott’s training series is your go-to resource for substantive updates and actionable guidance .

How to Participate : Register now for the FortneyScott Workplace Legal Compliance webinars, podcast notifications and alerts:

Register here for all 3 webinars (February 3, March 3 and April 9).
Sign Up for notifications of new podcast episodes of DC Insider—Employer Update.
Sign Up here to receive Workplace Legal Compliance alerts and updates.

If you have an immediate questions or feedback, please contact any of the FortneyScott attorneys or email info@fortneyscott.com .

Part IV: Planning your 2026 Workplace Compliance Priorities

Thu, 18 Dec 2025 20:49:45 GMT

Join FortneyScott attorneys for a complimentary webinar on how employers should prepare for 2026 based on the significant changes in 2025. The Trump Administration begins 2026 with a quorum at the EEOC, new leadership at all the DOL agencies, and the likelihood that the NLRB quorum will be restored soon, so employers should expect aggressive action by all the workforce agencies.

This session will provide critical insights into:

What to expect from EEOC with its new quorum;
An activated DOL, including the new Wage & Hour Division priorities, such as revisions to the Biden-era rules on white collar exemptions and joint employment; new Opinion Letters and compliance tools, how AI is being addressed, and expected developments;
Whether OFCCP will survive in 2026, and changes affecting Federal contractors and grant recipients; and
Practical steps employers should consider before 2026 begins.

This is the final presentation in FortneyScott’s four-part Workplace Legal Compliance Webinar Series 2025, designed for in-house counsel, compliance professionals, HR leaders, and business executives.

Part III: Latest on Challenges to "Illegal DEI"

Thu, 18 Dec 2025 20:47:59 GMT

Join FortneyScott attorneys for a timely webinar addressing the Trump Administration’s escalating enforcement efforts targeting “illegal DEI” practices among federal contractors, grant recipients, and higher education institutions. In recent months, the Administration has initiated certification demands, expanded DOJ investigations under the False Claims Act, and increased EEOC scrutiny under Title VII.

This session will provide critical insights into:

The latest developments in federal investigations and enforcement;
DEI programs under legal challenge; and
Practical steps employers—especially federal contractors and grant recipients—should take now to mitigate legal risk and ensure compliance with EEO laws.

This is the third installment in FortneyScott’s four-part Workplace Legal Compliance Webinar Series, designed for in-house counsel, compliance professionals, HR leaders, and business executives.

FortneyScott Workplace Legal Compliance Webinar Series: Part IV: Planning your 2026 Workplace Compliance Priorities

Wed, 10 Dec 2025 16:24:46 GMT

December 18, 2025 at noon EDT

CLICK HERE to Register

This session will provide critical insights into:

What to expect from EEOC with its new quorum;
An activated DOL, including the new Wage & Hour Division priorities, such as revisions to the Biden-era rules on white collar exemptions and joint employment; new Opinion Letters and compliance tools, how AI is being addressed, and expected developments;
Whether OFCCP will survive in 2026, and changes affecting Federal contractors and grant recipients; and
Practical steps employers should consider before 2026 begins.

To register for FortneyScott’s Workplace Legal Compliance training series, please click here .

The US Government Is Back in Business. What Now? What Next?

Wed, 19 Nov 2025 16:19:36 GMT

The longest US government shutdown has ended; the House will return to Washington and Congress will resume operations; the EEOC has a quorum and can fully operate; the leadership teams for all DOL agencies now are in place; the NLRB waits to learn the fate of its Members; and, the U.S. Supreme Court will be confronting its Emergency Rulings (the “shadow docket”) in merits rulings on the regular docket in several high stakes cases. Everyone in Washington, the US, and, indeed, the whole world is watching and trying to plan their next steps.

Join the Employment Law Alliance (ELA) for an engaging and timely webinar where speakers will discuss what is likely to unfold regarding the workplace and beyond. They will offer practical guidance both for US companies and those that do business with the US .

December 10, 2025

8:00 AM Pacific Time
9:00 AM Mountain Time
10:00 AM Central Time
11:00 AM Eastern Time

Panelists

FortneyScott Workplace Legal Compliance Webinar Series: Part III: Latest on Challenges to “Illegal DEI”

Thu, 30 Oct 2025 17:31:23 GMT

November 20, 2025 at noon EDT

CLICK HERE to Register

This session will provide critical insights into:

The latest developments in federal investigations and enforcement;
DEI programs under legal challenge; and
Practical steps employers—especially federal contractors and grant recipients—should take now to mitigate legal risk and ensure compliance with EEO laws.

This is the third installment in FortneyScott’s four-part Workplace Legal Compliance Webinar Series, designed for in-house counsel, compliance professionals, HR leaders, and business executives.

To register for FortneyScott’s Workplace Legal Compliance training series, please click here .

Part II: Conducting Compensation Reviews in the Changing Legal Landscape

Thu, 23 Oct 2025 17:24:39 GMT

Understanding that everyone is going into Q4, which is the kickoff of your merit and compensation cycles, we want to support those compliance efforts.

Join FortneyScott attorneys and our guest speaker, Rick Holt from Resolution Economics, on Thursday, October 23, 2025, at noon EDT for a discussion on strategies for reviewing compensation decisions under the governing legal standards and the Trump Administration’s enforcement priorities.

We will focus on discussing:

Changes in legal enforcements;
Legal considerations for conducting pay analyses;
Recommendations on refreshing analysis models; and,
Remediation strategies.

Major Changes for Higher Ed: Preparing for DOJ Inquiries and New IPEDS Requirements

Tue, 07 Oct 2025 21:59:20 GMT

On Tuesday, December 2, at 2pm EST , join attorneys from Novus Law Firm and FortneyScott and an I/O Psychologist from DCI as we discuss the scope of data being requested by the federal government and how to ensure that your institution is prepared.

To register for this complimentary webinar, please CLICK HERE .

Higher Education continues to be targeted by the Administration’s enforcement efforts to ensure compliance with federal anti-discrimination laws. Employment and admissions practices are subject to increased scrutiny by multiple federal agencies. For instance, both the Department of Justice (DOJ) and Health & Human Services (HHS) have issued Civil Investigation Demand (CID) letters requiring the submission of voluminous data and documents. These investigations pose significant risks, including potential civil and criminal lability, and the loss of federal contracts and grants.

Additionally, the Department of Education (ED) has proposed major changes to the Integrated Postsecondary Education Data System (IPEDS) which, if implemented, would require institutions to report up to six years of detailed admissions data including applicant demographics and admissions criteria for undergraduate and graduate programs.

Given this rapidly changing legal compliance landscape, higher education institutions should be prepared for government investigations that scrutinize wide-ranging practices, including those related to employment, admissions, and compensation.

We will cover:

Responding to federal agency investigations, which can include CIDs & scope of data production
How to prepare for a potential investigation
How the proposed IPED revisions may impact reporting burdens
How federal agencies may use and share institute data
Prospective data analytics that should be conducted

FortneyScott Workplace Legal Compliance Webinar Series: Part II: Conducting Compensation Reviews in the Changing Legal Landscape

Wed, 01 Oct 2025 21:16:43 GMT

Understanding that everyone is going into Q4, which is the kickoff of your merit and compensation cycles, we want to support those compliance efforts.

We will focus on discussing:

Changes in legal enforcements;
Legal considerations for conducting pay analyses;
Recommendations on refreshing analysis models; and,
Remediation strategies.

 To register for FortneyScott’s Workplace Legal Compliance training series, please click here .

Part I: EEOC Trends and Employer Readiness

Thu, 18 Sep 2025 18:16:48 GMT

Federal policies under the Trump Administration are reshaping workplaces nationwide. Employers must stay ahead of evolving laws and shifting EEOC priorities. Join FortneyScott attorneys on Thursday, September 18th at noon EDT to learn the key steps organizations should take now to ensure compliance with EEO laws influenced by these broader policy changes.

Key Topics to be Covered Include:

Status of the Commission and what to expect once there is a restored quorum;
Current EEOC priorities , including protecting religious liberties, eliminating unlawful DEI, and reshaping sex discrimination;
Notable EEOC enforcement actions, updates, and emerging trends; and
Actionable strategies and key takeaways to ensure compliance with Title VII, the PWFA, etc .

This webinar is the first in a four-part series designed for compliance professionals, in-house counsel, HR and inclusion leaders, and other business leaders responsible for labor and employment law compliance.

FortneyScott Workplace Legal Compliance Webinar Series: Part I: EEOC Trends and Employer Readiness

Thu, 04 Sep 2025 19:40:30 GMT

Federal policies under the Trump Administration are reshaping workplaces nationwide. Employers must stay ahead of evolving laws and shifting EEOC priorities. Join FortneyScott attorneys on Thursday, September 18 ^th at noon EDT to learn the key steps organizations should take now to ensure compliance with EEO laws influenced by these broader policy changes.

Key Topics to be Covered Include:

Status of the Commission and what to expect once there is a restored quorum;
Current EEOC priorities , including protecting religious liberties, eliminating unlawful DEI, and reshaping sex discrimination;
Notable EEOC enforcement actions, updates, and emerging trends; and
Actionable strategies and key takeaways to ensure compliance with Title VII, the PWFA, etc.

To register for FortneyScott’s Workplace Legal Compliance training series, please click here .

FortneyScott Launches Workplace Legal Compliance Training Series

Tue, 02 Sep 2025 22:29:48 GMT

During the first months of the Trump Administration employers have faced unprecedented challenges in understanding and keeping up with the rapidly changing legal environment. To assist our clients in successfully navigating these challenges, FortneyScott is initiating a four-month, complimentary training program addressing Workplace Legal Compliance. These new, original trainings will occur during September through December, 2025 and will include 4 monthly webinars, at least 4 podcasts of DC Insider—Employer Update and timely alerts as developments unfold. The trainings are designed to provide substantive updates and to assist employers in addressing the latest developments as part of their organization’s comprehensive workplace legal compliance program.

How to Participate : Register now for the FortneyScott Workplace Legal Compliance webinars, podcast notifications and alerts:

Register for all 4 webinars (September 18, October 23, November 20 and December 18).
Register for notifications of new podcast episodes of DC Insider—Employer Update.
Register for Workplace Legal Compliance alerts and updates.

If you have an immediate questions or feedback, please contact any of the FortneyScott attorneys or email info@fortneyscott.com .

Additional Background : Workplace legal compliance is essential for mitigating risk, protecting employees, and fostering a positive and reputable company culture. Adhering to federal, state, and local laws concerning labor, safety, and discrimination prevents costly penalties, lawsuits, and operational disruptions. Beyond simply avoiding legal and financial consequences, compliance builds trust with employees and other stakeholders by demonstrating a commitment to ethical conduct. This creates a fair and safe work environment that boosts employee morale, increases retention, and enhances overall productivity. By proactively managing legal responsibilities, an organization strengthens its reputation and brand image, which in turn can attract top talent and create a competitive advantage in the marketplace.

FortneyScott’s Workplace Legal Compliance supports employers in meeting these objectives. Ultimately, legal compliance is not only a regulatory obligation – it is a strategic investment in the long-term success and integrity of your organization.

David Fortney Recognized in The Best Lawyers of America for 2026

Thu, 21 Aug 2025 19:56:31 GMT

We are pleased to announce that FortneyScott attorney David Fortney has been recognized as one of The Best Lawyers in America for 2026, in recognition of outstanding achievement and contributions to the field of Labor and Employment law.

This marks a continuation of his recognition in The Best Lawyers in America since 2008, reflecting a sustained commitment to excellence, innovation, and leadership. It underscores the impact of his work within the professional community.

We extend our congratulations on this well-deserved recognition.

DOJ’s Civil Division is Initiating False Claims Act Investigations of DEI Practices

Mon, 18 Aug 2025 15:06:03 GMT

The U.S. Department of Justice (DOJ), Civil Division is sending Civil Investigative Demands (CIDs) to federal contractors seeking information on their DEI practices, under its authority to investigate False Claims Act (FCA) claims.

Flowing from President Trump’s Executive Order 14173, which seeks to limit DEI efforts, the DOJ recently launched the Civil Rights Fraud Initiative, which utilizes the FCA to investigate and pursue claims against recipients of federal funds (including federal contractors) that their DEI practices violate federal civil rights laws.

The focus of these investigations will likely be:

Discriminatory preferences/goals: DEI programs that assign benefits or burdens based on race, ethnicity, or national origin.
Use of proxies to mask discrimination: Practices using criteria like "cultural competence" or "lived experience" as proxies for protected characteristics in hiring or promotion decisions.
Segregation in the workplace: Limiting membership in affinity groups or separating employees by protected characteristics during training.
Discriminatory training programs: DEI training that promotes stereotypes, excludes individuals based on protected characteristics, or creates a hostile environment.
Failure to protect against antisemitism: Institutions accepting federal funds that do not adequately address antisemitism or other civil rights violations.

Organizations found to be in violation of the FCA can face significant penalties, including treble damages (three times the amount of damages incurred by the government), civil penalties for each false claim, and reputational harm.

As a result, all federal contractors and grant recipients should be on high alert for any communication from DOJ and should immediately notify internal counsel if any such communication is received.

Please contact your FortneyScott attorney or email us at info@fortneyscott.com for additional information on how to be prepared and to respond to these DOJ investigations and other best practices recommendations.

DOL Update in Trump 2.0

Mon, 18 Aug 2025 14:39:09 GMT

As the Trump Administration reshapes the U.S. Department of Labor (DOL), employers and federal contractors face significant shifts in agency leadership, budget priorities, enforcement programs, and regulatory strategies. Join FortneyScott attorneys for an in-depth webinar covering what these changes may mean for your organization.

Key Topics to be Covered Include:

New Leadership: Review of confirmed and pending DOL appointees, including Secretary Chavez-DeRemer and Deputy Secretary Keith Sonderling.
Compliance & Self-Audit Programs: Expansion of opinion letter guidance and voluntary audit initiatives across W&H, VETS, OSHA, EBSA, MSHA, and OLMS.
Aggressive Deregulatory Agenda: Efforts to revoke EO 11246 regulations, registered apprenticeship affirmative action requirements, and legacy EBSA guidance.
Regulatory Revisions & Enforcement: Reforms to Section 503, VEVRAA, tip-credit rules, and child labor standards — including new penalty frameworks.
Status of Biden-Era Rules: Updates on independent contractor, overtime, minimum wage, and PLA-related regulations.
Proposed FY2026 Budget: 35% overall reduction, including workforce downsizing and potential elimination of OFCCP, Job Corp, and the Women’s Bureau.
Strategic Considerations: How the return of the PAID program and potential OFCCP self-audit options may affect employer risk exposure.

Register for FortneyScott’s Next Webinar: DOL in Trump 2.0

Fri, 01 Aug 2025 16:16:34 GMT

As the Trump Administration reshapes the U.S. Department of Labor (DOL), employers and federal contractors face significant shifts in agency leadership, budget priorities, enforcement programs, and regulatory strategies. Join FortneyScott attorneys on Thursday, August 14th at noon EDT for an in-depth webinar covering what these changes may mean for your organization. CLICK HERE to register.

Key Topics to be Covered Include:

New Leadership: Review of confirmed and pending DOL appointees, including Secretary Chavez-DeRemer and Deputy Secretary Keith Sonderling.
Compliance & Self-Audit Programs: Expansion of opinion letter guidance and voluntary audit initiatives across W&H, VETS, OSHA, EBSA, MSHA, and OLMS.
Aggressive Deregulatory Agenda: Efforts to revoke EO 11246 regulations, registered apprenticeship affirmative action requirements, and legacy EBSA guidance.
Regulatory Revisions & Enforcement: Reforms to Section 503, VEVRAA, tip-credit rules, and child labor standards — including new penalty frameworks.
Status of Biden-Era Rules: Updates on independent contractor, overtime, minimum wage, and PLA-related regulations.
Proposed FY2026 Budget: 35% overall reduction, including workforce downsizing and potential elimination of OFCCP, Job Corp, and the Women’s Bureau.
Strategic Considerations: How the return of the PAID program and potential OFCCP self-audit options may affect employer risk exposure.

Who Should Attend:
Compliance professionals, in-house counsel, HR and inclusion leaders, and anyone with responsibility for compliance with labor and employment laws.

Ninth Circuit Orders Release of EEO-1 Reports by DOL

Thu, 31 Jul 2025 19:38:21 GMT

On July 30, 2025, the U.S. Court of Appeals for the Ninth Circuit in a panel decision affirmed the District Court’s Order in Center for Investigative Reporting v. DOL compelling the DOL to disclose federal contractors’ EEO-1 reports in response to a Freedom of Information Act (“FOIA”) request.

The underlying FOIA request was sent to the DOL’s Office of Federal Contract Compliance Programs (“OFCCP”) in 2022 seeking consolidated EEO-1 reports for all federal contractors filed between 2016 and 2020. DOL disclosed the EEO-1 report of non-objecting contractors but withheld from disclosure 16,755 EEO reports from 4,141 objection contractors.

In its Opinion, the Ninth Circuit affirmed the District Order’s finding that EEO-1 reports are not exempt from disclosure under FOIA Exemption 4, which protects trade secrets and confidential commercial or financial information. Specifically, the Ninth Circuit found that EEO-1 report data is not “commercial” because workforce-compensation data is not designed to be bought and sold, nor does it reveal basic commercial operations, such as sales statistics, profits and losses, or inventories. The Court held that DOL failed to establish that EEO-1 reports describe an exchange of goods or services or the making of a profit.

While the Ninth Circuit Order is limited to compelling the release of 2016-2020 reports in response to CIR’s FOIA request, DOL also relied on Exemption 4 to withhold the production of federal contractors’ 2021 consolidated EEO-1 reports in response to FOIA requests issued by the University of Utah and As You Sow.

DOL has not issued a comment, and it is not known at this time whether the DOL will appeal this determination. FortneyScott will continue to monitor this and related cases.

Trump Administration's AI Action Plan - What Employers Need to Know

Thu, 31 Jul 2025 18:25:15 GMT

On July 23, 2025, the Trump Administration issued America’s AI Action Plan that provides policy recommendations to achieve the goal of global AI dominance by the United States. Of particular interest to employers, the Action Plan includes recommendations to empower American workers in the age of AI, for training a skilled workforce for AI infrastructure and jobs, and for developing new criteria to address misinformation, including specifically identifying DEI.

Join FortneyScott for a discussion on the employment-law related key provisions of America’s AI Action Plan and how they may impact the workforce.

Trump Administration’s AI Action Plan – What Employers Need to Know

Thu, 24 Jul 2025 22:25:41 GMT

Join FortneyScott lawyers on Thursday, July 31, 2025, at 12:00 PM ET for a discussion of the employment-law related key provisions of America’s AI Action Plan and how they may impact the workforce. Please click here to register.

New DOL Self-Audit Programs

Thu, 24 Jul 2025 17:52:52 GMT

The U.S. Department of Labor (DOL) today announced several programs designed to help employers, as well as unions and pension plans, voluntarily assess and improve their compliance with federal labor laws. “Self-audits are one of the most effective ways to build a culture of compliance and trust,” said Deputy Secretary of Labor Keith Sonderling. “These programs are designed to give employers … the tools they need to correct potential violations proactively.”

Of particular interest for employer compliance, the self-audit programs include:

minimum wage and overtime under the Fair Labor Standards Act (FLSA) and benefits under the Family and Medical Leave Act (FMLA) (Payroll Audit Independent Determination (PAID)) ;
protected veterans’ rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA) (SALUTE - Support and Assistance for Leaders in USERRA Training and Employment) ; and,
safety and health programs (Voluntary Protection Programs) .

For employers dealing with Wage & Hour issues, the Payroll Audit Independent Determination (PAID) established in the prior Trump Administration for resolution of FLSA and FMLA compliance matters has been reinstituted. By using the PAID program, the audit results that are approved by DOL can provide significant protection against collective and class overtime claims for employers.

FortneyScott has extensive experience in advising clients on self-audits that are overseen by DOL. Please contact your FortneyScott attorney for more information about these new compliance opportunities.

The White House Announces America’s AI Action Plan

Wed, 23 Jul 2025 22:56:48 GMT

The Trump Administration announced an ambitious Artificial Intelligence Action Plan that provides policy recommendations to achieve the goal of global AI dominance by the United States. Of particular interest to employers, the Action Plan includes recommendations to empower American workers in the age of AI, for training a skilled workforce for AI infrastructure, jobs, and developing new criteria to address misinformation, including specifically identifying DEI.

Overview of the Action Plan . As anticipated by Executive Order 14179 , Removing Barriers to American Leadership in Artificial Intelligence , the White House issued Winning the Race: America’s AI Action Plan (the “Action Plan”) on July 23, 2025. The Action Plan sets forth the Administration’s policy recommendations based on the following three pillars: (1) acceleration of AI innovation; (2) building American AI infrastructure, and (3) leading in international AI diplomacy and security. Further, the Action Plan contemplates initiatives led by various federal agencies, including the Department of Labor (“DOL”), to promote the advancement and adoption of AI throughout all facets of American life.

Key initiatives of the Action Plan include significant deregulatory efforts aimed at promoting AI development:

Consistent with Executive Order 14192 , Unleashing Prosperity Through Deregulation , the Office of Management and Budget (“OMB”) will work with all federal agencies to review, rescind, and/or amend regulatory and sub-regulatory hinderances to AI development and deployment;
OMB will also work with federal agencies to limit discretionary AI-related federal funding to states with AI regulatory requirements that the administration considers onerous; and
The National Institute of Standards and Technology (“NIST”) will revise its “AI Risk Management Framework” to eliminate references to misinformation, DEI, and climate change.

The Key Workforce Provisions. The Action Plan tasks the DOL with leading, either on its own or in conjunction with other agencies, to empower American workers in the age of AI, including:

Workforce funding streams should flow towards training, apprenticeships, and other skill-based initiatives that prioritize AI skill development;
The Bureau of Labor Statistics should study AI’s impact on the labor market to incorporate the findings into DOL’s forthcoming “AI Workforce Research Hub”; and
Exposure programs, pre-apprenticeships, training programs, and Registered Apprenticeships should be created and/or expanded for occupations related to the building, operation, and maintenance of AI infrastructure.

The Action Plan also includes specific recommendations to DOL for training a skilled workforce for AI infrastructure work. DOL will:

identify high-priority occupations;
partner with state and local government to support the creation of industry-driven training programs;
expand early career exposure and pre-apprenticeship programs; and,
expand the use of Registered Apprenticeship in occupations that are critical to AI infrastructure.

Employers Next Steps. As federal agencies accelerate and focus on AI adoption, private sector organizations need to assess how their workforce strategies align with emerging national priorities. Employers need to identify opportunities to ensure their workforces are trained and proficient with AI-related skills and technology. Companies may also want to explore paths to participate in or benefit from federal programs and funding aimed at supporting AI innovation, infrastructure, and international leadership. Additionally employers need to be cognizant of a likely tension between the federal deregulatory approach and a growing number of state law and regulatory requirements addressing the use of AI in the workplace.

FortneyScott invites clients and friends for a complimentary webinar discussing these developments on July 31, 2025, at 12:00 PM ET. Please click here to register.

If you have any questions, please reach out to your FortneyScott attorney.

Federal Contractor Compliance Update - DOJ, EEOC and DOL

Thu, 10 Jul 2025 20:39:12 GMT

On Friday, June 27, 2025, OFCCP Director Catherine Eschbach issued a letter inviting federal contractors to voluntarily submit information to OFCCP detailing contractors’ efforts to “wind down compliance with the EO 11246 regulatory scheme and ensure full compliance with the Nation’s non-discrimination laws.”

Join David Fortney, Liz Bradley and Nita Beecher as they analyze Director Eschbach’s letter and provide practical insights to assist federal contractors in deciding whether or how to respond to this request.

DOL Secretary's Order 08-2025 Lifts Section 503 and VEVRAA Abeyance

Wed, 02 Jul 2025 20:02:52 GMT

The U.S. Department of Labor has officially lifted the abeyance on OFCCP’s enforcement of Section 503 of the Rehabilitation Act (503) and the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) via Secretary's Order 08-2025 , issued by Secretary Lori Chavez-DeRemer.

This development follows the January 2025 revocation of Executive Order (EO) 11246 through the Trump Administration's EO 14173, which fundamentally altered OFCCP’s enforcement priorities and led to the temporary pause of Section 503 and VEVRAA activities via Secretary’s Order 03-2025.

Key Takeaways for Employers

Immediate Resumption of Investigations:
OFCCP will begin processing all Section 503 and VEVRAA complaints held during the abeyance. New complaints filed during the suspension period will also move forward.
Administrative Closure of Compliance Reviews:
Due to historical entwinement of EO 11246 review formats with Section 503/VEVRAA, all pending compliance reviews are being administratively closed. Formal notifications will be issued to affected contractors.
AAP Certification Still Closed:
Despite the resumed enforcement, the affirmative action program (AAP) certification portal remains closed . Employers are still obligated to maintain compliance with Section 503 and VEVRAA regulations.
VAHBP Enforcement Moratorium Extended:
Providers under the Veterans Affairs Health Benefits Program (VAHBP) remain exempt from affirmative action enforcement under Section 503 and VEVRAA through May 7, 2027 . They are still subject to nondiscrimination complaint investigations.

What Employers Should Do Now

Watch for formal notice of compliance review closures and updates from OFCCP.
Monitor communications from OFCCP and the Department of Labor for further guidance.
Reach out to FortneyScott for assistance to:
Review existing Section 503 and VEVRAA policies and documentation.
Ensure ongoing compliance with regulatory obligations, such as preparation of 503 and VEVRAA AAPs.

Another EO 14173 Development - Proposed Changes to OFCCP Regulations

Wed, 02 Jul 2025 13:06:29 GMT

The DOL is proposing to rescind the regulations implementing EO 11246 in addition to revising its regulations for Section 503 and VEVRAA in response to President Trump’s EO 14173 and EO 14219 .

Proposed Changes to Section 503 Regulations

The Trump Administration has proposed significant changes to the Section 503 regulations applicable to federal contractors. Specifically, the proposal:

Eliminates 41 C.F.R. § 60-741.42, which requires contractors to invite applicants and employees to self-identify disability status. The Administration asserts that such data collection is inconsistent with the ADA, notwithstanding EEOC guidance affirming its permissibility.
Removes the requirement under 41 C.F.R. § 60-741.44(k) for contractors to document data collection analysis , while retaining the annual assessment obligation for evaluating outreach and recruitment efforts under 41 C.F.R. § 60-741.44(f)(3).
Rescinds the 7% utilization goal in 41 C.F.R. § 60-741.45 , citing its reliance on revoked EO 11246 job group structures. The proposal makes clear it will not impose a substitute analysis, referencing the directive in EO 14219 to reduce regulatory burdens.
Removes cross-references and provisions tied to EO 11246 , while adding provisions for administrative enforcement proceedings under 41 C.F.R. § 60-741.65.

These changes reflect a broader deregulatory approach and raise significant compliance and policy considerations for federal contractors.

Proposed Changes to VEVRAA

The proposed changes to VEVRAA are simply to remove cross references and language citing EO 11246 authority and to add administrative enforcement proceeding provisions to 41 C.F.R. § 60-300. VEVRAA proposal retains both the self-identification requirements for protected veterans and the hiring benchmark (at this point, OFCCP has not updated its hiring benchmark for 2025).

Conclusion

Despite the impending elimination of OFCCP—set for October 1, 2025—the comment periods for all three regulatory developments end September 2, 2025. OMB will then have an additional 30-day comment period.

If you are interested in filing comments to these proposed changes, please let FortneyScott know by reaching out to your FortneyScott attorney or sending us an email at info@fortneyscott.com .

In the meantime, FortneyScott will continue to monitor these and other developments related to EO 14173.

OFCCP Proposes Regulatory Changes – 60-Day Comment Period Begins Tomorrow

Mon, 30 Jun 2025 22:20:28 GMT

The OFCCP has made available for public review proposed changes to the regulations under VEVRAA and Section 503 . It has also released a proposal to eliminate the regulations tied to Executive Order 11246. These proposed rules are expected to be officially published in the Federal Register tomorrow, initiating a 60-day period for public comment.

The move to rescind the Executive Order 11246 regulations follows the recent revocation of that order through Executive Order 14173. Changes suggested for the VEVRAA regulations appear to be minimal and would not significantly alter compliance obligations for contractors. In contrast, the proposed updates to the Section 503 rules would eliminate the 7 percent utilization goal by job group and the requirement that applicants/employees self-identify as disabled while retaining the annual outreach and recruitment assessment.

Final rules are not anticipated for several months, and in the meantime, the current VEVRAA and Section 503 regulations remain in effect.

The proposed rules will be published in the Federal Register tomorrow :

https://www.federalregister.gov/public-inspection/current#regular-filing-federal-contract-compliance-programs-office

Register For the Next FortneyScott Webinar: OFCCP’s Letter on Compliance with EO 14173 – What Does It Mean for Federal Contractors?

Mon, 30 Jun 2025 19:49:35 GMT

On Friday, June 27, 2025, OFCCP Director Catherine Eschbach issued a letter inviting federal contractors to voluntarily submit information to OFCCP detailing contractors’ efforts to “wind down compliance with the EO 11246 regulatory scheme and ensure full compliance with the Nation’s non-discrimination laws.”

Join David Fortney, Liz Bradley and Nita Beecher at 1:00 pm ET on Thursday, July 10th as they analyze Director Eschbach’s letter and provide practical insights to assist federal contractors in deciding whether or how to respond to this request.

Specifically, they will discuss:

The authority of OFCCP to collect this information.
How OFCCP might use the submitted data.
Whether submissions are likely to be subject to FOIA.
Potential implications for contractors who choose to submit or not to submit data.
Practical recommendations for crafting an effective response.

To register for this webinar, click here . For additional information, please visit FortneyScott’s website , including recent developments and FortneyScott’s webinars and podcasts .

OFCCP Requests Voluntary Submissions Under EO 14173

Fri, 27 Jun 2025 22:19:40 GMT

On Friday, June 27, 2025, OFCCP Director Catherine Eschbach issued a letter inviting federal contractors to voluntarily share with OFCCP how they have implemented program changes under Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity .

Participation is entirely at the contractor’s discretion, including the content and format of such information and contractors have 90 days from date of the letter, or until Sept 25, to submit info into contractor portal. Submission instructions are available on OFCCP’s Contractor Portal .

Director Eschbach’s letter further encourages federal contractors to provide:

Confirmation that they have reviewed their EO 11246 affirmative action efforts;
An assessment of whether employment or recruitment practices require modification; and
If so, a description of the changes made and the steps taken to modify those practices.

The letter then provides a list of the type of employment practices federal contractors should consider providing, to include:

Trainings, sponsorship programs, leadership development programs, educational funding, or other privileges of employment available only to employees of a certain race or sex;
Placement goals based on race or sex;
Ratings by diversity organizations that graded employers on factors designed to promote the rise of non-white, non-male employees;
Using applicants’ or employees’ participation in race- or sex-related (internal or external) groups or organizations as a “plus factor” or proxy for race or sex in employment and hiring decisions;
Tying executive compensation to meeting race- or sex-based hiring, promotion, retention, representation, or other employee-demographic-related goals;
Mandating courses, orientation programs, or trainings designed to emphasize and focus on racial stereotypes; and
Encouraging employees to make recruitment efforts to or employment referrals of certain candidates based on race or sex.

Director Eschbach concludes by recommending federal contractors consult the recent technical guidance by EEOC on what constitutes unlawful discrimination at work.

FortneyScott is reaching out to DOL officials for further information. In the meantime, FortneyScott is actively advising clients on how to respond to this voluntary request.

If you have any questions, please reach out to your FortneyScott attorney.

Developments Under Executive Order 14173

Thu, 26 Jun 2025 19:19:01 GMT

Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity , requires federal contractors to certify that their DEI programs comply with federal anti-discrimination laws. While some prime contractors have attempted to “flow down” this certification requirement to subcontractors, EO 14173 does not mandate such action. At present, subcontractors are not obligated to accept these flowed-down provisions.

Additionally, under Executive Order 14275, Restoring Common Sense to Federal Procurement , amendments to the FAR/DFARS are expected, though no formal proposals have been issued to date.

FortneyScott is closely tracking these developments and continues to advise clients as guidance evolves. For further information, please contact your FortneyScott attorney.

EEOC Update in Trump 2.0

Fri, 06 Jun 2025 18:06:16 GMT

Special guest, Victoria Lipnic , former EEOC Commissioner and Acting Chair who now is a Partner at Resolution Economics and leader of the firm’s Human Capital Strategy Group, joins FortneyScott attorneys, David Fortney and H. Juanita Beecher, to discuss the latest EEOC developments.

Under the leadership of President Trump’s Acting Chair Andrea Lucas, the EEOC has been busy implementing the Administration’s agenda. This has included President Trump’s Executive Orders announcing forebearance on disparate impact enforcement, focusing on “Illegal DEI,” removing guidance and materials relating to gender identity, and focusing on religious discrimination, anti-Semitism, and anti-Christian bias. We also will discuss the status of the two announced nominations for EEOC commissioners and staffing of critical positions at the agency.

Department of Labor Expands Compliance Assistance with New Opinion Letter Program

Fri, 06 Jun 2025 16:21:41 GMT

The U.S. Department of Labor (DOL) has launched a new Opinion Letter Program , expanding its compliance assistance for workers, employers, and stakeholders seeking clarity on federal labor laws. This initiative enhances guidance on workplace legal requirements by providing official interpretations from five key enforcement agencies. FortneyScott has extensive experience securing opinion letters, and the Firm has successfully obtained significant DOL opinion letters in the past.

What Employers Need to Know

Through this program, employers can receive official written interpretations of labor laws as they apply to specific workplace situations. The following agencies will issue tailored guidance:

Wage and Hour Division (WHD): Provides opinion letters on wage, hour, and employment law matters.
Occupational Safety and Health Administration (OSHA): Issues letters of interpretation on workplace safety regulations.
Employee Benefits Security Administration (EBSA): Publishes advisory opinions and information letters on employee benefits compliance.
Veterans’ Employment and Training Service (VETS): Releases opinion letters related to veteran employment laws.
Mine Safety and Health Administration (MSHA): Offers compliance assistance through the new MSHA Information Hub, featuring regulatory updates and training resources.

Why It Matters

Opinion letters provide clarity, consistency, and transparency in federal labor law enforcement. Employers can use them as reliable legal guidance to ensure adherence to wage, benefits, and safety requirements, reducing the risk of noncompliance and potential litigation.

Deputy Secretary of Labor Keith Sonderling emphasized that “opinion letters are an important tool in ensuring workers and businesses alike have access to clear, practical guidance.”

Next Steps for Employers

To leverage this resource, employers can:

Explore previously issued guidance .
Contact your FortneyScott attorney should you need any assistance in submitting a request for an opinion letter or compliance guidance.

This program presents a valuable opportunity for businesses to navigate complex employment laws with authoritative insights from federal agencies. Employers should consider requesting opinion letters when facing regulatory uncertainties to strengthen compliance efforts

Save-the-Date: FortneyScott’s Webinar on June 5, 2025

Thu, 22 May 2025 21:40:46 GMT

On Thursday, June 5, 2025, from 2:00 to 3:00 p.m. ET, FortneyScott will host a webinar entitled, EEOC Update in Trump 2.0 . Join us for this practical, timely discussion designed to help HR professionals, in-house counsel, and business leaders navigate these challenging areas. As a special guest, Victoria Lipnic , former EEOC Commissioner and Acting Chair who now is a Partner at Resolution Economics and leader of the firm’s Human Capital Strategy Group, will join FortneyScott attorneys, David Fortney and H. Juanita Beecher, to discuss the latest EEOC developments.

To register for this webinar, click here . For additional information, please visit FortneyScott’s website , including recent developments and FortneyScott’s webinars and podcasts .

Civil Rights Fraud Initiative

Tue, 20 May 2025 21:52:21 GMT

On May 19, 2025, the Department of Justice (DOJ) announced a new Civil Rights Fraud Initiative, which will utilize the False Claims Act (FCA) to investigate and, as appropriate, pursue claims against any recipient of federal funds that knowingly violates federal civil rights laws. Violations of the FCA can result in treble damages and significant penalties.

Deputy US Attorney General Todd Blanche issued a memorandum instructing DOJ attorneys to file FCA claims against recipients of federal money if a recipient knowingly violates civil right laws and falsely certifies compliance with Title IV, Title VI, and Title IX of the Civil Rights Acts of 1964. The memorandum states that the FCA is also implicated whenever federal funding recipients and contractors certify compliance with civil rights laws while knowingly engaging in racist preferences, mandates, policies, programs and activities, including through diversity, equity, and inclusion (DEI) programs that assign benefits or burdens on race, ethnicity, or national origin.

The memorandum provided the following example as violating the FCA:

Accordingly, a university that accepts federal funds could violate the False Claims Act when it encourages antisemitism, refuses to protect Jewish students, allows men to intrude into women’s bathrooms, or requires women to compete against men in athletic competitions.

The Initiative will utilize the FCA to investigate and pursue claims, and will be co-led by the DOJ’s Civil Division’s Fraud Section and the Civil Rights Division.

Finally, the DOJ strongly encourages private parties “to protect the public interest by filing lawsuits and litigating claims” under the FCA—reminding the public that successful FCA claims will result in the reporting party receiving a share of the financial damages that are imposed again FCA violators.

FortneyScott will continue to monitor these developments.

If you have any questions, please reach out to your FortneyScott attorney.

EEO-1 Portal Is Now Open

Tue, 20 May 2025 18:02:51 GMT

The Equal Employment Opportunity Commission (EEOC) officially opened the 2024 EEO-1 Component 1 data collection portal today, May 20, 2025. All private employers with 100 or more employees and any federal contractors with 50 or more employees are required to file their EEO-1 Reports by June 24, 2025. On the EEOC website employers can find FAQs , instruction booklet , fact sheets , file specifications and more.

In her message announcing the opening of the portal, Acting Chair Andrea Lucas reinforced the Trump Administration’s anti-DEI push, stating:

I want to take this opportunity to remind you of your obligations under Title VII
of the Civil Rights Act of 1964 not to take any employment actions based on, or
motivated in whole or in part by, any employee’s race, sex or other protected
characteristics.

She went on to say that there is no “diversity” exception to Title VII’s requirements and reminded employers that just because employers collect and report race and sex data does not justify using the data to treat employees differently based on protected characteristics. Acting Chair Lucas also noted that President Trump’s Executive Order on disparate impact directed all agencies, including EEOC, to deprioritize “disparate impact” enforcement.

If you have any questions, please reach out to your FortneyScott attorney.

EEO-1 Report Portal Expected to Open on May 20, 2025

Thu, 15 May 2025 16:27:19 GMT

EEOC is expected to open the portal for submission of 2024 EEO-1 Component 1 Report on May 20, 2025. On May 12, 2025, the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB) approved the proposed changes to the 2024 EEO-1 Component 1 Report. The EEOC had submitted the revised 2024 EEO-1 Component 1 Data Collection Instruction Booklet and justifications for the changes to OMB on April 15.

The primary change for employers is the elimination of the report’s non-binary reporting option in response to President Trump’s Executive Order 14168, Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government . In addition, EEOC will no longer provide the “Notice of Failure to File” letter to employers with incomplete or unfiled EEO-1 Reports and updated the procedures for requesting an undue hardship.

According to the EEOC’s 2024 EEO-1 Component 1 Data Collection Instruction Booklet, employers will have a much shorter filing period to file their reports than in previous years as the portal will close on June 24, 2025 . With this significantly shorter filing period (which is nearly a month shorter than last year), employers should begin collecting their data as soon as possible.

One additional note, although Executive Order 11246 was rescinded by President Trump on January 21, 2025, the Booklet notes that federal contractors with 50 or more employees will still be required to file EEO-1 Reports on their 2024 data.

FortneyScott will provide an update as soon as EEOC officially announces the opening of the portal for submission of 2024 EEO-1 Component 1 Reports.

If you have any questions, please reach out to your FortneyScott attorney.

OFCCP ALL BUT SHUTTERED

Wed, 07 May 2025 21:01:52 GMT

Most of the remaining employees of the Department of Labor’s Office of Federal Contract Compliance Programs received layoff notices this week as the plan to drastically downsize the Office in the wake of Executive Order 14173 proceeds. Affected workers at the OFCCP got a 30-day warning in advance of their June 6th terminations. The agency plans to maintain a presence only in the Southwest region, with a headquarters in Dallas.

EEOC Nominee Creates Functioning Quorum at Agency

Wed, 07 May 2025 17:14:58 GMT

President Donald Trump has nominated Brittany Bull Panuccio, an assistant U.S. attorney in Florida, to the U.S. Equal Employment Opportunity Commission. If confirmed, her term would run to July 2029.

Panuccio's confirmation would restore the Commission's quorum and create a Republican majority. The reconstituted Commission would be able to issue or withdraw regulations and institute policies in the line with the Trump administrations’ positions. She will join EEOC's Acting Chair, Andrea Lucas, a Trump appointee (renominated), and Commissioner Kalpana Kotagal, who was appointed by President Joe Biden.

DOL Issues Guidance on Independent Contractor Misclassification Enforcement

Thu, 01 May 2025 23:00:58 GMT

Today, the DOL published a Field Assistance Bulletin (FAB) to provide enforcement guidance to the DOL’s Wage and Hour Division (WHD) field staff when determining whether an independent contractor has been misclassified under FLSA.

Specifically, the DOL’s Press Release states that the agency is still reviewing the 2024 final rule, Employee or Independent Contractor Classification Under the Fair Labor Standards Act (2024 Rules) and, therefore, WHD investigators are directed not to apply the 2024 Rule when determining employee versus independent contractor status in FLSA investigation. Instead, investigators are told to rely on the prior version of Fact Sheet 13 that was issued in July 2008 which is included in the FAB, and reinstated Opinion Letter FLSA 2019-6 with respect to any matter for which no payment has been made for back wages and/or civil money penalties as of May 1, 2025.

It's important to note that the 2024 Rule remains in effect for purposes of private litigation and nothing in this FAB changes the rights of employees or responsibilities of employers under the FLSA.

Employers should review the FAB and the additional documentation to understand how the current Administration will enforce independent contractor misclassification.

Should you have any questions, please reach out to your FortneyScott attorney.

Employment Law: What Hasn't Changed?

Thu, 01 May 2025 13:34:09 GMT

As employers navigate evolving legal, political, and cultural dynamics in the workplace, certain core obligations remain as critical as ever. This webinar will focus on three areas of the law that deserve renewed attention in 2025 and beyond:

Barrier Analysis: With many employers scaling back or eliminating formal DEI initiatives, barrier analysis has become an essential—and legally sound—tool to identify and prevent workplace discrimination. We’ll explore how employers can use barrier analyses to effectively meet compliance goals and mitigate legal risk.
Pay Practices: As state-level requirements continue to expand, pay practices remain central to legal compliance. We’ll break down what employers need to do now to stay ahead of audits, meet transparency mandates, and proactively address pay disparities.
Accommodations: Religious and disability-related accommodation requests are on the rise. We’ll discuss recent legal developments and best practices for managing accommodation requests consistently and lawfully.

Register for FortneyScott's Next Webinar on Wednesday, April 30th

Mon, 21 Apr 2025 21:29:28 GMT

Employment Law: What Hasn't Changed?

On Wednesday, April 30, 2025, from 12:00 to 1:00 p.m. ET, FortneyScott will be hosting a webinar, Employment Law: What Hasn't Changed? As employers navigate evolving legal, political, and cultural dynamics in the workplace, certain core obligations remain as critical as ever. This webinar will focus on three areas of the law that deserve renewed attention in 2025 and beyond:

Barrier Analysis: With many employers scaling back or eliminating formal DEI initiatives, barrier analysis has become an essential—and legally sound—tool to identify and prevent workplace discrimination. We’ll explore how employers can use barrier analyses to effectively meet compliance goals and mitigate legal risk.
Pay Practices: As state-level requirements continue to expand, pay practices remain central to legal compliance. We’ll break down what employers need to do now to stay ahead of audits, meet transparency mandates, and proactively address pay disparities.
Accommodations: Religious and disability-related accommodation requests are on the rise. We’ll discuss recent legal developments and best practices for managing accommodation requests consistently and lawfully.

Join FortneyScott attorneys for this practical, timely discussion designed to help HR professionals, in-house counsel, and business leaders navigate these challenging areas.

To register for this webinar, click here . For additional information, please visit FortneyScott’s websit e .

Trump Administration’s Focus on Higher Education

Tue, 25 Mar 2025 21:08:58 GMT

During this webinar, FortneyScott's experienced practitioners will:

Catalogue of the Administration’s activities focused on Higher Education;
Trace the trends across agencies;
Discuss expanded use of Title VI; and,
Provide practical guidance for all employers.

New Director Appointed to Transition OFCCP to New Mission

Tue, 25 Mar 2025 18:51:21 GMT

On March 24, 2025, the U.S. Department of Labor (DOL) announced Catherine Eschbach as the new Director of the Office of Federal Contract Compliance Programs (OFCCP). In an email to OFCCP staff, Director Eschbach announced that under her leadership, all reform options are on the table and “most of what OFCCP has been doing is out of step, if not flat out contradictory to our country’s laws.” Her email went further to outline “OFCCP’s transition to its new scope of mission”:

Verifying that federal contractors have wound down their affirmative action efforts 91 days after President Trump’s EO 14173 rescinded EO 11246.
Examining federal contractors’ prior submissions to determine whether there are any indications of discrimination and whether OFCCP should undertake additional investigations.
Advising the Secretary of Labor of measures to deter DEI as required by Section 4 of EO 14173.
Determining statutory authority for Section 503 and VEVRAA and whether they should be housed elsewhere in Labor Department.
“Rightsizing” the staff and geographic footprint of agency.

Federal contractors should pay particular attention to the last bullet above. The new Director indicates that OFCCP will review prior submissions from closed audits to review for illegal DEI. If you receive any communication from OFCCP, or other federal agencies, with regard to past submissions or requesting additional information from closed audits, please contact your FortneyScott attorney immediately

With this transition of enforcement for OFCCP, federal contractors need to take the necessary action and steps to ensure they understand and comply with the new obligations as outlined in EO 14173 and above. FortneyScott is assisting many of its clients in these matters. Please reach out to your FortneyScott attorney should you have any questions.

EEOC and DOJ Release Guidance on "Illegal DEI"

Thu, 20 Mar 2025 17:37:14 GMT

On March 19, the Department of Justice (DOJ) and Equal Employment Opportunity Commission (EEOC) released two technical assistance documents addressing “unlawful DEI,” a 1-page summary, What to Do if You Experience Discrimination Related to DEI at Work , and a longer question and answer (Q&A) document, What You Should Know About DEI-Related Discrimination at Work .

In the documents, the agencies remind employees and employers that Title VII prohibits employment discrimination based on protected characteristics, such as race and sex, and that any decisions motivated, in whole or in part, by a protected characteristic are unlawful. The EEOC press release reiterates that “[t]he widespread adoption of DEI, however, does not change longstanding legal prohibitions against the use of race, sex, and other protected characteristics in employment” and the accompanying DOJ press release notes that “[u]nder Title VII, DEI initiatives, policies, programs, or practices may be unlawful if they involve an employer or other covered entity taking an employment action motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic.” The EEOC’s technical assistance document also states that Title VII’s protections apply equally to all workers not just to minority groups. Finally, these official documents provide employees, who question their employers’ DEI practices, with instructions on how to file charges with the EEOC.

In the technical assistance document, the EEOC provides the following examples of DEI practices that could be considered to violate Title VII:

“Balancing” a workforce based on protected characteristics was provided as an example of unlawful conduct;
DEI training may give rise to a colorable hostile work environment claim if a reasonable person would consider it intimidating, hostile, or abusive;
Opposition to DEI training may be a protected activity if the employee believes that the training violates Title VII; and,
Employee resource groups (ERGs), or similar programs, may violate Title VII’s prohibition of segregating employees if they are not open to all.

Although the Supreme Court has not yet ruled on whether an “operational need” for diversity can justify voluntary affirmative action efforts under Title VII, the EEOC is taking the position that a company’s “diversity interest” is not a bona fide occupational qualification (BFOQ) justifying decisions based on protected characteristics.

Should you have any questions regarding these or other developments, please contact your FortneyScott attorney. For additional information, be sure to visit FortneyScott’s website and the new Resource Page on Compliance with Trump Administration Changes, including our prior Webinars and Podcasts .

Register for FortneyScott's Next Webinar on Tuesday, March 25

Mon, 17 Mar 2025 18:33:46 GMT

Trump Administration’s Focus on Higher Education

On Tuesday, March 25 from 12:00 noon to 1:00 pm ET, please join FortneyScott’s webinar addressing higher education’s new compliance challenges under the Trump Administration’s focus on diversity, equity and inclusion (DEI) and antisemitism. Please CLICK HERE to register for this free webinar.

President Donald J. Trump issued multiple Executive Orders impacting the Higher Education including DEI, Antisemitism, and grant-funding. In addition, both the Department of Education and Department of Justice have launched investigations into numerous institutions of higher education. Join David Fortney and Elizabeth Bradley as they:

Catalogue the Administration’s activities focused on Higher Education;
Trace the trends across agencies;
Discuss expanded use of Title VI; and,
Provide practical guidance for all employers.

Additionally, visit FortneyScott’s Resource Page for employers. This page includes links to recent Executive Orders, other Federal actions, and FortneyScott's webinars and podcasts . Finally, FortneyScott is scheduled to release another podcast this Friday on what's happening with the EEOC and NLRB, which can be found on our Resource Page once released, and here .

Important Alert: Rescission of More Executive Orders and Update on 14173

Sun, 16 Mar 2025 22:10:08 GMT

There were several important developments impacting federal contractors’ obligations on Friday, March 14. President Trump issued a new Executive Order eliminating federal contractor minimum wage, apprenticeship and Project Labor Agreement obligations imposed by President Biden’s Executive Orders. Additionally, an appellate court stayed the nationwide injunction on the new Certification of compliance with discrimination laws related to “illegal DEI,” which now permits the Certification obligations to be included in federal contracts.

The Rescinded Executive Orders

President Trump rescinded EO 14026, Increasing the Minimum Wage for Federal Contractors. This now rescinded EO applied to new or renewed federal contracts in 2022 and established an annual increase of the minimum wage for workers working on federal contracts with the minimum wage increasing to $17.75 beginning January 1, 2025. Effective immediately, federal contractors should use the rate provided in a Wage Determination, and will no longer be required to increase the hourly wage rate in order to meet the federal contractor minimum wage (this applies to both Service Contract Act and Davis-Bacon Act contracts).

With regard to Davis-Bacon covered contracts, the apprenticeship obligations also were ended, as EO 14119, Scaling and Expanding the Use of Registered Apprenticeships in Industries and the Federal Government and Promoting Labor-Management Forums was rescinded. This Biden EO directed federal agencies to prioritize federal contractors and grantees who participated in registered apprenticeship programs when making award and funding decisions. Despite this EO being rescinded, we still anticipate the Trump Administration and Congress are supportive of future apprenticeship programs based on the bi-partisan support for these programs during the Secretary of Labor's confirmation hearings.

Another Davis-Bacon related Executive Order rescinded focused on Project Labor Agreements (PLAs) -- EO 14126, Investing in America and Investing in American Workers, which favored companies that participated in registered apprenticeship programs and offered equitable compensation practices. Under the now rescinded EO, federal agencies were to favor grant applicants that have PLAs or support voluntary union recognition. Additionally, if applicants offered benefits such as childcare and paid leave, then that would give the applicant greater weight when being considered for funding.

The Reinstitution of Compliance Certification

The U.S. Court of Appeals for the Fourth Circuit granted the government's request to stay the nationwide preliminary injunction issued by the Maryland district court on March 6 relating to obligations of Federal contractors and grant recipients to certify compliance with the new prohibition on “illegal DEI.” We previously reported on the nationwide injunction, here . As a result of the Fourth Circuit stay, federal agencies now can renew efforts to require Federal contractors and grant recipients to certify compliance, subject to potential liabilities under the False Claims Act. In the future, the Fourth Circuit will address whether the certification obligations are lawful. In light of this ruling, it is important that federal contractors and grantees continue their efforts in ensuring there is no "illegal DEI."

Filter Out the Noise: What Employers Need to Know About the Trump Administration Changes

Thu, 13 Mar 2025 13:42:06 GMT

In this content-packed webinar, our experienced practitioners address:

The latest developments relating to Executive Order 14173’s new restrictions on “illegal Diversity, Equity and Inclusion (DEI),” and updates on related judicial developments;
Practical lessons learned in evaluating whether DEI programs comply with EO 14173;
The EEOC’s focus on protecting Americans from discrimination and investigating DEI practices at law firms; and,
New initiatives by federal agencies to investigate antisemitism at higher ed institutions.

Register for FortneyScott's Next Webinar on Wednesday, March 12

Fri, 07 Mar 2025 16:03:25 GMT

Filter Out the Noise –

What Employers Need to Know About the Trump Administration Changes

Please join FortneyScott’s next complimentary webinar in our ongoing series of webinars and podcasts addressing the Trump Administration changes and what employers need to know. The webinar is on Wednesday, March 12 from 12 noon to 1:00 PM (Eastern), and you can Register Here .

President Trump has been in office less than 50 days, and America and the world are grappling with the resulting sweeping changes, a growing number of judicial injunctions and decisions, and varied responses by federal agencies. Substantial changes to the employment landscape for both federal contractors and private employers have occurred, and more developments are unfolding every day. FortneyScott attorneys are closely involved in counseling and advising employers on how to respond to these unprecedented developments.

Join FortneyScott’s next timely, content-packed webinar as our experienced practitioners address:

The latest developments relating to Executive Order 14173’s new restrictions on “illegal Diversity, Equity and Inclusion (DEI),” and updates on related judicial developments;
Practical lessons learned in evaluating whether DEI programs comply with EO 14173;
The EEOC’s focus on protecting Americans from discrimination and investigating DEI practices at law firms; and,
New initiatives by federal agencies to investigate antisemitism at higher ed institutions.

To register for this webinar, click here . For additional information, be sure to visit FortneyScott’s website and the new Resource Page on Compliance with Trump Administration Changes , including our prior Webinars and Podcasts .

EEOC Under The Trump Administration: What Employers Need to Know

Wed, 26 Feb 2025 18:35:28 GMT

In this webinar, FortneyScott’s highly experienced attorneys, including David Fortney, Leslie Silverman (former Vice Chair of EEOC), and Nita Beecher, will discuss the practical implications for employers due to the latest changes at EEOC, including:

Impact of President Trump’s unprecedented personnel actions resulting in a lack of a quorum;
Response of Acting Chair Andrea Lucas to President Trump’s Executive Orders;
Likely focus of the EEOC under the Trump Administration; and,
Impact on EEOC of the Trump Administration’s efforts to secure reversal of the Supreme Court’s seminal Humphrey’s Estate decision.

Breaking News: Parts of EO 14173 Enjoined

Sat, 22 Feb 2025 02:24:45 GMT

On February 21, Judge Adam B. Abelson in the District Court for Maryland issued a preliminary injunction enjoining defendants (other than the President) from acting under parts of EO 14173. Specifically, the defendants are ordered not to:

“pause, freeze, impede, block, cancel, or terminate any awards, contracts or obligations . . . or change the terms of any Current Obligation,”
make federal contractors certify that they do not engage in DEI practices that violate anti-discrimination laws, or
bring any enforcement actions (including FCA claims) based on the EO’s certification requirement.

The government is still permitted to make lists of organizations to investigate.

We will keep you apprised of any further developments.

Register for FortneyScott's Next Webinar

Thu, 20 Feb 2025 18:09:15 GMT

There have been significant changes at the Equal Employment Opportunity Commission (EEOC) during President Trump’s first four weeks in office, as part of the widespread changes at federal agencies. To learn the latest EEOC developments, join FortneyScott’s next webinar on February 25, from 12 noon to 1:00pm (Eastern) as the latest in FortneyScott’s ongoing series of webinar s and podcasts that provide employers with the latest information on the key Trump Administration changes. Register here .

In this webinar , FortneyScott’s highly experienced attorneys, including David Fortney, Leslie Silverman (former Vice Chair of EEOC), and Nita Beecher, will discuss the practical implications for employers due to the latest changes at EEOC, including:

Impact of President Trump’s unprecedented personnel actions resulting in a lack of a quorum;

Response of Acting Chair Andrea Lucas to President Trump’s Executive Orders;

Likely focus of the EEOC under the Trump Administration; and,

Impact on EEOC of the Trump Administration’s efforts to secure reversal of the Supreme Court’s seminal Humphrey’s Estate decision.

Click here to register for this important and timely free webinar on Tuesday, February 25, 2025, from 12 noon to 1:00pm (Eastern).

The False Claims Act and "Illegal DEI": What Federal Contractors Need to Know

Tue, 18 Feb 2025 01:26:37 GMT

Join Nita Beecher, Sarah Mugmon, and Adriana Joens to discuss the following questions:

• Are federal contractors at increased risk for FCA liability under the new EO?

• What does it mean to certify compliance with Federal anti-discrimination laws as required under the new EO?

• What guidance has been issued to clarify the meaning of “illegal DEI” for federal contractors?

Complaint Filed in D.C. District Court Challenging DOGE’s Access to Department of Labor Systems

Fri, 07 Feb 2025 02:53:58 GMT

On February 5, 2025, six Plaintiffs (the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO); The American Federation of Government Employees (AFGE); The American Federation of State, County & Municipal Employees, AFL-CIO (AFSCME); Service Employees International Union, AFL-CIO (SEIU); The Communications Workers of America, AFL-CIO (CWA); and Economic Policy Institute (EPI) filed a complaint in the U.S. District Court for the District of Columbia against the Department of Labor (DOL), Labor’s Acting Secretary Vince Micone, the U.S. DOGE Service (USDS), and the U.S. DOGE Service Temporary Organization. The complaint seeks declaratory and injunctive relief to prevent the “Department of Government Efficiency” (DOGE) from accessing DOL’s information systems and the sensitive data therein concerning both federal employees and private citizens.

The complaint explains how DOGE, sanctioned only by Executive Order 14158 (Establishing the President’s Department of Government Efficiency), functions as a network of DOGE-related offices, teams, and roles overseen by Elon Musk within the Executive Office of the President and implanted within each federal agency. The complaint describes DOGE’s pattern as overtaking federal agencies without statutory authority, seizing their information systems, threatening career civil servants’ resistance with adverse employment action, and unilaterally dismantling or restructuring the agencies.

As DOL is DOGE’s next posited target, plaintiffs seek to prevent DOGE from unlawfully accessing DOL’s sensitive information systems, including such systems maintained and managed by the Federal Employees’ Compensation Act Claims Administration, the Wage and Hour Division, the Occupational Safety and Health Administration, and the Bureau of Labor Statistics. These systems include medical information, financial information, and personnel information, as well as the identities of anonymous whistleblowers.

Plaintiffs allege that DOGE’s actions are unconstitutional because DOGE lacks lawful authority to either direct agency actions or access statutorily restricted government systems. Rather, DOGE’s function is limited to advising and assisting the President.

Plaintiff’s claims mostly arise under the Administrative Procedure Act, which protects individuals harmed by “arbitrary and capricious” final agency actions and provides court intervention when such harm occurs. Specifically, Plaintiffs accuse DOL of unlawfully threatening federal employees with termination, violating information privacy statutes by instructing and disclosing confidential and private records, creating new rules without meeting “notice and comment” requirements, and abusing its discretion.

As relief, Plaintiffs asked the Court to declare DOGE’s access to DOL’s systems as unlawful. Plaintiffs also request a Court order forbidding DOL from granting DOGE access to DOL’s systems, taking adverse personnel action against employees who refuse providing DOGE with unlawful access, and providing non-public DOL information to any person with a conflict of interest.

This is the first complaint filed challenging DOGE’s access to sensitive government information systems.

Complaint Challenging EO 14173 Filed in Maryland U.S. District Court

Fri, 07 Feb 2025 02:44:56 GMT

On February 3, 2025, four plaintiffs (the National Association of Diverse Officers in Higher Education, the American Association of University Professors, the Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore, Maryland) jointly filed a complaint challenging EO 14151 (“Ending Radical Government DEI Programs and Preferencing”) and EO 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”).

The complaint does not challenge the revocation of 11246 yet addresses the legality of §§3-4 of EO 14173. The complaint alleges that EO 14173 is unconstitutional on various grounds and seeks a court order overturning the EO.

With respect to EO 14173, the complaint alleges that §3 violates the Free Speech Clause of the First Amendment. By threatening FCA enforcement against federal contractors and grantees who certify that they do not operate undefined “programs promoting DEI,” plaintiffs allege that §3 chills the expression of or participation in diversity, equity, inclusion, and accessibility initiatives. Plaintiffs also alleges that §3 violates separation of powers because it empowers the executive branch, rather than Congress, to control federal funding based on whether contractors or grantees operate “programs promoting DEI.”

As for §4 of EO 14173, the complaint alleges that it likewise violates the First Amendment’s Free Speech Clause by threatening civil investigation and “deterrence” against anyone who expresses support for undefined “illegal DEI.” Furthermore, because §4 is vague with respect to terms (e.g., “illegal DEIA and DEIA policies”) and the criteria for selecting which organizations are subject to investigation or enforcement actions, plaintiffs also allege §4 violates the Fifth Amendment’s Due Process Clause.

We anticipate additional plaintiffs filing similar lawsuits related to EO 14173 are forthcoming.

FortneyScott Webinar - Managing DEI Under Trump's Executive Orders

Thu, 06 Feb 2025 01:28:10 GMT

Join David Fortney, Elizabeth Bradley, and Nita Beecher as they discuss the practical implications of how employers respond to the new prohibitions on “illegal DEI,” including:

-How will the new Executive Order on DEI impact employers’ DEI efforts?

-What changes employers need to make to ensure their DEI efforts are not considered “illegal”?

-What data collection and analytics should be made going forward?

What Employers Need to Know about Trump's New EO, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity”

Thu, 30 Jan 2025 13:34:03 GMT

Yesterday, Fortney & Scott launched the first in a series of webinars to provide employers with valuable information about President Trump’s actions that significantly impact the workplace. The January 28, 2025 webinar —led by David Fortney and Elizabeth Bradley—focused on Trump’s new EO, “ Ending Illegal Discrimination and Restoring Merit-Based Opportunity ,” which revoked EO 11246, added new obligations for federal contractors, and launched a strategic enforcement initiative addressing “illegal discrimination and preferences, including DEI."

For each of the EO provisions, FortneyScott’s webinar provides succinct overview of the changes and practical compliance step to assist employers. Additionally, for a shorter summation of key points FortneyScott's DC Insider Podcast is available covering this same topic.

FortneyScott will continue to monitor the litigation and provide updates as appropriate. Should you have any questions in the meantime, please do not hesitate to reach out to your FortneyScott attorney.

FortneyScott Webinar - Rescission of EO 11246

Tue, 28 Jan 2025 01:29:15 GMT

FortneyScott presents one of a series of webinars regarding Trump's Executives Orders, specifically, the revocation of EO 11246. Presenters David Fortney and Elizabeth Bradley discuss what employers need to know in navigating through these significant workforce changes.

Acting Secretary of Labor Orders OFCCP to Cease and Desist All Enforcement Under EO 11246

Sat, 25 Jan 2025 05:57:41 GMT

In an anticipated move, the Department of Labor halted enforcement of anti-discrimination laws and affirmative action programs (AAPs) for federal contractors, following an Order from the Acting Secretary of Labor, Vincent Micone. This Order, issued late Friday, January 24, also instructed the Office of Federal Contract Compliance Programs (OFCCP) to "immediately cease and desist" activities under Executive Order 11246, which was rescinded by President Trump on January 21. The DOL’s Order halts all ongoing audits, conciliation agreements, and cases premised on EO 11246.

Notably, enforcement of Section 503 of the Rehabilitation Act (503) and the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) is held in abeyance pending further guidance. Importantly, the Section 503 and VEVRAA statutory requirements were not rescinded in President Trump’s EO revoking EO 11246.

We are actively monitoring this and will continue to provide updates in the future. Should you have any questions in the meantime, please contact your FortneyScott attorney .

David Fortney quoted in CNN article addressing President Trump's order to rescind Executive Order 11246

Thu, 23 Jan 2025 19:57:07 GMT

CNN reached out to David Fortney to discuss the revocation of Executive Order 11246

Rescission of EO 11246

Wed, 22 Jan 2025 17:06:51 GMT

Late yesterday, January 21, 2025, President Trump issued an Executive Order, Ending Illegal Discrimination and Restoring Merit-Based Opportunity , that revoked Executive Order 11246 and launched an enforcement scheme against “illegal DEI.” FortneyScott is hosting a webinar on January 28 to address these developments. To register, please click here .

Overview of the New EO Changes. EO 11246 was revoked effective immediately. As a result, federal contractors are no longer required to comply with the regulations enacted under EO 11246, and all compliance evaluation activity related to compliance with these obligations should cease. Executive Order Federal contractors may, during the next 90 days (until April 21, 2025), continue to comply with the prior EO 11246 regulatory scheme, presumably to allow contractors time to assess their current processes and procedures and to undertake necessary changes.

In addition, the new EO announced that forthcoming contract terms that will require federal contractors and grantees to certify that they do “not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.”

Finally, to “encourage” all private sector employers “to end illegal DEI,” Trump’s Executive Order directs the head of all agencies to take specific steps to develop a strategic enforcement plan against “illegal DEI.” Among the actions required, each agency must identify the companies, nonprofits, educational institutions, and other entities which are the “most egregious and discriminatory DEI practitioners in each sector of concern.”

Next Steps for Employers. All federal contractors should immediately review their OFCCP compliance practices and take appropriate steps to modify their practices to comply with this Executive Order on or before April 21, 2025.

All private sector employers should immediately review their employment-related programs and policies, including DEI programs, to ensure that they are in compliance with Title VII of the Civil Rights Act and the Age Discrimination in Employment Act and that there are no provisions that may be deemed illegal discrimination or “illegal DEI.”

Register for Webinar for Additional Information. For a detailed discussion of Executive Order, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, FortneyScott is hosting a webinar on Tuesday, January 28 at 12:00 noon ET. To register, please click here .

Should you have any questions in the meantime, please do not hesitate to reach out to your FortneyScott attorney. FortneyScott will continue to provide information through podcasts and additional webinars as more information is provided.

Maryland's New Pay Transparency Law

Mon, 09 Dec 2024 10:59:00 GMT

Effective October 1, 2024, Maryland law ( S.B. 525 ) requires employers to disclose wage ranges for posted positions. Employers with operations in Maryland, with employees who perform work in Maryland, and/or who permit remote work in Maryland must comply with the new pay transparency law.

Posted Salary Ranges and Benefits Descriptions on Job Postings

In the first publication for an open position and prior to any interviews or offers, employers must disclose in both internal and public postings for either part-time or full-time positions the specific wage or salary range, benefits, and any other compensation information. The law requires the minimum and maximum rate or salary for a position set in good faith, basing the range on:

Any applicable pay scale;
Previously set minimum and maximum salary or hourly rates for the position;
The minimum and maximum salary or hourly rate of any individual holding a comparable position at the time of hiring; or
The budgeted amount for the position.

Maryland's law does not explicitly require an employer to post or advertise opportunities for internal promotions or transfers. Employers, however, must provide the wage range for an internal promotion or transfer before a discussion of compensation is held with the candidate or upon a candidate's request.

Employers cannot refuse to interview, hire, or employ an applicant who does not provide wage history or who requests the wage range from the employer, nor can employers retaliate against, refuse to promote, or transfer employees who refuse to disclose their wage history or who request the wage range for a position.

Employers must keep a record of compliance for each job posting for at least three years after the position is filled, or, if the position is not filled, three years after the position was posted initially.

Although the law does not create a private right of action, Maryland’s Department of Labor and Industry (“MD DOLI”) is authorized to impose civil penalties onto employers in violation of the new law.

Challenges for Employers

Compared to 13 other jurisdictions with pay transparency laws in effect currently, Maryland’s is among the broadest. There is no threshold number of employees required for the law to apply, and employers who advertise for positions that can be performed anywhere must comply with Maryland’s law.

MD DOLI has yet to determine how much physical work in Maryland triggers coverage, but it has stated that that positions requiring occasional work or occasional communication with employees based in Maryland are not covered. Until the courts provide guidance on this new law, it is reasonable to presume that it applies to all workers who attend more than an occasional meeting or conference in Maryland.

FortneyScott will continue to monitor the litigation and provide updates as appropriate. Clients with questions can reach out to their FortneyScott attorney or email info@fortneyscott.com .

OFCCP Issues 2024 CSAL Listing

Wed, 20 Nov 2024 16:21:37 GMT

On Wednesday, November 20, 2024, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued the Fiscal Year 2025 Corporate Scheduling Announcement List (CSAL) - which is a list providing notice of 2,000 compliance evaluations, commonly referred to audits, for supply and service federal contractors.

The scheduling letters commencing OFCCP audits can be sent to contractors effective immediately. Upon receipt of a scheduling letter, federal contractors have only 30 days to submit responsive data and documents.

Those federal contractors and subcontractors that are on the newest CSAL should promptly assess whether they are audit ready. Advanced preparations are important because OFCCP will only grant an extension of the 30-day submission deadline in limited, “extraordinary circumstances.”

The FY2025 CSAL lists federal contractors' establishments, Functional AAPs (FAAPs) or Corporate Management Compliance Evaluations (CMCEs) that are to be audited. Any contractor included in the new CSAL initially should confirm that they are properly listed in the CSAL. Following that confirmation, contractors should begin their preparations for the upcoming audit, which typically includes completing their 2025 AAPs as soon as possible.

Reach out to any FortneyScott attorney for assistance in preparing for the upcoming compliance evaluations, or contact us at info@fortneyscott.com for additional information.

2024 Employment Law Alliance (ELA) Global Labor & Law Conference

Wed, 18 Sep 2024 19:14:40 GMT

On September 13th, Fortney & Scott’s co-founder David Fortney moderated an international panel on Trends in Unionization and Collective Bargaining at the Annual 2024 Employment Law Alliance (ELA) Global Labor and Law Conference in Mexico City with 250 attendees.

The panel discussed the trends and shared insights on how unions are changing their strategies for organizing workers and how they’re gaining momentum globally, and addressed the trends in the Americas, including Mexico, and how the USMCA labor provisions are operating. There also was a lively Q&A segment with the audience.

The panel included (in photo from left to right) Alejandro Martínez Arazia (Union Leadership, SNAC), Alan Wild (HR Policy Global Advisor), Gabriela Márquez-Conde (International Labour Organization), Juan Sesatty (Director Labor Relations, APTV), and David Fortney (FortneyScott).

Upcoming Webinar: The End of the Administrative State? Elimination of Chevron Deference and Its Impact on US Employers

Fri, 23 Aug 2024 23:04:36 GMT

On Wednesday, August 28th, 2024 at 3:00 PM Eastern, David Fortney will be a speaker for the Employment Law Alliance’s webinar, The End of the Administrative State? Elimination of Chevron Deference and Its Impact on US Employers.

Stay ahead of the curve in understanding how recent Supreme Court decisions will reshape the labor and employment regulatory environment. In a trio of decisions at the end of its term, Loper Bright v. Raimondo, Jarkesy v. SEC, and Corner Post v. Federal Reserve, the Supreme Court altered the balance between the three branches of government and changed the standards for judicial review and enforcement of regulations, and how the executive agencies can implement and enforce their regulations. Don't miss this opportunity for a lively discussion focusing on how the Court’s ruling will affect the main enforcement agencies with a focus on the impacts to labor and employment law.

Joining David is Moderator Laura Pasqualone (Lewis Roca LLP), Carmine G. Iaccarino (Sturgill, Turner, Barker & Moloney, PLLC), Lauren Russell (Potter Anderson & Corroon LLP), and Bill Wahoff (Steptoe & Johnson PLLC).

Click here to register.

Court Blocks FTC Noncompete Ban

Wed, 21 Aug 2024 20:22:37 GMT

The pending regulations issued by the Federal Trade Commission (“FTC” or the “Commission”) that largely banned the use of noncompete restrictions have been enjoined on a nationwide basis, and the regulations will not go into effect on September 4 ^th as scheduled.

On August 20, 2024, U.S. District Court Judge Ada Brown of the Northern District of Texas in Ryan, LLC v. Federal Trade Commission blocked the Federal Trade Commission’s near complete ban of noncompete agreements. The FTC issued the final rule banning most noncompetes on April 23, 2024. The FTC is expected to appeal the decision to the Fifth Circuit Court of Appeals.

What’s Next for Employers

With the blocking of the FTC rule, employers can enforce noncompetes in effect and can require employees to enter into noncompete agreements as long as those noncompetes are permissible under relevant state law. Employers who had planned to send notices to current and former employees covered by noncompetes as required by the FTC rule no longer need to do so.

The final disposition of the FTC’s noncompete ban is uncertain, though it is likely never to go into effect. The FTC has indicated willingness to appeal the ruling but any appeal would go to the more conservative U.S. Court of Appeals for the Fifth Circuit and then possibly to the U.S. Supreme Court, which has taken a narrower view of agency rulemaking authority in recent years. At present the noncompete landscape will continue to be governed by the patchwork of state laws.

Additional Information about the FTC Noncompete Ban

Under the final rule most existing noncompete agreements would be invalid as of the September 4th effective date of the regulations and nearly all new noncompete agreements would be prohibited. The Commission cited its authority under Section 5 of the Federal Trade Act to prevent anti-competitive behavior as the legal basis for the regulation. There were some legal carve outs to the ban, for example noncompetes were permissible pursuant to the sale of a business and existing noncompete agreements for narrowly defined “senior executives” remained enforceable. One of the more burdensome aspects of the final rule for employers was the requirement that they provide notices to current and former workers informing them that their noncompetes were no longer legally enforceable after the effective date of the regulations.

Businesses Sue to Block Ban

There was significant opposition from the business community to the noncompete ban and three lawsuits, including this one before Judge Brown, were filed by groups across the country seeking to block the regulations before they went into effect. On August 15 ^th , Judge Timothy Corrigan of the U.S. District Court for the Middle District of Florida entered a preliminary injunction of the regulations in the matter Properties of the Villages, Inc. v. Federal Trade Commission , though the injunction only applied to the plaintiff in the matter. Conversely, U.S. District Court Judge Kelley B. Hodge of the U.S. District Court for the Eastern District of Pennsylvania declined to issue an injunction of the final rule in July, finding that the litigant in ATS Tree Servs. LLC v. FTC “failed to establish a reasonable likelihood that it will succeed on the merits of its claims that the FTC lacks substantive rulemaking authority under its enabling statute, that the FTC exceeded its authority, and that Congress unconstitutionally delegated legislative power to the FTC.”

Judge Brown Blocks FTC Rule

The legal challenge to the noncompete rule before Judge Brown was brought by the U.S. Chamber of Commerce, the tax firm Ryan LLC and others. The complaint alleged that the FTC’s regulation was in excess of the FTC’s statutory authority, an unconstitutional delegation of authority to the FTC, and arbitrary and capricious, among other claims. Judge Brown preliminarily blocked the effective date of her ruling while the parties filed briefs but indicated she would rule prior to the September 4 ^th effective date.

In the opinion issued on August 20 ^th , Judge Brown struck down the noncompete ban on two grounds. First, she found that the FTC lacked the statutory authority under the FTC Act to issue a substantive regulation preventing anti-competitive behavior under the provision cited as the basis for the rule. Second, she found the final rule was arbitrary and capricious under the Administrative Procedures Act (“APA”) because “it is unreasonably overbroad without a reasonable explanation . . . . [and] imposes a one-size-fits-all approach with no end date, which fails to establish a rational connection between the facts found and the choice made.” Judge Brown also determined that the final rule should be set aside as arbitrary and capricious under the APA because the Commission had failed to consider reasonable alternatives to a near complete ban.

FortneyScott will continue to monitor the litigation and provide updates as appropriate. Clients with questions can reach out to their FortneyScott attorney or email info@fortneyscott.com .

Texas District Court Judge Grants Nationwide Injunction on Three Provisions of DOL's New DBA Regulations

Wed, 26 Jun 2024 17:24:40 GMT

A federal district court has issued a nationwide injunction preventing the U.S. Department of Labor from enforcing three provisions of the recently issued Davis-Bacon and Related Acts (DBA) regulations governing the prevailing wages and benefits for federally funded construction contracts. Further litigation and an appeal by DOL is expected.

Here are the details. The federal court in the Northern District of Texas granted a nationwide preliminary injunction on June 24 enjoining DOL from implementing or enforcing the DBA regulatory provisions relating to (1) contracts that do not include DBA provisions, (2) off-site material suppliers (including fabricators), and (3) truck drivers for suppliers. Associated General Contractors of America, et al v. U.S. Department of Labor, Case No. 5:23-CV-0272-C (N.D. Texas, June 24, 2024).

In reaching its conclusions, the Court stated that the statute explicitly provides that contracting agencies and officers are required to include the DBA provision and wage determination in the contract. The Court rejected DOL’s arguments that based on the operation-of-law provision DOL can impose DBA obligations. The Court ruled that the DBA contract provision and applicable WDs must be included in order for it to apply.

In rejecting the DBA regulations expansion to include material suppliers, the Court ruled that DOL ignored the statutory language of the DBA materials suppliers' exception.

Finally, in enjoining the expansive trucking provision included in the DBA regulations, the Court focused on the statutory language in the DBA, stating that "[u]nder its terms, DBA applies only to mechanics and laborers employed directly on the site of the work." The Court noted that expanding the DBA to apply to trucking "impermissibly conflicts" with the DBA.

The Court also noted that DOL fell short in meeting its regulatory obligations to justify its expansive scoping of the DBA. The Court stated that “…DOL should have estimated the compliance costs of expanding DBA covered to new industries, noting that the proposed rule [impermissibly] expands coverage to prefabrication companies, material suppliers, and truck drivers, professional surveyors, and additional small businesses." The Court’s reasoning provides additional bases for challenging the DOL’s expansion of the DBA to cover jobs in these sectors.

Upcoming Webinar: AI and the World of Work - The Challenge of Boundless Capability

Tue, 11 Jun 2024 14:30:19 GMT

On Wednesday, June 19, 2024 at 4:00 PM Eastern, David Fortney will be a panelist for the Employment Law Alliance's webinar, AI and the World of Work: The Challenge of Boundless Capability .

The discussion will begin with an overview of AI, distinguishing between automation, machine learning, and generative AI. Then it will branch out to address legislation and regulations, how AI plays into the business decision-making processes, and the issues of privacy, confidentiality, trademark and licensing. The panel will review the ethical and legal considerations for employers and the global approach to AI.

Joining David is Moderator Anna Elento-Sneed (ES&A, Inc.), Constance H. Lau (Hawaiian Electric Industries, Inc.), and Dr. Katie Szilagyi (University of Manitoba).

Click here to register.

New Pay Transparency Laws Soon to Go into Effect in the District of Columbia and Maryland

Wed, 05 Jun 2024 20:20:16 GMT

Across the country many states are passing wage transparency laws that require the disclosure of wage or salary ranges in job postings. The District of Columbia and Maryland are no exception to the trend.

On January 12, 2024, District of Columbia Mayor Muriel Bowser signed into law the Wage Transparency Omnibus Amendment Act of 2023 ( B25-0194 ), which will take effect on June 30, 2024 . Similarly, the Maryland General Assembly passed an amendment ( SB 525 ) to its Equal Pay for Equal Work statute that was signed by Governor Moore in April and will take effect on October 1, 2024 . Both laws mandate inclusion of wage/salary information in job postings along with other requirements. Employers should begin efforts to comply with these laws immediately to avoid last-minute challenges.

Below are key features of both laws.

Key features of the District of Columbia law include:

Scope. Applies to all employers with at least one employee in the District of Columbia.
Job Postings. Requires employers to “[p]rovide the minimum and maximum projected salary or hourly pay in all job listings and position descriptions advertised . . . . that the employer in good faith believes at the time of the posting it would pay for the advertised job, promotion, or transfer opportunity.”
Wage History. Prohibits employers from inquiring about a prospective employee’s wage history or from screening employees based on wage history. Employers are also prohibited from seeking that information from a prior employer.
Healthcare Benefits. Requires employers to provide information about any healthcare benefits before interviewing applicants.
Notice. Requires employers to post a notice informing employees of their rights under the Act in a “conspicuous place in at least one location where employees congregate.”
Enforcement. Authorizes the mayor to assess a civil fine of $1,000 for the first violation, $5,000 for the second violation, and $20,000 for each subsequent violation. Authorizes the D.C. Attorney General to bring a civil action for attorney’s fees and costs and “[s]tatutory penalties equal to any administrative penalties provided by law.” There is no private right of action.

Key features of the Maryland law include:

Scope. Applies to positions performed “at least in part” in Maryland. This includes postings by employers and any third parties recruiting applicants on the employer’s behalf.
Job Postings. Requires employers to “disclose in each public or internal posting for each position the wage range and general description of benefits and any other compensation offered for the position . . . .” The wage range must be set “in good faith.”
Optional Form. Requires the Maryland Commissioner of Labor and Industry to make an optional form available for employers to adopt to comply with the wage/salary range posting obligations.
Recordkeeping. Requires employers to keep records of their compliance with the posting obligations for three years after the position is filled or if not filled, three years after the position was initially posted.
Enforcement. Authorizes the Maryland Commissioner of Labor and Industry to “issue a letter to the employer compelling compliance” for the first violation, a fine of up to $300 for the second violation, and a fine of up to $600 for each subsequent violation. Violations are based on each employee and applicant who does not receive the required information, not on the overall posting. There is no private right of action.

FortneyScott will continue to monitor these developments and provide updates as appropriate. Clients with questions can reach out to their FortneyScott attorney.

Upcoming Webinar: Minors as a Major Issue - Employers Face Growing Child Labor Compliance Challenges

Thu, 30 May 2024 22:19:34 GMT

One of the U.S. Department of Labor’s key areas of enforcement is child labor. There has been an 88% increase in child labor violations across DOL’s audits in the last five years. These developments have caught many unsuspecting employers by surprise, including in many industries that have not historically faced child labor violations.

In this webinar, Institute Co-Chair David Fortney and guest speaker Savanna Shuntich will cover:

the basics of the FLSA’s child labor restrictions;
how violations typically occur;
the rapidly evolving state laws; and
the explosion of DOL child labor audits and compliance challenges.

The webinar will also discuss how employers in a broad range of industries must exercise greater vigilance in employee selections, and greater oversight of the integrity of their supply chains in response to the child labor crisis that America is facing, including widespread child trafficking.

FTC Approves Non-Compete Ban

Wed, 24 Apr 2024 21:27:18 GMT

On April 23, 2024, the Federal Trade Commission voted , 3 to 2, to ban nearly all non-compete agreements. The ban is scheduled to become effective 120 days after it is published in the Federal Register (as of the date of this alert, it has not yet been published).

The new rule is already subject to litigation from various business groups, including the U.S. Chamber of Commerce , claiming the FTC does not have the authority to issue the rule. One argument is that the Constitution empowers Congress, not the Executive, to regulate commerce. Further, objections are being raised challenging the Commission’s right to supplant the States in an area – contracts – where state law has traditionally prevailed.

Highlights of Rule

The final rule bans use of nearly all non-competes for any worker. The definition of a “non-compete” includes “a term or condition of employment that prohibits a worker from, penalizes a worker for, or functions to prevent a worker from” seeking or accepting work in the U.S. with a different person or operating a business after the conclusion of the current employment. The broad definition of “non-compete” includes not just non-compete agreements or non-compete clauses in other agreements, but also any terms in handbooks or in workplace policies “whether written or oral.”

The rule’s definition of “worker” is also broad, including any “natural person who works or previously worked, whether paid or unpaid . . . including, but not limited to, whether the worker is an employee, independent contractor, extern, intern, volunteer, apprentice, or sole proprietor who provides a service . . . .”

For any worker, the rule states that it is an unfair method of competition for a person to enter into or attempt to enter into a non-compete agreement; enforce or attempt to enforce such non-compete agreement or to represent that the worker is subject to a non-compete agreement.

A principal exception to the total ban is for senior executives who entered into non-competes prior to the effective date of the final rule. Senior executives are those workers who are in a policy-making position and received compensation of at least $151,164 in the preceding year.

A “policy-making position” is limited to a business entity’s president, chief executive officer or equivalent, any other officer or person who has policy-making authority. “Policy-making authority” includes “final authority to make policy decisions that control significant aspects of a business entity or common enterprise” but does not include having final authority for policy decision for a subsidiary or affiliate of a common enterprise. The precise application of these definitions is certain to be litigated.

For existing non-competes, the entity that entered into the non-compete with a worker must provide a “clear and conspicuous” notice to the worker by the effective date that the non-compete clause will not and cannot legally be enforced against the worker. The notice must identify the person who entered the existing non-compete with the worker, and be delivered by hand, by mail, by email or text message to the worker. The only exception is if the entity that entered the non-compete has no record of where to contact the worker. The FTC has offered a proposed notice.

The other exceptions to the use of non-competes are as follows: 1) pursuant to a bona fide sale of a business, 2) where a cause of action is related to a non-compete accrued prior to the effective date, or 3) when a person has a good faith belief that this rule is inapplicable.

As to state laws, the final rule supersedes those laws to extent they would permit conduct that is an unfair method of competition or conflict with the notice requirement.

Next Steps for Employers

In light of the pending judicial challenges to the rule, employers may choose to wait until a final outcome is reached before responding to the rule. However, prudent employers may wish to identify to whom notices would have to be sent if and when a final rule including that provision is approved.

FortneyScott will continue to monitor these developments and provide updates as appropriate. Clients with questions can reach out to their FortneyScott attorney.

New Overtime Regulations Released by Department of Labor

Tue, 23 Apr 2024 21:15:44 GMT

On Tuesday, April 23, 2024, the Department of Labor (DOL) released its long-delayed final rule, Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees , increasing the salary threshold for overtime exemptions. The 383-page regulation, which prompted 33,000 comments, raises the salary thresholds from the proposed draft. The final rule has not yet been published in the Federal Register.

New Overtime Thresholds

Under the final rule, for most employees exempt from overtime under Fair Labor Standards Act (FLSA), on July 1, 2024, the threshold for exemption under the salaried basis will become $844 per week, or the equivalent of an annual salary of $43,888 . Then, on January 1, 2025, the threshold will be increased further to $1,128, or the equivalent of $58,656 based on the Department’s new computational methodology. The current salaried basis threshold under the Trump Administration’s revision to the FLSA is $684 a week, or $35,568 a year. The new rule also includes an “indexing” feature that will automatically raise the overtime threshold every three years on July 1.

For highly compensated workers, the rule raises the salary basis threshold to $132,964 in July and $151,164 in January 2025, up from the current rate of $107,432.

In most other respects, the new regulation retains the current duties for bona fide executive, administrative, and professional employees to overtime requirements. The main change from the proposed regulation is that the new salary thresholds will not extend to most U.S. territories.

Impact on Employers

The Department estimates that millions of workers will benefit from the new standard by 2025. Opponents of the regulation claim that thousands of small and medium-sized businesses, educational institutions, and cultural entities will be forced to cut staff and services, drastically raise prices, or simply go out to business.

Judicial Challenges

In 2017, the Obama Administration launched an effort to significantly increase the overtime thresholds in a regulation that is similar to the new rule in nearly every respect. That regulation was summarily rejected by a U.S. District Court in Texas. New challenges to the new rule have already been promised and will likely be filed in the same jurisdiction. In addition, litigation to repeal the Trump-era overtime regulation continue and may further complicate the implementation of the DOL’s new overtime rule.

Issued April 23, 2024

DOL Released Final Overtime Rules Effective July 1, 2024

Tue, 23 Apr 2024 17:30:58 GMT

This just in: DOL released its final OT Rules which will become effective July 1, 2024. It has not yet been published in the Federal Register, but stay tuned for updates! https://bit.ly/449DuKR

Issued April 23, 2024

Final PWFA Regulations

Thu, 18 Apr 2024 21:34:39 GMT

The EEOC’s final Pregnant Workers Fairness Act (“PWFA”) regulations were republished in the Federal Register on April 19 and will become effective on June 18th. The final regulations and guidance clarified and, in some cases, expanded on employers’ accommodation obligations for pregnancy related conditions from what the EEOC originally included in the proposed regulations.

Highlights of Final Regulations

Conditions covered: include the same wide range of conditions related to pregnancy outlined in the proposed rule including fertility and infertility treatments, carpel tunnel, menstruation, postpartum depressions, lactation, changes in hormone levels, miscarriage, stillbirth, and preeclampsia. Despite receiving many comments, both for and against the inclusion of abortion and its aftermath, abortion continues to be a covered condition based on EEOC’s prior coverage under Pregnancy Discrimination Act.
Reasonable Accommodations: which rarely impose an undue hardship is expanded in the final rule and includes permitting employees to carry or keep water nearby, taking breaks to eat and drink as needed, and permitting employees to either stand or sit as necessary. The final rule notes that employers need to ensure its policies do not negatively impact employees with reasonable accommodations.
Qualified Individual clarified as to who can perform the essential functions “in the near future.” If an individual is pregnant, the presumption is that the individual will be able to perform the essential functions “in the near future” within 40 weeks of the suspension of the job functions. The regulations do not impose a 40-week limitation for conditions other than a current pregnancy. In the final rule, a request to indefinitely suspend an essential function is not considered to be “in the near future.”
Documentation and information: an employer’s right to demand documentation to support a request is limited in the final rule to only what is reasonable under the circumstances to determine if the employee has a qualified condition and needs an adjustment or change at work due to the limitation.
Unlawful employment practices: include unnecessary delay by employer to provide reasonable accommodation.

Implementation

A federal district court in Texas blocked enforcement of the regulation against the state of Texas based on the underlying statute’s being approved under pandemic voting rules which allowed proxy voting by members of the House of Representatives. The PWFA is in effect for private employers effective June 18 despite the Texas injunction, but challenges are expected.

What Employers Should Do Next

Despite the potential for continuing legal challenges to PWFA and the final rules, employers should carefully review the final regulations to determine how to comply with the new requirements prior to its June 18 effective date.

In order to assist clients to prepare for the new obligations, FortneyScott will be presenting a complimentary webinar on May 22 from 12:00 noon to 1:00 ET – register now .

In the meanwhile, clients with questions can reach out to their FortneyScott attorney or email info@fortneyscott.com .

Issued April 18, 2024

New Race Categories

Tue, 09 Apr 2024 19:17:00 GMT

On March 29, 2024, the Office of Management and Budget published revisions to federal data that covered entities must collect on race and ethnicity. Principally, the new revisions would add Middle Eastern and North African (MENA) as a race group and return Hispanic/Latino to the race categories. The revisions to the Statistical Policy Directive No. 15: Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity (SPD 15) would also allow individuals to select multiple categories rather than only a single race/ethnicity category. OMB gave federal agencies 18 months to develop implementation plans for the new categories with an ultimate deadline of five years for full compliance.

Background

The SPD 15, originally developed in 1977, provides common language for uniformity and comparability in the collection and use of race and ethnicity data by federal agencies such as EEO-1 Reports. The last time SPD 15 was revised was in 1997. In January 2023, OMB proposed updating SPD 15 saying “large societal, political, economic, and demographic shifts in the United States” during the past 25 years increased racial and ethnic diversity; as a result, “a growing number of people identify as more than one race or ethnicity….” The revised SPD 15 replaces and supersedes 1997 SPD 15.

Revised SPD 15 Adds New Race Categories

The new SPD 15 now includes the MENA race/ethnicity category, changed the format to combine the various race and ethnicity questions into one, and allows individuals to select all race/ethnicities that apply. The new MENA category is defined as covering Lebanese, Syrian, Iranian, Iraqi, Egyptian, Israeli, as well as Moroccan, Yemeni and Kurdish individuals. The new race/ethnicity categories now include American Indian or Alaska Native; Asian; Black or African American; Hispanic or Latino; Middle Eastern or North African; Native Hawaiian or Pacific Islander and White.

Implementation

Federal agencies are directed to update their surveys and administrative forms as quickly as possible with OMB directing them to submit an Agency Action Plan for complete implementation in 18 months and to bring all data collections into compliance in five years.

No Action for Employers Yet

Employers currently have no obligations to collect data for the new categories until EEOC updates the EEO-1 Report. The current EEO-1 Report is approved through 2026 so it is likely EEOC won’t revise the report for the 2024 and 2025 data collections. The last time OMB revised SPD 15 in 1997 EEOC did not implement the changes to the EEO-1 Report until 2007.

FortneyScott will continue to monitor these developments and provide updates as appropriate. Clients with questions can reach out to their FortneyScott attorney.

Issued: April 9, 2024

Biden Administration Proposes New Pay Transparency/Equity Rule

Tue, 02 Apr 2024 22:17:14 GMT

On January 29, 2024, on the 15 ^th anniversary of the enactment of the Lily Ledbetter Fair Pay Act, the Biden Administration announced a proposed regulation to prohibit federal contractors and subcontractors from using job applicant’s prior salary history when setting pay and to require federal contractors to disclose the expected salary range in job postings. The proposal was published in the Federal Register on January 30, 2024 and comments were due on April 1, 2024.

Background

The proposed rule was issued by the Federal Acquisition Regulation (FAR) Council after being directed by President Biden in Executive Order 14069 issued in March of 2022 to promulgate proposed rules enhancing pay equity and transparency for federal contractors’ job applicants and employees.

Proposed Rule

The proposal, which covers applicants and current employees seeking a position to perform work on or in connection with the contract, bans the use of salary history and also requires expansive compensation disclosure and notice requirements. The “in connection with” is defined as “work activities necessary to the performance of the contract but not specifically called for by the contract” (89 Fed. Reg. 5843, 5853). This vastly expanded definition will make it difficult for contractors to determine who is covered.)

Under the salary history portion of the proposal, federal contractors and subcontractors may not

Seek, directly or indirectly, the compensation history of any applicant from any person;
Retaliate against or refuse to consider any applicant for failing to respond to a compensation inquiry; or
Rely on an applicant’s compensation history for screening or considering an applicant for employment or in determining an applicant’s compensation, even if the applicant volunteers compensation history.

In addition, federal contractors will be required to include in all advertisements for job openings, placed by or on behalf of any position on or in connection with a contract, the following disclosure:

Salary, wages or pay range a contractor “in good faith” believes it will pay for the advertised position and may include:
Pay scale for the position,
Range of compensation for those currently working in similar jobs, or
Amount budgeted for the position.
General description of benefits and other forms of compensation applicable and, if half of the compensation is derived from commissions, bonuses, and/or overtime, the contractor must specify the percentage of overall compensation for each form of compensation that it in good faith believes will be paid.

Finally, federal contractors must provide a standard notice of these requirements as either part of the job announcement or application process, including the following, verbatim:

This employer is a Federal contractor or subcontractor. Under 48 C.F.R. (FAR) 52.222–ZZ, Prohibition on Compensation History Inquiries and Requirement for Compensation Disclosures by Contractors During Recruitment and Hiring, Federal contractors and subcontractors may not inquire about or rely on an applicant’s compensation history to screen an applicant for employment or to determine the applicant’s pay for a position on or in connection with a Federal contract or subcontract, even when the information is offered without prompting. The employer must also disclose the compensation for the position in all advertisements for the job opening.

Applicants alleging Federal contractor or subcontractor violations of these requirements: These applicants may submit a complaint to the central collection point of the agency that issued the solicitation for the Federal contract or awarded the Federal contract or order, as identified at www.dol.gov/general/labor-advisors . The complaint must be submitted within 180 days of the date the violation occurred. The agency that issued the solicitation or awarded the contract or order on which this applicant would primarily work is _______. [Contractor to fill in with appropriate agency name] For applicants supporting multiple agencies, complaints should copy the central collection point of all known agencies to be supported by the applicant’s position.

Applicants alleging discrimination on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or protected veteran status should file a complaint with the Office of Federal Contract Compliance Programs (OFCCP). If complaints alleging discrimination are submitted to an agency central collection point rather than directly with OFCCP, the complaints will be forwarded to OFCCP. Information on the process for filing a formal complaint of discrimination with OFCCP can be found at the following website: https:// www.dol.gov/agencies/ofccp/contact/ file-complaint .

The notice would require contractors to identify which agency issued the solicitation, award, or the order on which the applicant would primarily work. Any applicant who alleges violation of these requirements may submit a complaint to “the central collection point of the agency” that issued the solicitation or awarded the contract. The central collection point of the contracting agency is identified as DOL Labor Advisors assigned to the contracting agency.

Substantial New Burdens Imposed

While initially the proposal looks similar to current state and local pay transparency requirements, it places a substantial additional burden on contractors because of its differences with current pay transparency requirements. The requirement to tie each position to a specific contract is especially onerous because contractors do not always know which position will be tied to which federal contract and many workers devote time to many contracts in the course of their job.

Next Steps

While the FAR Council is considering the comments to its proposal, several courts are reconsidering whether the President has the authority under the Procurement Act to issue Executive Orders like this one. Despite the likelihood of court challenges, federal contractors should carefully review this proposal and begin to determine how to comply with the new proposal.

FortneyScott will continue to monitor these developments and provide updates as appropriate. Clients with questions can reach out to their FortneyScott attorney.

Issued: April 2, 2024

OFCCP Contractor Portal to Open on April 1, 2024

Tue, 26 Mar 2024 10:32:02 GMT

OFCCP announced on March 25, 2025 that its contractor portal will open for federal contractor certification on April 1, 2024 and close on July 1, 2024. OFCCP has provided updated resources for the 2024 certification including a new webinar and some FAQ updates.

Contact your FortneyScott lawyer if you have any questions.

Nita Beecher Moderating DC Briefing: Executive Agencies v. the Courts March 26, 2024

Thu, 14 Mar 2024 16:49:14 GMT

On Tuesday, March 26, 2024 at 3:00 PM Eastern, Nita Beecher will be moderating the upcoming Employment Law Alliance (ELA) panel, DC Briefing: Executive Agencies v. the Courts .

The executive agencies continue to issue new regulations and rulings while the Supreme Court weighs the future of “the administrative state.”

The panel will discuss the actions of the DOL (Wage & Hour; OFCCP; OSHA), the NLRB, and recent Court arguments confronting the Chevron doctrine, with a focus on the impact on the workplace.

To register for this webinar, please click here .

Biden Administration Proposes New Pay Transparency/Equity Rule for Federal Contractors

Wed, 31 Jan 2024 20:32:24 GMT

On January 30, 2024, the Biden Administration published a proposed regulation to prohibit federal contractors and subcontractors from using job applicant’s prior salary history when setting pay and to require federal contractors to disclose the expected salary range in job postings. Comments on the proposal are due by April 11.

The proposed rule would:

Prohibit federal contractors and subcontractors from seeking and considering information about job applicants’ compensation history when making employment decisions about personnel working on or in connection with a government contract; and
Require federal contractors and subcontractors to disclose the compensation to be offered to the hired applicant for any position to be performed on or in connection with a contract in all advertisements for job openings involving work on or in connection with a government contract placed by or on behalf of the contractor or subcontractor.

In addition, the new rule establishes a complaint process for applicants who allege noncompliance with the new requirement. Such complaints would be filed with the appropriate agency while discrimination complaints would continue to be filed with OFCCP.

The Notice of Proposed Rulemaking (NPRM) by the FAR Council was announced on January 29, 2024 as part of the Biden Administration’s commemoration of the Lilly Ledbetter Fair Pay Act and to implement Executive Order 14069, Advancing Economy, Efficiency, and Effectiveness in Federal Contracting by Promoting Pay Equity and Transparency .

FortneyScott will continue to monitor these developments and provide updates as appropriate. Clients with questions can reach out to their FortneyScott attorney.

New Independent Contractor Rule Raises Issues of Compliance and Enforcement

Wed, 17 Jan 2024 15:58:02 GMT

On January 9, 2024, the Department of Labor’s Wage and Hour Administration (“W&H”) issued its long-awaited final regulation, “ Employee or Independent Contractor Classification Under the Fair Labor Standards Act.”

According to the new rule, the determination of whether a worker is an employee or independent contractor focuses on whether the worker is either economically dependent on an employer for work or in business for his or herself. The new rule uses seven factors to help make that determination. This reverses the prior rule which had focused on two factors—whether there was direct control over someone’s work and whether the worker had an opportunity for profit and loss, with the other factors reduced to secondary considerations. With the new rule, all factors will be weighed equally under a totality of circumstances analysis, which, inevitably, creates ambiguity and uncertainty for all parties involved.

The economic factors of the new rule are:

1. Opportunity for profit or loss depending on managerial skill

2. Investments by worker and the potential employer

3. Degree of permanence of work relationship

4. Nature and degree of control

5. Extent to which work performed is integral to employer’s business

6. Skill and initiative

7. Additional factors (if they in some way indicate whether worker was in business for self or economically dependent on employer for work).

The new rule will have a huge impact on the economy, particularly with respect to construction, trucking, health care, and the entire “gig economy,” which appears to be a target of the regulation.

Certain factors, such as the nature and degree of control and whether a worker is “integral” to a business, are already raising concerns. The W&H explanation of the control factor, for example, states that even reserved control – that is, for example, a contractual right to oversee or supervise work – even if never used – can be an indicator of employee status. Similar ambiguity surrounds the classification of a temporary worker with particular skills hired for a short-term project that is part of a business’ normal activity. Is such a worker now considered an employee or do the other factors outweigh that determination? Future guidance or enforcement may clarify those questions.

The regulation becomes final on March 11, 2024. This regulation does not displace other federal regulations on the same subject, nor does it affect the numerous state and municipal worker classification laws that have been enacted in the past few years.

Lawsuits have already been filed and a judicial battle royale, well-funded by gig companies, is certain to ensue.

For additional insights from FortneyScott specialists into this broad and complicated regulation, listen to our recent podcast episode on the new rule: DC Insider—Employer Update .

Jacqueline Scott Leads Global Attorney Organization

Fri, 17 Nov 2023 22:35:23 GMT

FortneyScott is pleased to announce that its co-founder Jacqueline Scott became President of the global bar organization, Union Internationale des Avocats (UIA).

As President of the UIA, Jacqueline Scott has responsibility for overseeing and leading the UIA’s attorney members in 110 countries. UIA fosters professional development and the exchange of information and ideas internationally, promotes the rule of law, defends the independence and freedom of lawyers worldwide, and emphasizes friendship, collegiality and networking among members. Additional information on Ms. Scott and her new UIA responsibilities is available here .

New UIA President Jacqueline Scott Speech at the 67th Congress, "Defense of the Defense"

Wed, 15 Nov 2023 21:07:21 GMT

For the first time as President of the Union Internationale des Avocats ("UIA"), FortneyScott co-founder Jacqueline Scott attended the 67th UIA Congress in Italy late last month.

The UIA is a global, multicultural organization that brings together the legal profession and whose members represent 110 countries.

Ms. Scott provided her first Presidential Speech for the closing of the Congress, "Defense of the Defense" . You can view the video or read the transcript is also available.

FortneyScott and DCI Consulting Group Launch DEI Risk Assessment

Wed, 15 Nov 2023 20:37:45 GMT

FortneyScott and DCI Consulting Group Launch DEI Risk Assessment

DEI program evaluation offers privileged critical information to mitigate risk

Washington, D.C.: Fortney & Scott, LLC (FortneyScott), a leading Washington, DC law firm representing and advising a broad range of employers, has partnered with DCI Consulting Group, Inc. (DCI), a Washington, D.C.-based human resources data analytics and consulting firm, to offer a comprehensive, multi-disciplined DEI Risk Assessment.

Employers and their C-Suites and Boards of Directors are facing growing challenges to their Diversity, Equity, and Inclusion (DEI) programs. In response, employers are turning to Fortney Scott and DCI as outside experts to assess their legal compliance and provide advice as to best practices. As a result, we have developed a proactive, comprehensive, and attorney-client privileged DEI Risk Assessment. This DEI Risk Assessment is a crucial first step to identifying and mitigating potential legal exposure, and includes:

1. Self-Evaluation of DEI Programs & Commitments

2. Listening Sessions with Executives & DEI Leaders

3. Legal Review & Risk Assessment of Policies, Procedures and Practices

4. Scorecard & Best Practice Recommendations

“Following the recent rulings by the Supreme Court in UNC and Harvard, it is clear that the legal risks for corporate DEI programs have substantially increased.” said FortneyScott Co-Founder David S. Fortney. “The critical step for employers now is to conduct an attorney-privileged assessment of their DEI programs -- that includes necessary workforce analyses and benchmarking based on best practices -- to determine how their DEI programs should be implemented going forward.”

About FortneyScott

FortneyScott is a Washington, DC-based law firm counseling and advising clients on the full spectrum of DEI and workplace-related matters. The firm offers clients unparalleled experience and expertise by its attorneys, who formerly held senior positions at the U.S. Department of Labor (DOL), Equal Employment Opportunity Commission (EEOC) and other government agencies, in corporate and Congressional legal staffs, in major law firms, and who served as a judge on an international tribunal.

About DCI

DCI Consulting Group is a human resources risk management consulting firm strategically headquartered in Washington, D.C. Members of DCI’s staff are recognized experts in a variety of spaces, including systemic compensation discrimination analyses, affirmative action plan development and implementation, pay equity analyses, DEIA metrics, employee selection and test validation, and OFCCP audit and litigation support. DCI also offers proprietary software and related support to clients.

FortneyScott Media Contact: DCI Media Contact:

info@fortneyscott.com news@dciconsult.com 202-689-1200

14-448-7355

Biden Issues Executive Order on AI

Mon, 30 Oct 2023 22:10:48 GMT

On Monday, October 30th, President Biden signed a wide-ranging executive order directing numerous federal agencies to take targeted actions regarding Artificial Intelligence ("AI"). The executive order, entitled Executive Order on Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (the "EO"), focuses in part on the use of AI in the workplace, though it covers other areas of concern such as cybersecurity and housing discrimination.

As is summarized in the Fact Sheet issued by the White House, the EO directs the Department of Labor ("DOL") to "[d]evelop principles and best practices to mitigate the harms and maximize the benefits of AI for workers by addressing job displacement; labor standards; workplace equity, health, and safety; and data collection."

Some of the other specific actions called for in the EO relating to the workplace include:

Requiring the DOL to issue guidance to federal contractors on how to prevent AI and other technologies from causing hiring discrimination.
Directing the Department of Justice and Federal civil rights offices to combat algorithmic discrimination through training, technical assistance, and coordination on best practices for prosecuting civil rights violations caused by AI.
Directing DOL to issue a report outlining how the federal government can help workers displaced by AI and other technological advancements. This includes examining current laws and "identify[ing] options, including potential legislative measures, to strengthen or develop additional Federal support for workers displaced by AI[.]"

This EO represents significant action on the part of the Biden Administration to respond to public calls for action on AI but it is not an enforceable regulation. Employers should monitor the actions taken by federal agencies in response to the White House’s call to action and the growing focus in the U.S. Senate on AI legislation from Senator Chuck Schumer (D-NY) and others.

FortneyScott will continue to monitor these developments and provide updates as appropriate.

FortneyScott L&E News Flash

Thu, 26 Oct 2023 22:12:24 GMT

NLRB Issues Joint Employer Regulation

The NLRB issued its long-awaited and controversial Rule on joint employment. The aim of the Rule is to deem vastly increased numbers of workers as joint employees, which would permit the workers to seek to bargain with both joint employers.

Under the new Rule, NLRB will give determinative weight to the alleged joint employer’s authority to control seven key factors relating to the terms and conditions of employment: (1) wages, benefits, and other compensation; (2) hours of work and scheduling; (3) the assignment of duties to be performed; (4) the supervision of the performance of duties; (5) work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline; (6) the tenure of employment, including hiring and discharge; and (7) working conditions related to the safety and health of employees.”

The most controversial element of the new regulation is that indirect and unexercised authority or control can establish joint employment. Thus, if a company has contractual authority over employment terms but never used that power, that could be enough evidence under this Rule to establish the existence of a joint employer relationship.

The effective date of the new rule is December 26, 2023, and the new standard will only be applied to cases filed after the effective date.

Update on Biden Administration Nominees

The Biden Administration has struggled to get its nominees confirmed by the Senate. However, in last few months, the logjam seems to be breaking.

Jessica Looman Confirmed as Wage & Hour Administrator

On Wednesday, October 25, 2023, the Senate by a 51-46 vote confirmed Principal Deputy Administrator, Jessica Looman, as the head of the DOL’s Wage and Hour Division. Ending an unusually long vacancy for the post after President Biden’s initial nominee, David Weil, was defeated. Looman served as the Principal Agency Administrator since January 20, 2021. As W&H Administrator, Looman will be asked to shepherd her agency’s new Independent Contractor and Overtime regulations to final promulgation.

EEOC Chair Charlotte Burrows Clears Hurdle to Confirmation

Also on Wednesday, October 25th, the Senate Health, Education, Labor and Pensions Committee moved Burrows’ nomination as Chair of the EEOC closer to confirmation, in an 11-10 party-line vote. Chair Burrows, whom President Joe Biden nominated in June for another term, is expected to win Senate approval but not by the unanimous approval she received in 2019. With Chair Burrows’ confirmation, President Biden will have appointed a majority of the 5-member Commission, enabling the EEOC to undertake its long-delayed plans including renewal of its pay data collection.

Karla Gilbride Sworn in as EEOC Counsel

Karla Gilbride was sworn in as EEOC’s General Counsel after being confirmed by the Senate on October 17 for a four-year term. Gilbride is well-versed in employment discrimination litigation with over 15 years of experience in arguing cases on behalf of workers. She previously worked as the co-director for the Access to Justice Project for the non-profit organization, Public Justice. Gilbride, who is blind, is the first person with a known disability to be appointed to this role as General Counsel to the EEOC.

FortneyScott Webinar: Legal Compliance for DEIA Programs After Harvard/UNC - Tuesday, September 12, 2023 at 12:00 PM

Fri, 18 Aug 2023 22:29:48 GMT

It is critical for employers to understand the legal implications of the Supreme Court’s affirmative action decisions on their DEIA programs. During this webinar, the FortneyScott attorneys discussed the impact of the Supreme Court’s Harvard/UNC decisions on employers’ DEIA and supplier diversity programs and provided attendees with practical recommendations on addressing legal compliance in companies DEIA programs.

The webinar addressed the key issues relating to DEIA programs, including:

What steps you can take to effectively review and to assess current DEIA programs
What you need to know about Title VII’s voluntary affirmative action safe harbor
Examples you can use of common DEIA practices and programs, and how YOU CAN address legal compliance, including targeted recruiting, ERGs, mentorship programs, high potential designations, the Rooney Rule, and more
The importance of using attorney privilege in any evaluation
You’re Under the Gun: Know the wide array of stakeholders’ that are asserting challenges to DEIA programs and the responses

You can access the video here and a pdf of the slides here .

OFCCP Issued Revised Final Pre-Enforcement Notice and Conciliation Procedures

Tue, 08 Aug 2023 18:41:27 GMT

Overview: The Office of Federal Contract Compliances Programs (OFCCP) issued revised final Pre-Enforcement Notice and Conciliation Procedures on August 4, 2023, which substantially altered the standards by which those contractors’ efforts will be evaluated in compliance reviews. The revised regulation culminates a process to rescind the existing rule that began a mere 15 months after the prior regulation was promulgated. The new rule becomes effective on Sept. 5, 2023.

Background on 2020 Rule: The 2020 Pre-Enforcement Notice and Conciliation Procedures (“PDN”) Rule was designed to strengthen the evidentiary bases for the agency’s enforcement proceedings. The 2020 rule was a response to a 2016 GAO Report that was strongly critical of the inconsistency and unreliability of the agency’s auditing procedures, including its statistical findings. A key part of the 2020 rule was to provide “clear evidentiary standards” upon which compliance officers could proceed. Specifically, the 2020 Rule articulated clear standards that required OFCCP to demonstrate the following in any PDN and NOV alleging intentional disparate treatment:

quantitative evidence of a standard deviation of two or more based on a statistical analysis of similarly situated groups and controlling for legitimate job-related factors;
the identified disparity is practically significant; and
qualitative evidence supports a finding of discriminatory intent on the part of the contractor.

It was widely believed in the contractor community that the 2020 rule would yield more focused audits, improved notice to contractors, and superior statistical data on which enforcement/ conciliation efforts could proceed.

2023 Rule: The revised PDN regulation eliminates the specific evidentiary requirements of the rule, cited above, that the agency needed to meet to issue a Predetermination Notice or Notice of Violation. In the place of these comprehensible standards, the final rule restores the Predetermination Notice to convey preliminary findings of potential discrimination, providing contractors early notice when OFCCP finds potential issues, based on unarticulated criteria and often undisclosed statistical calculations. The revised rule also gives the agency the right to add violations to an NOV not included in a PDN and shortens the response period for predetermination notices from 30 days to 15 days. As stated in the new regulation: “In sum, this final rule largely returns to the processes and standards under which OFCCP and contractors operated for many years prior to the effective date of the 2020 rule…”

Conclusion: The OFCCP’s 2020 PDN Rule provided much needed guidance to both contractors and OFCCP alike on when and how potential discrimination should be determined. However, the revised rule has removed nearly all of that guidance despite contractors’ request that such guidance be retained.

NLRB Sets New Standard for Employee Handbooks for All Employers

Wed, 02 Aug 2023 23:04:36 GMT

The National Labor Relations Board (NLRB) ruled on August 2, 2023, to overturn a recent precedent and change the standard for evaluating workplace rules. The new ruling, Stericycle, Inc. , was issued under Section 7 of the National Labor Relations Act and, thus, applies to all employers, without regard for the union status of any employees.

The prior standard, Boeing Co. , established in 2017 and re-affirmed two years later, was highly regarded in the business community, as it recognized an employer’s interest in employee conduct that could affect both the behavior of its workforce and its public reputation. That standard was deemed by this Board as being insufficiently protective of employees’ concerted protected activity, that is, employees’ rights to act together to affect the terms and conditions of employment. At the core the Board’s ruling is a belief that workers will interpret even commonplace workplace rules as restricting their rights. By overturning Boeing’s clarity and focusing on the workers’ interpretation of a workplace rule, the decision introduces a level of ambiguity that the Boeing standard sought to minimize. Nonetheless, the Board has ruled that it

will interpret the rule from the perspective of an employee who is subject to the rule and economically dependent on the employer, and who also contemplates engaging in protected concerted activity. Consistent with this perspective, the employer’s intent in maintaining a rule is immaterial . Rather, if an employee could reasonably interpret the rule to have a coercive meaning, the General Counsel will carry her burden, even if a contrary, noncoercive interpretation of the rule is also reasonable . [emphasis added]

Rather than being able to rely on previously legal handbooks, employers will now have to demonstrate that a challenged rule is narrowly tailored to “advance legitimate and substantial business interests” without demeaning or interfering with the workers’ Section 7 rights.

This pending ruling has been the subject of intense scrutiny, causing the Board to seek briefs from the public. Of considerable interest were and are the implications of the ruling on such sensitive matters as confidentiality of workplace investigations, including those for sexual harassment, the anonymity of witnesses, conflicts of interest, nondisparagement, and other similar workplace rules. Those subjects are now open to worker challenges and Board review. Like the recent ruling limiting an employer’s ability to discipline abusive speech ( Lion Elastomers ), the Stericycle decision will renew questions about the wisdom of the NLRB’s apparent indifference to impact of its rulings on other laws and other interests affecting the workplace.

Pay Equity Bulletin - Summer 2023

Thu, 06 Jul 2023 21:03:43 GMT

Pay equity continues to be an area with fast moving developments.

In May, Goldman Sachs settled a pay discrimination class action lawsuit brought by female employees for an eye popping $215 million.
The Supreme Court rulings in Students for Fair Admissions Inc. v. President and Fellows of Harvard College and Students for Fair Admissions Inc. v. University of North Carolina make it vital for employers to conduct Title VII compliant pay equity analyses on a regular basis.
Similarly, with recent shareholder proposals calling for wage gap disclosures, employers should be performing pay equity audits to ensure legal compliance before data is made publicly available.
Following the national trend, states continue to pass laws requiring pay range disclosures in job postings.

Goldman Sachs Settles Pay Equity Lawsuit for $215 Million

In May, investment firm Goldman Sachs (“Goldman”) announced it had settled a longstanding class action brought by female employees alleging unequal pay and discrimination in promotions. The class action was composed of 2,800 associates and vice presidents of the company. In addition to the financial component of the settlement, Goldman will be required to hire an outside expert to evaluate its promotion and performance evaluation process for the next three years. Though the settlement is substantial, by reaching an agreement with the plaintiffs, Goldman avoided going through a potentially embarrassing trial in June.

Supreme Court Bans Use of Race in Admissions

On June 29th the Supreme Court handed down its ruling in Students for Fair Admissions Inc. v. President and Fellows of Harvard College and Students for Fair Admissions Inc. v. University of North Carolina . The decision held the use of race in college admissions to be a violation of the Equal Protection guarantee of the 14th Amendment. While the opinion does not directly concern the workplace, it will draw scrutiny to pay equity initiatives from DE&I detractors. Employers that make use of pay equity audits should ensure the audits are compliant with Title VII because “back of the envelope” adjustments to pay may create liability.

Pay Equity Shareholder Proposals

In recent years DE&I focused shareholder proposals have become increasingly popular. Among the recent wave of these proposals are demands that companies publicly release wage gap data for women and minorities. Public companies should be mindful of the trend and conduct regular pay equity audits to address any pay equity issues before being required to publish potentially embarrassing data that may draw legal claims. For example, this year activist shareholder group Arjuna Capitol filed a shareholder proposal with the grocery store chain Kroger demanding that the company “report on both quantitative median and adjusted pay gaps across race and gender, including associated policy, reputational, competitive, and operational risks, and risks related to recruiting and retaining diverse talent.” Kroger’s shareholders approved the proposal on June 22nd. Last year Disney and Lowe’s approved similar measures from Arjuna.

New Pay Range Disclosure Laws

This spring saw significant amounts of proposed legislation at the state level that would mandate disclosure of pay ranges in job postings. Such laws are already in effect in California, Colorado, Washington State and numerous localities, including New York City. The legislation proposed in Illinois passed the legislature and awaits the signature of Governor Pritzker. The measure proposed in Hawaii passed and was signed into law by Hawaii’s governor this July. Additionally, Colorado amended its existing pay range disclosure law to create additional obligations for employers. A summary of the legislation as passed, and the Colorado amendment may be found below:

Illinois: HB3129
Status : Awaiting signature by the governor.
Effective Date : January 1, 2025
Scope :
Applies to employers with 15 or more employees.
Applies to positions that will be physically performed in Illinois or that will be performed outside of Illinois but report to a supervisor, office, or other work site in Illinois.
Key Provisions :
Job postings must include a pay scale and benefits information. This includes "the wage or salary, or the wage or salary range, and a general description of the benefits and other compensation, including, but not limited to, bonuses, stock options, or other incentives the employer reasonably expects in good faith to offer for the position . . . . "
Any positions advertised publicly that would be a promotion for an existing employee must be made available internally within 14 days of the public posting.
Employers must make the pay scale and benefits information available to an applicant before discussing compensation or at the applicant’s request, if the position was not posted publicly.

Hawaii : SB1057
Status : Signed into law.
Effective Date : January 1, 2024
Scope :
Only applies to companies with 50 or more employees.
Does not apply to internal transfers and promotions.
Key Provisions :
Require hourly rate or salary range to be included in the job posting that reasonably reflects the actual expected compensation.

Colorado : SB23-105
Status : Signed into law.
Effective Date : January 1, 2024
Scope :
The law currently applies to employers with at least one employee in Colorado who are advertising for a position that can be performed in whole or in part within Colorado, including by remote work.
Under the amendment, if an employer is physically located outside of Colorado and has fewer than 15 employees in Colorado working remotely, the employer need only provide notice of remote job opportunities to Colorado employees through July 1, 2029. Previously the law required notice of all opportunities.
Key Provisions of Amendment :
Job postings must now include the date when the application window will close.
The law requires employers that select an individual for a position to make a reasonable effort to provide the following information to the people who will work with the person within 30 calendar days:
Name of person selected;
The selected individual’s prior job title (if applicable);
The selected individual’s new job title;
Info about how to express interest for similar opportunities in the future.
For positions that allow for career progression based on time in position or other metrics, the employe must “make available to all eligible employees the requirements for career progression, in addition to each positions terms of compensation, benefits, full-time or part-time status, duties, and access to further advancement.” Previously these positions were required to be posted internally.

As a reminder to employers, New York State’s pay range disclosure law goes into effect on September 17, 2023.

FortneyScott Webinar: Supreme Court Decisions in Harvard, UNC, & Groff - Practical Implications for Employers

Thu, 06 Jul 2023 19:45:55 GMT

On Thursday, June 29, 2023, the U.S. Supreme Court issued three much anticipated decisions that have major implications for employers. The Court banned public and private colleges and universities from using race as a factor in admissions in Students for Fair Admissions Inc. v. President and Fellows of Harvard College and Students for Fair Admissions Inc. v. University of North Carolina , while expanding employers’ obligation to provide religious accommodations to employees and applicants in Groff v. DeJoy .

In order to help employers understand the practical implications of these decisions, FortneyScott is holding a complimentary client webinar on Thursday, July 13 at 12:00 noon, ET.

Join the FortneyScott attorneys, including David Fortney, Leslie Silverman, Burt Fishman, and Nita Beecher, as they discuss the practical implications of these important decisions for employers, including:

How Harvard/UNC decisions will impact employers’ DEI efforts
What changes employers need to make in their religious accommodation process in light of Groff
Whether the affirmative action decisions will impact federal contractors’ affirmative action obligations and more

Click here to register for this important free webinar on Thursday, July 13 at 12:00 noon ET.

Supreme Court Rules to Expand Religious Accommodation Obligations

Thu, 29 Jun 2023 22:52:57 GMT

Overview

The US Supreme Court unanimously ruled in Groff v. DeJoy on June 29, 2023 that employers who deny a religious accommodation under Title VII must show that the burden of granting an accommodation would result in substantially increased costs in the conduct of its particular business. While not overturning its 1977 Trans World Airlines v. Hardison decision, the Court rejected its de minimis standard for determining whether a requested religious accommodation was an undue hardship under Title VII.

Background

Gerald Groff, a USPS employee, sued the Post Office after he was fired for missing work on Sunday more than two dozen times between March 2017 and May 2018. He claimed he told USPS that he could not work on Sundays because he wanted to attend church. However, the post office was contractually obligated to deliver Amazon packages on Sunday and could not always find other employees to trade shifts with him. Groff’s supervisor suggested alternatives to missing work entirely including working after church services or taking a full day off during the week to observe the Sabbath. The Third Circuit Court of Appeals upheld the district court’s grant of summary judgment to the post office, finding that the religious accommodation Groff was seeking was more than a “de minimis” burden on the employer and therefore was an “undue hardship” under the Supreme Court’s 1977 Trans World Airlines Inc. v. Hardison .

Opinion

In the unanimous opinion authored by Justice Samuel Alito and to which Justices Sotomayor and Jackson concurred, the Court reversed and remanded the Third Circuit’s decision which relied on the de minimis standard to determine whether a religious accommodation was unduly burdensome. However, the Court did not overturn Trans World Airlines v. Hardison saying the lower courts had taken the Hardison de minimis standard as “the authoritative interpretation of the statutory term “undue hardship” and that “it is doubtful that it was meant to take that large role.” Judge Alito cited Title VII’s statutory language as requiring an employer denying a religious accommodation to show that the burden of granting the accommodation it “would result in substantial increased costs in relation to the conduct of its particular business.”

The Court rejected Groff’s argument that “undue hardship” should be interpreted as “significant difficulty or expense” as that standard is used in the Americans with Disabilities Act as well as the federal government’s argument that Hardison should be clarified to reflect how lower courts and the EEOC had applied it.

The Court in vacating the decision for USPS stated that they “think it’s appropriate to leave it to the lower courts to apply our clarified context-specific standard and decide whether any further factual development is needed.”

Impact for Employers

This decision increases the burden on employers to prove why granting a religious accommodation would be an “undue hardship.” Although the standard is less than that for the ADA, it is substantially more than the previous de minimis standard. As the Court was reinterpreting a prior decision, the new standard applies to any pending religious accommodation cases.

Supreme Court Ends Affirmative Action in University Admissions

Thu, 29 Jun 2023 22:46:14 GMT

In the cases of Students for Fair Admissions Inc. v. President and Fellows of Harvard College and Students for Fair Admissions Inc. v. University of North Carolina , the Supreme Court ruled, 6-3, that using race as a factor in university admissions violates both the 14th Amendment of the Constitution and Title VI of the Civil Rights Act. At the root of the Court’s decision is a profound questioning of whether “diversity” and all its related attributes, provide a sufficient basis to overcome the legal hurdle of using racial preferences.

The Opinion

Chief Justice Roberts wrote the majority opinion for the Harvard case but addressed the constitutional issues underlying both cases.* It is a withering rejection of the Court’s prior rulings in the Affirmative Action sphere. Noting first that the Universities’ admissions programs overtly circumvent the constitutional requirement of “equal protection,” the opinion made clear that, despite prior holdings to the contrary, those programs did not present a narrowly tailored, compelling governmental interest that would permit an exception to the constitutional prohibition on using racial preferences. In explicit terms, the Court held that the rationales that had supported prior rulings by the Court were inadequate. Specifically, the Court determined that such justifications as “training future leaders in the public and private sectors”; preparing graduates to “adapt to an increasingly pluralistic society”; “better educating its students through diversity broadening and refining understanding”; and “enhancing appreciation, respect, and empathy, cross-racial understanding, and breaking down stereotypes” were commendable goals, but “ they are not sufficiently coherent for purposes of strict scrutiny ”(emphasis added).

The Court was also troubled by the lack of an endpoint for the admissions programs and the absence of any standard by which the commendable goals could be assessed, noting that the Universities’ “admissions programs fail to articulate a meaningful connection between the means they employ and the goals they pursue.” In conclusion, the Court held that because “Harvard’s and UNC’s admissions programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful endpoints, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause.”

The Court did not foreclose all efforts by universities to apply more than mechanical admissions standards. Justice Roberts explicitly noted that “[a]t the same time, nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.” Just how that assessment can be made within the confines of the Court’s ruling will be a challenge to admissions officers.

Impact on Employers

Significantly, nothing in this decision expressly addresses affirmative action for federal contractors under Executive Order 11246 or for diversity in employment, in general. However, employers will likely face weakening support for diversity programs that this ruling will engender, along with the likelihood of fewer minority candidates from elite universities in the employment pipeline. In addition, Justice Gorsuch’s dissection of the various racial and ethnic categories currently used in gathering government statistics may signal an interest in reviewing the use of such data for purposes of availability and utilization in affirmative action plans, which could lead to a re-examination of that entire program.

________________

*Justice Jackson recused herself from the Harvard case but participated in UNC , which, as a result, required a separate ruling in that case. Justice Gorsuch wrote a “concurring” opinion for the UNC case, deciding in the same way on the same grounds with respect to Title VI.

David Fortney & Savanna Shuntich on June 20 ELA Webinar: Enforcement of US Child Labor Laws Heats Up This Summer

Tue, 20 Jun 2023 15:09:32 GMT

On Tuesday, June 20 at 3:00 PM ET, the Employment Law Alliance will present a webinar on the Enforcement of US Child Labor Laws.

I n the U.S., unlawful child labor is on the rise and the U.S. Department of Labor (“DOL”) has recently conducted hundreds of investigations and brought enforcement actions against companies in the agriculture, meat and poultry processing, manufacturing, food production, construction, hospitality, and other industries for failing to comply with child labor laws.

Along with moderator, FS attorney David Fortney, and panelist, FS attorney Savanna Shuntich, the attorney panel is comprised of subject matter experts all of whom have direct experience in successfully advising employers on complying with the growing challenges under Federal and state law relating to the lawful employment of workers under 18 years of age.

EEOC Issues Artificial Intelligence Guidance

Fri, 19 May 2023 16:19:15 GMT

Overview: The Equal Employment Opportunity Commission (EEOC) issued guidance for employers using Artificial Intelligence (AI) in hiring. The new technical assistance document, issued May 18, 2023 and entitled Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964 , does not break new ground. Importantly, however, the guidance cautions that in the EEOC’s opinion an AI tool can cause unlawful adverse impact under Title VII even if an assessment of potential impact meets the “4/5ths rule” under the Uniform Guidelines on Employee Selection Procedures (“UGESP”).

The EEOC’s new guidance should be taken into account by employers in evaluating whether AI tools and software cause unlawful disparate impact in employment decisions.

Key Features of the Guidance

EEOC’s press release explains that the guidance “answers questions employers and tech developers may have about how Title VII applies to use of automated systems in employment decisions and assists employers in evaluating whether such systems may have an adverse or disparate impact on a basis prohibited by Title VII.” The document builds on the previous EEOC technical assistance document on AI and the Americans with Disabilities Act.

The guidance makes clear that AI tools can be considered a selection procedure under UGESP “when they are used to make or inform decisions about whether to hire, promote, terminate, or take similar actions toward applicants and current employees” and reinforces that employers can be held liable under Title VII for use of discriminatory AI tools, even if the tools are designed or administered by a vendor.

EEOC Chair Charlotte Burrows has publicly expressed concern on a number of occasions that AI vendors are promising employers that their tools are free of adverse impact because they satisfy the 4/5ths rule. The guidance explains that the 4/5ths rule “is merely a rule of thumb” under UGESP and that use of the rule might not be a reasonable substitute for a test of statistical significance. The guidance directs employers to ask potential vendors if they used the 4/5ths rule or statistical significance in evaluating whether the tool causes adverse impact.

Employer Takeaways

The EEOC’s guidance underscores that the best practice for the assessments of AI tools is to determine whether the AI tools have statistically significant impact and, if necessary, can be validated in accordance with the UGESP standards. Additionally, it is advisable for employers to conduct validation assessments under the attorney privileges.

FortneyScott will continue to follow and update clients on the evolving legal landscape for the use of AI in employment. Feel free to reach out to any of the FortneyScott attorneys with questions.

Jacqueline Scott Will Serve as President of the International Union of Lawyers (UIA) in October 2023

Fri, 21 Apr 2023 21:15:00 GMT

Beginning in October 2023, FortneyScott Co-Founder Jacqueline Scott will officially serve as President of the International Union of Lawyers (UIA), a global, multicultural organization that brings together the legal profession and whose members represent 110 countries.

Full article here .

New York City Finalizes Regulations for AEDT Law and Will Begin Enforcement July 5th

Wed, 12 Apr 2023 14:34:00 GMT

New York City (“NYC”) has announced that it will begin enforcement of its Automated Employment Decision Tools law (“ Local Law 144 ”) on July 5, 2023. In anticipation of enforcement, NYC’s Department of Consumer and Worker Protection (“DCWP”) published the final regulations (“ Final Rule ”) for Local Law 144 on April 6th. Enforcement of Local Law 144 was set to take effect earlier this year but was repeatedly delayed.

Local Law 144 places substantial obligations on employers and employment agencies using Automated Employment Decision Tools (AEDTs) in hiring and promotions in NYC. AEDTs are defined as selection tools using machine learning, statistical modeling, data analytics, or artificial intelligence that meet certain technical requirements. Among other obligations, before using an AEDT for hiring or in promotions, employers must ensure that the tool is audited for bias and must make a summary of the results of the audit publicly available. In addition, employers must notify candidates and employees that an AEDT will be used to evaluate them at least 10 business days before the tool is used.

Prior to the Final Rule, DCWP published two draft versions of the rule which were the subject of significant commentary from the regulated public. The Final Rule includes some changes from the last version of the draft rule that was published in December 2022. For example, the Final Rule expands the definition of covered AEDTs.

FortneyScott will keep clients informed of future developments related to Local Law 144.

Reach out to any FortneyScott attorney for assistance in preparing for enforcement of Local Law 144 or contact us at info@fortneyscott.com for additional information.

Pay Equity Bulletin

Mon, 10 Apr 2023 17:34:39 GMT

Pay Equity Bulletin: Spring 2023

This winter brought significant developments in pay equity matters. March 14 marked Equal Pay Day for women, which should serve as a reminder for employers to conduct pay equity assessments on a regular basis in order to avoid enforcement actions and legal claims related to unequal pay.

In addition, a number of states implemented or passed laws requiring the disclosure of pay ranges in job postings that will cover any employer posting positions for remote work that can be performed in those states.

U.S. Marks Equal Pay Day

Tuesday, March 14 was Equal Pay Day for 2023. Equal Pay Day is not attached to a particular date but instead marks the day each year that women catch up to the earnings of men for the prior year. Women on average still earn only 84 cents on each dollar a man earns, and the figure is significantly worse for many minority women. Equal Pay Day should serve as a yearly reminder to employers to assess their pay practices for discrimination. Employers that assess their compensation structure through pay equity audits are less likely to attract enforcement actions and costly litigation.

While the federal government took no significant action on Equal Pay Day to advance pay equity, statements from leadership in the Biden administration emphasize that the administration remains ready and willing to bring enforcement actions against employers with discriminatory pay practices. On Equal Pay Day, Charlotte Burrows, Chair of the Equal Employment Opportunity Commission (EEOC), issued a statement touting the accomplishments made towards equal pay since Equal Pay Day was instituted in 1996, when the event came a month later. But Chair Burrows cautioned that “[w]hile we have gradually chipped away at the gender pay gap, we still have significant work to do.” President Biden marked the day by issuing a Proclamation calling on Congress to pass the Paycheck Fairness Act , which would make it more difficult for employers to defend pay disparities in legal proceedings and would make it largely unlawful for employers to make decisions about compensation for new employees based on past compensation history.

The Acting Secretary of Labor, Julie Su, also issued press release noting what DOL is doing to close the pay gap and specifically noting OFCCP’s issuance of a fact sheet on proactive approaches to pay equity. Former OFCCP Director Jenny Yang posted on the DOL blog, Recommitting to Pay Equity on Equal Pay Day , in which she outlined how to improve pay equity, concluding that “[p]ay equity benefits all workers and the economy.”

Woman do not just lag behind men in compensation. According to a U.S. Government Accountability Office report released on Equal Pay Day, they are also underrepresented in management positions. Moreover, women compromise only 10% of the CEOs of Fortune 500 companies.

Remote Workers Covered by New Pay Range Disclosure Laws

This winter there have been significant developments regarding pay transparency laws across the country. New York State enacted a law requiring disclosure of pay ranges in job advertisements and California and Washington State issued much needed guidance for employers seeking to comply with similar laws that went into effect in those states on January 1. Employers should be paying attention to these laws regardless of whether they have worksites New York, California, or Washington because postings for remote work in those states will be covered.

On December 21, 2022, New York Governor Kathy Hochul signed into law a bill requiring employers with four or more employees to include wage or salary ranges in all advertisements for hire, promotion, or transfer. The law would apply to all jobs “that can or will be performed, at least in part, in the State of New York.” The law extends to remote workers located in New York and is set to go into effect on September 17, 2023.
Also in December, California and Washington State released guidance to assist employers in complying with their laws requiring disclosure of pay ranges in job postings. According to the guidance documents, both laws will cover postings for positions that can be performed remotely within those states.
Washington State’s pay range disclosure law requires every job posting to include a wage scale or salary range, a description of available benefits, and an explanation of any other compensation offered. The Washington guidance lays out strict requirements for what information about benefits and other types of compensation must be included in the job posting, making Washington’s law arguably the most strenuous in the nation from a compliance perspective.
The California guidance does not require employers to disclose benefits or other forms of compensation.

Employers across the country offering remote work in any of these states should be reviewing the requirements of the new laws even if they do not have operations in California, New York or Washington State because any remote positions will fall under the jurisdiction of those laws. Moreover, Colorado was the first to pass a law requiring disclosure of pay ranges in job postings and its law covers remote workers located in the state as well. Not to mention there are numerous municipalities and localities that passed similar laws, such as New York City and Jersey City, NJ, some of which may cover remote workers. Employers should not assume their job postings are free from coverage.

Update: OFCCP Contractor Portal to Open March 31, 2023

Tue, 21 Mar 2023 21:55:42 GMT

Federal contractors must again certify compliance on OFCCP Contractor Portal between March 31, 2023 and June 29, 2023.

On March 20, 2023 the Office of Federal Contractor Compliance Programs (OFCCP) announced that it will open its Contractor Portal on March 31, 2023 in which current supply and service federal contractors certify their compliance with Affirmative Action Program (AAP) requirements for 2023. Current federal contractors have until June 29, 2023 to certify their compliance. According to OFCCP’s announcement, contractors will now have to enter the start date of their AAP Coverage period when certifying.

OFCCP again noted that those existing contractors which do not certify by June 29, 2023 will be more likely to be selected for audits.

OFCCP stated that it would upload a pre-recorded webinar onto the Contractor Portal Landing Page on March 29, 2023 to demonstrate how contractors can enter their information and certify their compliance.

For those federal contractors who have not yet registered for the Contractor Portal, OFCCP “urges you” to register as soon as possible and provides a link to the Contractor Portal Webinar presented on March 31, 2022 .

OFCCP ended its notice with how contractors can contact OFCCP with questions and comments at OFCCPAppsSupport@dol.gov or call the OFCCP Help Desk at 1-800-397-6251 . Contractors can expect more information to be placed on OFCCP Contractor Portal Landing Page .

FortneyScott attorneys will continue to update clients on the status of the Contractor Portal.

Corporations Caught in the Middle – Growing Challenges by Activist Shareholders to DE&I Programs

Wed, 15 Mar 2023 16:22:28 GMT

Companies committed to Diversity Equity & Inclusion (DE&I) initiatives cannot ignore the growing array of challenges to corporate DE&I programs. We are seeing a growing number of DE&I programs become the focus of legal controversy, with corporations caught between activist shareholders pushing to increase diversity in the workforce and others arguing against DE&I programs.

In addition, there are new legal claims against companies that embraced and implemented broad DE&I programs and made public pledges to increase diversity in their workforces and supply chains.

The growing skepticism and challenges of DE&I programs likely will accelerate after the Supreme Court’s widely anticipated decisions later this year, which are predicted to set aside affirmative action programs in student admissions and expand protections against religious discrimination.

We provide additional information on these developments and the legal challenges to corporate DE&I programs in our Briefing Paper , and on our newest podcast entitled “DEI Under Assault: Will it Survive” on The DC Insider—Employer Update ™ podcast series.

OFCCP Issues 2023 CSAL Listing

Fri, 20 Jan 2023 22:14:48 GMT

On Friday, January 20, 2023, the US DOL’s Office of Federal Contract Compliance Programs (OFCCP) issued a list of the federal contractors that it will audit. This list – known as the Corporate Scheduling Announcement List (CSAL) – notifies over 500 contractors and subcontractors that their establishments have been selected by the agency for audit. The scheduling letters commencing audits can be sent to contractors effective immediately.

Those federal contractors and subcontractors that are on the newest CSAL promptly should assess whether they are audit ready. Advanced preparations are important because OFCCP will only grant an extension of the 30-day deadline for data submission in limited “extraordinary circumstances.”

FortneyScott recommends that federal contractors that have establishments on the new CSAL should confirm that they are properly included in the CSAL, and also begin their preparations for the upcoming audit including completing their 2023 AAPs as soon as possible.

Reach out to any FortneyScott attorney for assistance in preparing for the upcoming compliance evaluations or contact us at info@fortneyscott.com for additional information.

Federal Trade Commission Proposes Ban on Non-Competes

Thu, 12 Jan 2023 21:50:53 GMT

On January 5, 2023, the Federal Trade Commission (FTC) issued a Notice of Proposed Rulemaking (NPRM) which, if enacted, would outlaw non-compete agreements for virtually all workers. Specifically, the NPRM identifies non-compete agreements as “unfair methods of competition” which are unlawful under Section 5 of the Federal Trade Commission Act. The only proposed exception is for those selling all or a “substantial” part of a business, an ambiguity likely to be addressed in the future. Importantly, the proposed regulation would not only prohibit employers from using non-compete agreements in the future but would also be applied retroactively, requiring employers to notify workers (and former workers) already subject to non-compete agreements that the agreements are no longer valid.

For employers who use non-compete agreements, this proposed regulation will require significant changes to their current processes and agreements, and also raises serious concerns regarding how employers can and should protect their business interests going forward.

The NPRM is currently under a 60-day regulatory notice and comment period which is set to expire in March. The FTC has invited comments on potential alternatives to the proposed regulations and specifically has sought input on whether different standards should apply to different categories of workers. FortneyScott is currently working with leading trade associations to file comments addressing employer concerns related to the proposed regulation.

If you would like to discuss the potential impact of the proposed regulation on your business, or if you are interested in filing comments with the FTC, please do not hesitate to contact us.

FortneyScott Integral to New Report on Use of Artificial Intelligence in Employment

Fri, 06 Jan 2023 15:18:46 GMT

FortneyScott continues to play a key role in the developments involving the use of Artificial Intelligence (“AI”) in employment.

Most recently, FortneyScott played a crucial role in the creation of the, “ Technical Advisory Committee Report on EEO and DEI&A Considerations in the Use of Artificial Intelligence in Employment Decision Making ,” (the “Report”). As outlined in the Summary , the Report provides a series of findings and recommendations for employers to lawfully use AI-enabled tools within the current regulatory and legal framework for equal employment opportunity (“EEO”) and non-discrimination.

The Report was issued by the nonprofit, employer-organization, The Institute for Workplace Equality (“The Institute”) in late December. It was drafted by a cross-disciplinary committee of legal professionals, industrial and organizational psychologists, and data scientists (“Artificial Intelligence Technical Advisory Committee” or “AI TAC”), and chaired by Victoria A. Lipnic, Esq., former Commissioner and former Acting Chair of the EEOC.

David Fortney, co-founder of The Institute, was a driving force behind the creation of the AI-TAC and the Report. Other members of the FortneyScott team played vital roles in the release of this Report. Savanna Shuntich, an associate with FortneyScott, was a member of the subcommittee that authored the Uniform Guidelines on Employee Selection Procedures (“UGESP”) section of the Report, and Adriana Joens, a law clerk with FortneyScott, was a researcher and on the editorial committee.

AI tools used in employment are drawing attention from regulators including the Federal Trade Commission and the Equal Employment Opportunity Commission. Employers using AI tools in selections can look to this report for recommendations of how to utilize the technology to drive successful hiring while avoiding running afoul of regulators.

FortneyScott is proud of its contributions to the Report and our attorneys would be happy to address any questions you may relating to the use of AI in employment.

Elizabeth Bradley Co-Presenting at 2023 SIOP Annual Conference

Tue, 27 Dec 2022 23:12:46 GMT

2023 SIOP Annual Conference

April 22, 2023

Boston MA)

Removing Barriers for Candidates with Disabilities: What (More) Can We Do?

Cross disciplinary panel discussion by consultants, practitioners, and researchers concerned with bias in pre-employment selection tools and procedures, with a focus on neurodiversity and cognitive or neurological disabilities. Panelist will discuss relevant legislation and regulatory guidelines, practical recommendations from experts in test development and consulting, and the role of I-O psychologists, assessment providers, and other talent acquisition experts – in the evaluation and mitigation of barriers to entry for people with disabilities.

Co-Presenting with Amy Yost, Ph.D. (DCI); Jeff Facteau, Ph.D. (HackerRank); Kama Dodge, Ph.D. (Amazon); Jone Papinchock, Ph.D. (DCI); and Angie Rosenbaum Ph.D. (DCI)

Elizabeth Bradley Co-Presenting at ABA FLSL Midwinter Meeting

Tue, 27 Dec 2022 23:09:43 GMT

2023 ABA FLSL Midwinter Meeting

February 16, 2023

Puerto Vallarta, Mexico

Government Contractor Update – Panel discussion of recent changes to federal labor standards impacting federal government contractor including proposed revisions to the Davis-Bacon Act regulations, status of litigation over federal contractor minimum wage requirements and the elements of the Inflation Reduction Act of 2022 regarding important prevailing wage, workforce development and apprenticeship provisions.

Co-Presenting with Jesse Grauman, Esq. (US DOL)

OFCCP Proposes Significant Revisions to Audit Scheduling Letter and Itemized Listing

Tue, 22 Nov 2022 21:55:14 GMT

The Office of Federal Contract Compliance Programs (OFCCP) submitted a revised Scheduling Letter and Itemized Listing form to the Office of Management and Budget (OMB) for approval on November 21, 2022. The Scheduling Letter is used to commence an OFCCP desk audit and requires a response within 30 days to the detailed data requests included in the letter. Failing to respond fully within 30 days may result in the federal contractor facing litigation filed by OFCCP. All comments on the proposed changes are due by January 20, 2023.

OFCCP’s proposed revisions seek to significantly broaden the scope of data required to be produced during a compliance evaluation and may include requirements that exceed the Agency’s regulatory authority.

The most significant changes to the Scheduling Letter and Itemized Listing forms include:

Higher education will be required to provide OFCCP with all AAPs developed for all campuses, schools, etc. within a single city. With this proposed requirement, OFCCP is seeking to use the Scheduling Letter to circumvent the regulations that clearly permit the development – and audit of – establishment-based AAPs in higher education.
Contractors will be required to provide “[d]ocumentation of policies and practices regarding all employment recruiting, screening, and hiring mechanisms, including the use of artificial intelligence, algorithms, automated systems or other technology-based selection procedures.”
Compensation data reporting is expanded from 1 year to 2 years by requiring reports from both the current date of the organizational display/workforce analysis and the prior year’s organizational display/workforce analysis.
Contractors will be required to provide documentation to establish that it has evaluated its compensation systems, including detailed information on the forms of compensation analyses conducted. This proposal seeks to create obligations on federal contractors that exceed the regulatory requirements.
Contractors will be required to include individuals employed by staffing agencies in the compensation data report. This is an attempt to expand the current applicable definition of a covered employee.

These are a few examples of the sweeping changes proposed by OFCCP. The entire proposed Scheduling Letter and Itemized Listing can be accessed here . If implemented as proposed, these changes will result in highly burdensome compliance evaluations and significantly increase federal contractors' compliance costs during audits.

Clients interested in filing comments should contact the FortneyScott attorney they work with or email us at info@fortneyscott.com .

What the Mid-Term Election Means for Employers

Mon, 21 Nov 2022 19:09:12 GMT

What the Mid-Term Election Means for Employers

Divided government returns, with Ds retaining the Senate, and Rs narrowly winning the House. Join David, Nita, and Burt as they analyze the impact of the historic midterm elections on key nominations, forthcoming regulations to pursue the Biden pro-labor agenda and stepped-up oversight by an energized House Labor Committee.

The Supreme Court Takes on Affirmative Action

Mon, 07 Nov 2022 15:26:41 GMT

The Supreme Court Takes on Affirmative Action

The Supreme Court heard arguments for 5 ½ hours! Join David, Nita, and Burt as they distill and condense the various positions taken on Constitutional rights, statutory requirements, the benefits of diversity, the burdens of racial preferences, and the impact on universities, employers, and society of the predicted reversal of precedents.

DOL’s Proposed Independent Contractor Rule

Fri, 28 Oct 2022 18:37:42 GMT

DOL’s Proposed Independent Contractor Rule

The DOL’s long-awaited Independent Contractor regulations were finally issued and are the subject of the latest episode. Join Burt, and two Fortney Scott experts in Wage and Hour law, John Clifford and Savanna Shuntich, as they unravel and explain the impact of this lengthy, complex, and important regulation on employers and employees... including its chances of becoming final.

DOL Releases Proposed Independent Contractor Regulations

Tue, 11 Oct 2022 21:06:20 GMT

Today the U.S. Department of Labor (“DOL”) released its proposed independent contractor regulations under the Fair Labor Standards Act (“FLSA”). The proposed regulations largely restore the Obama administration’s totality-of-the-circumstances analysis to determine whether workers are employees or independent contractors. Among many concerns, the proposed regulations do not provide employers with a clear test for determining the lawful classification of their workers.

Please join FortneyScott on October 19th from 12:00 noon to 1:00 ET for a complimentary webinar discussing the proposed regulations and their potential impact on employers. You can register for the webinar here .

The regulatory comment period closes on November 28, 2022 (the Monday after the Thanksgiving holiday). Clients interested in filing comments should contact the FortneyScott team.

Additional Background: For decades, the DOL had applied a multi-factor “economic reality” test, which asks whether the worker is economically independent from the employer, to determine whether a worker is properly classified as an independent contractor. The Trump administration published a regulation in 2021 with preferred factors to be used in making the economic reality determination, emphasizing two “core” factors: (1) the nature and degree of the employer’s control over the work; and (2) the worker’s opportunity for profit or loss. The new proposed regulations return to a “totality-of-the-circumstances” analysis “in which the factors do not have a predetermined weight and are considered in view of the economic reality of the whole activity.” The proposed regulation lists six factors for the analysis: (1) opportunity for profit or loss depending on managerial skill; (2) investments by the worker and the employer; (3) degree of permanence of the work relationship; (4) nature and degree of control; (5) extent to which the work performed is an integral part of the employer’s business; and (6) skill and initiative. Additional changes being proposed, such as adopting “reserved authority” in place of overtly exercised “direct control,” would have potentially significant consequences for employers who utilize independent contractors.

FortneyScott will continue to follow this issue and provide analysis on new developments.

Updates on the EEOC and AI

Fri, 07 Oct 2022 15:28:36 GMT

Updates on the EEOC and AI

The DC Insider podcast returns with a lively discussion of the latest developments involving the EEOC and Artificial Intelligence. Join David, Nita, and Burt as they review the EEOC at a critical point—with tensions among the Commissioners, nominees pending required for the Democrats to have a majority, and hearings on new strategic enforcement priorities.

Meanwhile, AI developments are accelerating, with the EEOC’s HIRE initiative, the pending report on AI by The Institute for Workplace Equality, and the latest on the NYC and DC local laws regulating employers' use of AI.

OFCCP Extends Deadline to File FOIA Objections

Thu, 15 Sep 2022 21:11:11 GMT

On September 14, 2022, OFCCP announced that it was extending the deadline for filing written objections to the FOIA request to October 19, 2022 on its OFCCP Submitter Notice Response Portal. On August 19, 2022, OFCCP published a Federal Register notice announcing it had received a FOIA request for federal contractors’ 2016 to 2020 Type 2 EEO-1 Reports and that contractors had until September 19, 2022 to submit written objections to the request.

Special Labor Day Chat with Roger King

Tue, 06 Sep 2022 13:52:03 GMT

Special Labor Day Chat with Roger King

David Fortney sits down with highly regarded labor relations attorney, Roger King, for this special Labor Day episode of the DC Insider - Employer Update Podcast.

Federal Contractors Face Release of EEO-1 Reports

Wed, 31 Aug 2022 13:00:04 GMT

Federal Contractors Face Release of EEO-1 Reports

OFCCP received a FOIA request for 5-years of EEO-1 Reports. Federal contractors must object to the request by Sept. 19 or the data will be released. Join David, Nita, and Burt as they review the latest judicial interpretations of FOIA and the ways contractors can preserve their data from being disclosed.

EEO-1 FOIA Briefing

Fri, 19 Aug 2022 14:40:58 GMT

On Wednesday, August 24, 2022, FortneyScott held a briefing for our clients to provide updates and answer questions regarding OFCCP's Notice of Request Under the Freedom of Information Act for Federal Contractors’ Type 2 Consolidated EEO-1 Report Data.

Briefing Materials

Here’s the Notice that OFCCP Will Publish on Friday, August 19

Thu, 18 Aug 2022 14:30:52 GMT

OFCCP’s notice states it received a request under the Freedom of Information Act from Will Evans of the Center for Investigative Reporting (CIR) for all Type-2 Consolidated EEO-1 Reports filed by federal contractors for the years 2016 through 2020. The FAQs on the agency’s website clarifies that this FOIA request does not encompass the pay data collected for 2017 and 2018 known as Component 2.

Federal contractors have 30 days from Friday, August 19 or until September 19, 2022 (as 30 days falls on Sunday, September 18) to file written objections to the disclosure of their reports under FOIA Exemption 4. The Federal Register notice announces that OFCCP has created a OFCCP Submitter Notice Response Portal through which contractors can submit their objections as well as FAQs. Contractors can also submit their written objections by email at OFCCPSubmitterResponse@dol.gov or by mail.

FortneyScott has assisted many of its clients in preparing FOIA objections. Should you need assistance, please reach out to FortneyScott at info@fortneyscott.com , or your FortneyScott Attorney.

On Wednesday, August 24, 2022, FortneyScott held a briefing for our clients to provide updates and answer questions.

Briefing Materials

Contractors Must Respond to FOIA Request Asking OFCCP to Release All Federal Contractors’ EEO-1 Type 2 Data

Tue, 16 Aug 2022 19:31:02 GMT

On Friday, August 19, in the Federal Register, OFCCP will publish an announcement that it received a Freedom of Information Act (“FOIA”) Request seeking the production of EEO-1 Type-2 data for all federal contractors for a period of five years. Federal contractors will have thirty (30) days from the date of publication to object to the production of their Type-2 reports. Contractors who do not file objections will have their EEO-1 Type-2 Reports released.

FortneyScott is well-versed in preparing and submitting objections to FOIA requests such as these. Contact your FortneyScott representative to learn more about filing objections to the FOIA request to protect the confidentiality of your workforce data.

On Wednesday, August 24, 2022, FortneyScott held a briefing for our clients to provide updates and answer questions.

Briefing Materials

Contractors Must Respond to FOIA Request Asking OFCCP to Release All Federal Contractors’ EEO-1 Type 2 Data

Tue, 16 Aug 2022 19:12:37 GMT

On Friday, August 20, in the Federal Register, OFCCP will publish an announcement that it received a Freedom of Information Act (“FOIA”) Request seeking the production of EEO-1 Type-2 data for all federal contractors for a period of five years. Federal contractors will have thirty (30) days from the date of publication to object to the production of their Type-2 reports. Contractors who do not file objections will have their EEO-1 Type-2 Reports released.

NAS Report on EEOC Data Collection Released

Mon, 08 Aug 2022 13:17:58 GMT

NAS Report on EEOC Data Collection Released

The NAS Report, evaluating the EEOC’s Pay Data Collection, was finally released on July 28, 2022. Nita brings her special experience as a member of the initial NAS panel and joins David and Burt to discuss the NAS Panel’s often critical conclusions and its sweeping recommendations for reconstructing the entire data collection process. The team then previews what employers can expect if and when a new data collection is announced.

NAS Report - Government Collection of Compensation Data

Thu, 28 Jul 2022 23:44:14 GMT

The National Academy of Sciences report addressing the collection of employers’ compensation data by the Federal government using the EEO-1 report was released July 28. The NAS report recommends that compensation data be collected again, but not by repeating the prior data collection processes.

The report was prepared at the request of the EEOC. The extensive and detailed report (287 pages) includes specific recommendations and analyses. Importantly, the NAS does not recommend repeating the same collection of compensation data that previously was followed. The NAS recommendations to the EEOC should be subject to public notice and input before being implemented by the EEOC.

The highlights of the NAS recommendations include:

The collection of compensation data, using W-2, box 5 data (not box 1 data, as was previously done).
A redesign of the EEO-1 form to provide for a single data collection—not using Components 1 and 2.
The NAS recommends collecting data based on either narrower pay bands (not EEO-1 groups) or individual pay data (recommended) and job tenure, experience and education.
The use of standard occupation classifications instead of the broad EEO-1 categories.
Distinguishing between Exempt and Non-Exempt, and Full Time and Part Time employees.
Collect actual hours worked for Non-Exempt employees.
Collect pay data based on age (40 or older), disability and veterans status, in addition to the existing EEO-1 categories, and also collect data based on sex, gender identity, and sexual orientation.
Recommends field testing by EEOC before implementing any new requirements.

A copy of the full Report and summary charts from the Report with the detailed recommendations are available here .

8/17/2022 - 12-1pm ET

FortneyScott Lunch & Learn: What Employers Need to Know About
the Released NAS Report on EEOC Pay Data Collection

PowerPoint Slide Deck (PDF)

EEOC Substantially Revises Key Components of its COVID-19 Guidance

Mon, 18 Jul 2022 23:57:05 GMT

OVERVIEW: EEOC quietly revised its COVID -19 guidance on July 12, 2022. In its latest update the Commission clarifies its view on several important issues for employers, announcing that the agency will apply pre-pandemic interpretations of ADA and Sections 503 standards to COVID-19 viral screening testing of employees which had been relaxed in response to the pandemic. These changes impact how employers must respond to pandemic-related issues making it even more challenging for employers who are grappling with reopening offices in the midst of another surge.

EEOC Guidance on COVID-19 Guidance

EEOC issued technical assistance guidance to provide answers to questions that frequently arise in the workplace during a pandemic beginning in March 2020. Since that time, EEOC has periodically updated What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws in response to new and emerging legal issues.

Here are some key takeaways from EEOC’s most recent update:

Major Changes involve Testing

Mandatory viral testing must meet the business necessity standard. EEOC had previously permitted employers to mandate COVID-19 viral testing as a screening measure, without requiring any additional showing. Due to changes in the pandemic EEOC will now apply its a pre-pandemic ADA standard that viral testing be job related and consistent with business necessity. Employer mandated viral testing will meet the “business necessity” standard, according to the revised guidance, so long as it is consistent with the guidance from the CDC, DFA or state/local public health authorities current at the time of testing. (EEOC Guidance A.6 and G.1)
Employers are prohibited from requiring antibody testing. Employers cannot require their employees to undergo antibody testing as a condition to reenter the workplace. Based on the CDC guidance, EEOC reasons that since an antibody test may not show whether or not an employee has a current infection or is immune to infection employer mandated antibody testing cannot meet the “business necessity” standard. (EEOC Guidance A.7)
Pre-employment screening must comply with existing ADA standards. Once an employer has made a conditional job offer it may screen job applicants for symptoms of COVID-19, so long as the employer screens all entering employees performing the same type of job. An employer may also screen all applicants at the pre-offer stage if the employer is screening everyone (employee, applicant, contractor or visitor) entering the worksite for COVID-19 before permitting entry. (EEOC Guidance C.1)

Return to Workplace Clarifications

Pandemic may cause excusable delays employers’ reasonable accommodation process. EEOC had previously acknowledged that circumstances surrounding the pandemic may interfere with employers responding expeditiously to an employee’s request for accommodation. In the recent update, EEOC notes that evolving circumstances, including, an onslaught of reasonable accommodation requests following an employer’s announcement of a return to the office, can justify delays in reasonable accommodation process and encourages employers to find interim solutions to keep employees working. (EEOC Guidance D.17)
Mandatory personal protective equipment & related infection control measures subject to reasonable accommodation. Employers are permitted to require workers to wear personal protective equipment and observe other infection control practices so long as they engage in the reasonable accommodation process with workers who requests reasonable accommodation due to disability or religious accommodation. (EEOC Guidance G.2)
Examples of reasonable accommodations that may reduce direct threat. The guidance provides examples of reasonable accommodations that could be deployed during the pandemic in order to reduce the direct threat to the employee or others in the workplace including enhanced protective gowns, masks, or gloves. Additionally, employers should consider enhanced protective measures like HEPA filtration systems; erecting barriers between employee and others; telework or other modifications of work schedules. (EEOC Guidance G.5)
Providing information about employers’ accommodation process to all employees. It is a best practice for employers to provide information on their reasonable accommodations process for disability and accommodations due to sincerely held religious beliefs prior to returning to the office (EEOC Guidance G.6) and to provide additional flexibility for older workers as the risk of severe illness from COVID-19 increases with age. (EEOC Guidance H.1)

Ability to Cancel Job Offers

Limited circumstances in which a job offer may be lawfully rescinded. If a newly hired employee tests positive, has symptoms or has been exposed to COVID-19, an employer can rescind their job offer if they need the new employee to start immediately and that employee would be in close proximity to others, whether at the workplace or elsewhere. (EEOC Guidance C.4)
Job offers may not be withdrawn because of concerns about increased risk . Employers may not postpone the start date or withdraw a job offer due to concerns that the individual is older, pregnant, or has an underlying medical condition that puts the individual at increased risk from COVID-19. (EEOC Guidance C.5)

EEOC Guidance Continues to Support Vaccinations

Mandatory vaccinations are still acceptable. The guidance reiterates that employers are permitted to require that their employees be vaccinated and to require employees to provide documentation of their vaccination, subject to reasonable accommodation and confidentiality requirements. (EEOC Guidance K.1, 4, 5)
No limit on employer incentives for voluntary vaccinations administered by unaffiliated health-care provider. Presumably in an effort to eliminate any ongoing confusion caused by the Commission’s continued delay in issuing a new Wellness rule, the guidance states clearly that there is no limit on the incentives (including both rewards and penalties) that an employer may provide to employees who voluntarily receive a COVID-19 vaccination, from a health care provider that is not affiliated with the employer. (EEOC Guidance K.16)

Next Steps

The updated Guidance requires employers to walk a fine line as they work on returning their workforces to the workplace. Feel free to reach out to any of the FortneyScott attorneys with questions.

Supremely Supreme

Tue, 12 Jul 2022 21:56:21 GMT

Supremely Supreme

The implications for employers of the momentous Supreme Court rulings are the subject of the latest episode. David, Nita, and Burt discuss the impact of the abortion, environment, and religious freedom decisions on employee health plans, travel benefits, Title VII protections, the diminished role of federal regulation of the workplace, and broadly expanded religious exercise rights for employees.

Pay Equity Continues Evolving

Tue, 28 Jun 2022 17:15:30 GMT

Pay Equity Continues Evolving

This year has featured major equal pay settlements, including Google’s recent $118 million settlement with female employees. FortneyScott attorneys Nita Beecher and Savanna Shuntich talk us through some of the biggest settlements and why listeners should be paying attention. They round out their discussion with an analysis of the new trend in state pay transparency laws.

The Federal Workplace Agencies: What’s Going On?

Tue, 21 Jun 2022 16:34:43 GMT

The Federal Workplace Agencies: What’s Going On?

With a divided and often resistant Congress, many expected the Federal agencies to aggressively implement the Biden Administration’s agenda. However, the results to date are mixed.

David, Burt, and Nita review the latest from the NLRB, EEOC, OFCCP, Wage and Hour, the new DOJ criminal investigation of employment practices, and the implementation of the USMCA international labor penalties by USTR and DOL. The DC Insiders discuss the latest on nominations and rulemaking hurdles, and what to expect from the agencies in the coming months.

Reminder: OFCCP’s Contractor Portal Certification Due by June 30, 2022

Mon, 13 Jun 2022 00:49:04 GMT

OVERVIEW: Reminder that Federal contractors are required to use OFCCP’s Contractor Portal to register and certify that they have developed and maintained affirmative action programs by June 30, 2022. Federal contractors should take all the necessary steps to meet the June 30th deadline.

Contractor Portal

The Contractor Portal requires supply and service federal contractors and subcontractors to register and, by June 30, 2022, federal contractors and subcontractors must certify whether they have affirmative action programs in place at each establishment or for each functional or business unit as of the certification date. New contractors and subcontractors will have 120 days from entering a covered contract to prepare written affirmative action plans in accordance with OFCCP regulations.

OFCCP Guidance on Contractor Registration and Certification

To register, organizations must create an account on the portal. The initial user must provide basic information on their organization and the portal can populate information for the organization based on the organization’s 2018 EEO-1 Reports. Organizations with more than one site will be required to provide information about their headquarters and each establishment. Those entities that have had mergers, acquisitions, or closed establishments may have to contact the agency to assist with the establishment list. The initial user who will be the administrative user can add additional users with either administrator privileges or access only to certain establishments.

OFCCP will send an email to the company contact of organizations self-identified as federal contractors or subcontractors on the 2018 EEO-1 Report. However, all covered contractors and subcontractors are required to register and certify on the portal even if they do not receive an email from OFCCP.

OFCCP guidance has been posted on the Contractor Portal Landing Page , and the landing page includes a User Guide and Updated Frequently Asked Questions .

Next Steps

All supply and service federal contractors and subcontractors must register and certify with OFCCP that they have affirmative action programs including written affirmative action plans by the June 30th deadline.

Feel free to reach out to any of the FortneyScott attorneys with questions.

House Oversight Hearing on EEOC and OFCCP

Tue, 03 May 2022 19:33:59 GMT

House Oversight Hearing on EEOC and OFCCP

The first oversight hearing of the Biden Administration’s EEOC and OFCCP was held by the House Subcommittee on Civil Rights and Human Services. FortneyScott attorney Savanna Shuntich attended the hearing and reports on the most significant developments. Then, based on the issues raised during the hearing, David, Burt, and Nita discuss what to expect from EEOC once (if) the third Democratic Commissioner is confirmed and the impact on both the EEOC and OFCCP if the Republicans win the House in the upcoming midterm elections.

OFCCP Pivots on Contractor Compliance

Wed, 13 Apr 2022 21:07:31 GMT

OFCCP Pivots on Contractor Compliance

OFCCP in the past several weeks has finally revised its compliance procedure in the way we expected of the Biden Administration. Our last episode discussed the agency’s new directive on compliance. This week, David, Nita, and FS Attorney Liz Bradley discuss OFCCP’s other new initiatives: opening the Contractor Portal for certification, the directive on compliance evaluations, and revising predetermination notice/notice of violation rules.

Maryland Passes Paid Leave Law

Mon, 11 Apr 2022 17:29:41 GMT

A new Maryland law will grant workers up to 12 weeks annually of paid time off to tend to a new child, their own medical problem, or a family member’s serious illness or military deployment, with benefits set to begin January 1, 2025. A parent could get up to 24 weeks if medical leave is needed during pregnancy followed by parental leave after childbirth. A payroll tax will fund Maryland’s program; the tax is scheduled to begin October 1, 2023, to be split between employers and employees — with the tax rate to be determined through a state Department of Labor study.

Benefits will replace 90% of weekly wages for the lowest-income workers and a smaller percentage for higher-paid workers, up to a maximum of $1,000 per week.

Pay Equity Front and Center on 2022 Equal Pay Day

Fri, 01 Apr 2022 15:55:25 GMT

Pay Equity Front and Center on 2022 Equal Pay Day

In recognition of Equal Pay Day (March 15th), David, Nita, and Burt focus on the Biden Administration’s coordinated efforts to achieve pay equity. President Biden’s Executive Order banning the federal government from using applicants’ and employees’ prior pay to determine salary and asking the FAR Council to do the same for federal contractors starts the discussion. We also review EEOC Chair Burrows’ outline of the agency’s achievements regarding pay discrimination over the past 5 years while it awaits the NAS report to reestablish pay data collection from employers. The core of the conversation is devoted to DOL’s OFCCP Directive 2022-01, which presents the agency’s controversial requirements for contractors to comply with their obligation to perform in-depth analyses of their compensation systems.

Biden Administration’s Pro-Worker Agenda Extends Across Agencies

Tue, 15 Mar 2022 16:05:58 GMT

Biden Administration’s Pro-Worker Agenda Extends Across Agencies

The historically broad and coordinated efforts by many NUMEROUS Federal agencies under the Biden Administration to support workers’ rights and union organizing are discussed by Nita, David, and Burt. A special focus is the integrated actions of agencies not usually involved in workplace matters, such as the Securities and Exchange Commission, Federal Trade Commission, Treasury, Department of Justice, and even Agriculture, especially on compliance and anti-competitive and anti-trust issues impacting vulnerable workers.

OFCCP’s New Compensation Evaluation Directive

Tue, 15 Mar 2022 01:33:13 GMT

The OFCCP issued Directive 2022-01, Pay Equity Audit s , to help mark Equal Pay Day on March 15, 2022. The new Directive provides detailed information on how OFCCP will assess compliance with federal contractors’ obligation to conduct an annual in-depth analysis of their compensation systems to determine whether there are gender-, race-, or ethnicity-based disparities, as required in OFCCP’s regulations (41 CFR 60-2.17(b)(3)).

The OFCCP’s new Directive takes an expansive view of what the required analysis should include, and lists examining pay disparities across similarly situated employees, looking broadly at a contractor’s workforce (across job titles, levels, roles, positions, and functions) to identify patterns of segregation by race, ethnicity, and gender, which may result from assignment, placement, or promotion barriers that drive pay disparities. OFCCP notes that it may request additional information, including the contractor’s pay equity audit, to investigate the contractor’s compliance. The question of whether pay equity studies prepared at the direction of counsel, that are privileged, must be disclosed to OFCCP also is addressed.

Key Takeaways : OFCCP will demand much greater information to meet the obligation to annually conduct the in-depth analysis of their compensation systems. Federal contractors should conduct an assessment of their compensation systems for each AAP or Functional AAP that can be provided to the Agency during an audit. The regulatory compliance assessments should be separate from the confidential, attorney-privileged pay equity compliance audits that well-counseled employers conduct.

FortneyScott can assist in meeting federal contractors’ regulatory obligations to conduct in-depth analysis of their compensation systems, and in conducting privileged pay equity compliance audits. Please contact your FortneyScott attorney or email us at info@fortneyscott.com .

Our podcast is another great way to stay abreast of developments, Listen to the DC Insider – Employer Update™ Podcast here!

Wage & Hour In Flux

Mon, 21 Feb 2022 17:04:57 GMT

Wage & Hour In Flux

The DOL’s Wage & Hour Division has been re-making itself to reflect Pres. Biden’s “pro-worker” agenda. Join Burt, and W&H specialists Liz Bradley and John Clifford in their discussion of new initiatives to impose Project Labor Agreements, expand and enforce the Davis-Bacon Act, re-write regulations defining independent contractors, AND make sense of the leadership vacuum at the Division.

What’s the Future for Affirmative Action in Employment?

Mon, 07 Feb 2022 18:14:12 GMT

What’s the Future for Affirmative Action in Employment?

The role of affirmative action is being hotly debated, and employers likely will need to revamp their traditional affirmative action programs. Join David, Nita, and Burt in their discussion of the evolving social and political responses to President Biden’s Supreme Court nominee, the pending challenges to affirmative action in higher ed before the Supreme Court, and the impact these developments will have on employers’ Diversity, Equity and Inclusion programs.

OFCCP Directive Substantially Revises Procedures for Audits

Wed, 02 Feb 2022 02:20:33 GMT

OVERVIEW : Federal contractors will be required to use OFCCP’s Contractor Portal to register and certify that they have developed and maintained affirmative action programs by June 30, 2022. On Tuesday, February 1, 2022, OFCCP held a webinar to explain how supply and service federal contractors can register for the Contractor Portal.

Contractor Portal Opens

The Contractor Portal opened for registration on February 1, 2022, for supply and service federal contractors and subcontractors. On March 31, 2022, the Contractor Portal will open for certification and by June 30, 2022, federal contractors and subcontractors must certify whether they have affirmative action programs in place at each establishment or for each functional or business unit as of the certification date. New contractors and subcontractors will have 120 days from entering a covered contract to prepare written affirmative action plans in accordance with OFCCP regulations.

OFCCP Webinar on Contractor Portal Registration

The OFCCP’s webinar walked participants through the registration process. To register, organizations must create an account on the portal. The initial user must provide basic information on their organization and the portal can populate information for the organization based on the organization’s 2018 EEO-1 Reports. Organizations with more than one site will be required to provide information about their headquarters and each establishment. Those entities that have had mergers, acquisitions, or closed establishments may have to contact the agency to assist with the establishment list. The initial user who will be the administrative user can add additional users with either administrator privileges or access only to certain establishments.

In addition to the webinar, which will be posted on the Contractor Portal Landing Page , the landing page includes a User Guide and Updated Frequently Asked Questions .

Next Steps

OFCCP announced that it will hold a webinar on the certification process on March 31, 2022. There are many unanswered questions remain including what exactly federal contractors and subcontractors are certifying. For example, during the February 2 webinar, the agency stated that contractors will be certifying that they had written affirmative action plans and that they have affirmative action programs.

FortneyScott attorneys will continue to monitor developments and update you as soon as additional information is available. Feel free to reach out to any of the FortneyScott attorneys with questions.

Agencies Take the Featured Role

Mon, 24 Jan 2022 19:44:14 GMT

Agencies Take the Featured Role

As focus turns from a stalled Congress, DC Insiders David, Nita, and Burt examine how the workplace enforcement agencies -- Wage & Hour, NLRB, OFCCP, and EEOC -- are coordinating their efforts to achieve the Biden pro-worker agenda. The panel will discuss the growing alliance between the NLRB and Wage & Hour on joint employer and independent contractor regulations, as well as the MOU on joint investigations; the increased cooperation between EEOC and OFCCP on the HIRE initiative; and the Administration-wide initiative to address retaliation in the workplace. Also reviewed is the OFCCP’s Verification Portal, scheduled to open on February 1, and contractors’ compliance responsibilities.

Federal Agencies' Priorities in 2022

Mon, 10 Jan 2022 16:23:55 GMT

The New Federal Regulatory Agenda and Policies

Join DC Insiders David, Nita, and Burt as they review the Federal agencies' ambitious regulatory plans and policies for 2022. The Biden Administration’s recently published Federal Fall Regulatory Agenda includes new regulations from Wage & Hour, OFCCP, and the NLRB. The DC Insiders also discuss the Administration’s coordination of its regulatory and enforcement agendas for multiple agencies to advance its broader policy goals relating to the workplace, e.g., joint employment, gig workers, pay equity, and retaliation.

The New Federal Regulatory Agenda and Policies

Mon, 20 Dec 2021 16:25:13 GMT

The New Federal Regulatory Agenda and Policies

Report from the Front – Courts Block Biden’s Vaccine Mandates

Mon, 06 Dec 2021 15:12:30 GMT

Report from the Front – Courts Block Biden’s Vaccine Mandates

Join David, Nita, and Burt as they review the judicial decisions that enjoined the OSHA, CMS, and Federal Contractor federal vaccine mandates and the implications of those decisions on the future of Executive Orders and federal regulation, in general. The FS Team discusses the various state laws limiting vaccine mandates in light of the suspension of federal regulation and wraps up with a discussion of best practices for employers, especially multi-jurisdictional employers, facing these profound and challenging conditions.

Biden’s Vaccine Mandates Face Court Challenges

Mon, 22 Nov 2021 16:15:06 GMT

Biden’s Vaccine Mandates Face Court Challenges

Join David, Nita, and Burt as they review the judicial challenges to the OSHA Emergency Temporary Standard (ETS) as well as the vaccine mandates for Federal contractors and CMS health care recipients. The FS Team unpacks the latest on the litigation claims against the ETS and Federal contractor mandates as well as the new state laws limiting employers’ compliance with the Federal requirements. The Team wraps up with a discussion of best practices for employers facing these rapid changes.

New OSHA Regulation on Vaccine Mandates and Testing

Mon, 08 Nov 2021 17:29:26 GMT

New OSHA Regulation on Vaccine Mandates and Testing

Join David, Nita, and Burt as they discuss the new OSHA Emergency Temporary Standard (ETS) requiring COVID-19 vaccinations or weekly testing for employers with 100 or more employees. The FS Team unpacks the most significant regulation in OSHA’s history, impacting 84 million employees. Additionally, the interplay with the Federal contractor vaccination obligations and conflicting state and local laws also are discussed.

Vaccine Mandates and Exemptions: Religious Exemptions are Not a Match Made in Heaven

Mon, 25 Oct 2021 16:42:46 GMT

Vaccine Mandates and Exemptions: Religious Exemptions Are Not a Match Made in Heaven

Join David, Nita, and Burt as they discuss the exemption requirements in the COVID federal vaccination mandates; particularly the challenges in addressing religious exemption requests. The FS Team outlines the issues that exemptions raise for employers under Federal and state laws, and the challenges when employers are unable to accommodate requests for medical and religious exemptions. Employers, including Federal contractors, are looking for additional guidance on which accommodations will be acceptable.

Federal Contractors Buckle Up: The Biden OFCCP is Getting Started

Mon, 11 Oct 2021 15:34:03 GMT

Federal Contractors Buckle Up: The Biden OFCCP is Getting Started

David Fortney is joined by guest David Cohen, from DCI Consulting, Inc., in a deep-dive discussion on the latest updates on enforcement results from the U.S. Department of Labor’s OFCCP focusing on Federal contractors’ compliance with their nondiscrimination and affirmative action obligations, and the Agency’s new initiatives. The fiscal Year 2021 ended September 30, 2021, and the surprisingly low monetary recoveries by the Biden Administration in its first 8 months are discussed. Although the initial results were historically low, Federal contractors can expect a much more robust OFCCP in the future, including new initiatives that focus on (1) the collection of pay data and enforcement, (2) a hiring surge that includes experts to challenge hiring and other employment practices, including Artificial Intelligence, that have an adverse impact, and (3) filing with the Agency new certifications of compliance and AAPs.

Federal Contractors' New Vaccination Mandates

Thu, 30 Sep 2021 15:07:45 GMT

Federal Contractors' New Vaccination Mandates

Join David, Nita, and Burt as they review President Biden’s Executive Orders imposing new vaccination requirements. The discussion focuses on federal contractors’ new obligations, as set out in the September 24th Guidance issued by the Safer Federal Workforce Task Force. Included are details about the expansive coverage provisions, the timing and record-keeping requirements, the safety protocols for “visitors” to contractor workplace locations, as well as how the new obligations are to be reconciled with other mandates – including the pending OSHA Emergency Temporary Standard, and state and local requirements. Finally, some practical steps that Federal contractors can undertake to meet these new obligations are reviewed.

Safer Federal Workforce Task Force Issues Guidance for Federal Contractors

Sat, 25 Sep 2021 02:13:06 GMT

OVERVIEW: The newly released Safer Federal Workforce Task Force Guidance requires vaccinations for all covered federal contractor and subcontractor employees by December 8, 2021. The new vaccination obligation applies to all employees working on or in connection with a federal contract or in a covered contractor workplace, including those employees who work remotely. The only exception is for those employees who are legally entitled to an accommodation based on disability or religion. Compliance with the Guidance will be required in future federal contracts, with narrow exceptions.

NEW VACCINATION REQUIREMENTS: The new Guidance from the Safer Federal Workplace Task Force (“Task Force”) issued on September 24, 2021, in response to the President’s Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors , outlines the following requirements for federal contractors and subcontractors:

Vaccine mandate: Coverage

All full-time and part-time employees of a covered contractor, working on or in connection with a covered contract or at a covered contractor workplace, will be required to be vaccinated by December 8, 2021 , including those working remotely. The only exceptions are for employees legally entitled to an accommodation.
After December 8, 2021, all covered contractor employees must be fully vaccinated by the first day of the period of performance of a newly awarded covered contract.
Employees who are considered performing work “in connection with” a covered contract includes those who perform duties necessary to the performance of a covered contract but who do not directly engage in performing the specific work called for by the covered contract “such as human resources, billing and legal review.”
This definition is broader than the coverage provisions included in Paid Sick Leave and Minimum Wage obligations.
Employers are to determine what type of accommodation they must offer to employees who request an accommodation.
Covered contractors are required to review (but not to retain copies of) their covered employees’ vaccination documentation which contractors may allow to be digital.
Attestation by covered contractor employee is not an acceptable substitute for documentation of proof of vaccination.
Covered contractors cannot accept a recent antibody test as proof of vaccination.
Covered contractor employees who have had prior COVID-19 infection are required to be vaccinated.
Covered contractors are required to “flow down” the contract clause to subcontractors but have no obligation to verify subcontractor compliance.
Contracts awarded prior to October 15th must incorporate vaccine clauses when an option is exercised or an extension is made. New contracts awarded on or after November 14, 2021, must incorporate the vaccine clauses. In the interim, contractors are encouraged to adopt the vaccine protocols.

Safety Protocols

Covered contractors are not required to determine the vaccination status of visitors or others; the only requirement is that they post signage at entrances on safety protocols, including masking and social distancing.
Covered contractors are required to ensure that all individuals including covered contractor employees and visitors wear masks and social distance in areas of high or substantial community transmission, as determined by CDC, except in limited circumstances of working alone in an office with a door or when eating or drinking.
Covered contractors are to designate a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.
This Guidance applies to contractor or subcontractor workplaces that are outdoors.

Relationship to other laws

The Guidance states that it overrides any contrary state or local law or ordinance.
Contractors must comply with this Guidance regardless of whether they are subject to other workplace safety standards, such as OSHA’s anticipated Emergency Temporary Standard on COVID-19.

CONCLUSION : Federal contractors need to immediately develop and implement plans for compliance. Although there are a growing number of legal challenges, it is likely that the new contracting obligations will be implemented.

FortneyScott attorneys will continue to monitor developments. Join our firm’s web-based briefing addressing Federal contractors’ new vaccination obligations on Wednesday, September 29 at 12:00 noon ET by registering here , or listen to our latest podcast on the DC Insider—Employer Update podcast here . Of course, please contact any of the FortneyScott attorneys with questions or email us at info@fortneyscott.com .

FortneyScott’s Client Briefing on New Federal Vaccination Mandates

Mon, 13 Sep 2021 15:05:40 GMT

FortneyScott provided a client briefing to discuss the new vaccination obligations that President Biden announced on September 9, 2021. In our September 9th Client Alert , we provided initial information immediately after the announcement. We want to follow up promptly and provide you with additional details.

FortneyScott attorneys David Fortney and Nita Beecher provided the latest information on vaccine mandates on Monday, September 13.

In the briefing, they addressed:

The announcement that OSHA will issue an Emergency Temporary Standard that will include obligations to vaccinate workers and to provide paid time off
The two new Executive Orders announcing new COVID safety protocols for Federal contractors and employees
The Safer Federal Workforce Task Force guidance
How the new obligations for federal contractors and employers fit within President Biden’s Action Plan, The Path Out of the Pandemic. We will address the Plan’s six pillars, including vaccinating the unvaccinated; further protecting the vaccinated through booster shots; keeping schools open; increasing testing and requiring masks; protecting the economic recovery, and improving care for those with Covid-19.

To request a copy of the briefing, please email info@fortneyscott.com .

Are 20th Century Employment Laws Effective for 21st Century Workers?

Mon, 13 Sep 2021 14:28:06 GMT

Are 20th Century Employment Laws Effective for 21st Century Workers?

September 13, 2021- To mark the Labor Day holiday, David, Burt, and Nita discuss the developing workplace laws, and review the 20th Century labor and employment laws and assess their effectiveness for the 21st Century workforce. We focus on how workplace laws historically lag behind changes in work and society and review how the 20th Century laws, such as the laws relating to union organizing, wage and hour, and civil rights protections, are being applied – and altered – in the 21st Century to the changing workforce including independent contractors and gig workers.

President Biden Announces New Measures to Combat COVID-19; OSHA to Issue ETS Requiring Vaccination or Weekly Negative Test

Thu, 09 Sep 2021 23:11:17 GMT

OVERVIEW: Employers with 100 or more employees and federal contractors must ensure their workforces are fully vaccinated or require unvaccinated workers to produce weekly negative COVID-19 test results. These employers will also be required to provide paid time off for workers to get vaccinated or for workers to recover from any vaccine side effects. The vaccination requirements are part of the President’s six-prong, comprehensive national strategy outlined in a White House Fact Sheet .

NEW VACCINATION REQUIREMENTS: President Biden announced on Thursday, September 9, 2021, that he is directing OSHA to issue an Emergency Temporary Standard (ETS) that will require employers with 100 or more employees to ensure that their employees are either fully vaccinated or that the unvaccinated employees produce a negative test weekly before coming to work. The ETS will also require these employers to provide paid time off for their employees to get vaccinated or to recover if they are “under the weather post-vaccination.” The ETS will be issued without any formal opportunity for comment, and no timetable has been announced.

In addition, the President signed an Executive Order directing federal government employees to be vaccinated within 75 days or be terminated. He is also extending the federal employee vaccination requirement to employees of federal contractors.

Finally, the President directed the Centers for Medicare & Medicaid Services to take action to require COVID-19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursements including but not limited to hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies.

OPEN ISSUES: There are numerous open issues including whether some of these initiatives exceed the President’s authority as well as timing and how obligations will be implemented for employers and federal contractors.

FortneyScott attorneys will continue to monitor developments and update you as soon as additional information is available. Feel free to reach out to any of the FortneyScott attorneys with questions.

OFCCP AAP Verification Program Approved by OMB FortneyScott Verification Tool to Assist Contractors Available

Thu, 02 Sep 2021 00:16:11 GMT

OVERVIEW: Federal contractors will be required to file annual verifications on compliance with the Federal contractor affirmative action program obligations that are enforced by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP). The verifications will be submitted through a web-based portal on OFCCP’s website. The submission portal also is expected to be used for contractors to submit their affirmative action programs to OFCCP during audits.

WHAT MUST BE VERIFIED: On August 31, 2021, the Office of Management and Budget (OMB) through its Office of Information and Regulatory Affairs (OIRA) approved OFCCP’s Affirmative Action Program Verification Interface. The verification program requires federal contractors to certify as true one of the following questions for each of its establishments:

It has developed and maintained affirmative action programs at each establishment, as applicable. See 41 CFR Chapter 60. Note that the obligation is to verify compliance with all requirements of the regulations, which includes the preparation of Affirmative Action Plans, and a wide range of record keeping, workforce analytics, and notifications that are included in the affirmative action program obligations.
It has been party to a qualifying federal contract or subcontract for 120 days or more and has not developed and maintained applicable affirmative action programs at each establishment, as applicable. See 41 CFR Chapter 60.
It became a covered federal contractor or subcontractor within the past 120 days and therefore has not yet developed applicable affirmative action programs. See 41 CFR Chapter 60.

VERIFICATION PROCESS: The verification program will allow employers to certify for all their establishments at one time, which is a significant improvement from the original proposal that required separate verifications for each establishment. The refusal to supply the required verification or the submission of false or misleading information may result in the institution of administrative or judicial enforcement proceedings. The two user guides approved by OMB provide step-by-step details of how federal contractors are to use their Affirmative Action Program Verification Interface (AAP-VI). According to the Federal Contractor User Guide, the AAP-VI will also become the “primary source for entering, tracking and submitting your Affirmative Action Programs for review by OFCCP”.

OPEN ISSUES: Although federal contractors and OFCCP have been anticipating the approval of the AAP-VI since January, there are many questions that have not yet been answered, such as by when contractors will be required to certify and when the subsequent annual certification will be required. Initially, OFCCP stated that contractors would be given 90 days to certify once the AAP-VI was approved; however, we understand that contractors may be given a minimum of180-days to certify. We also understand that contractors can expect agency training for contractors and agency staff and a Help Desk to provide compliance assistance on AAP-VI access and certification. OFCCP has already established a landing page for AAP-VI but has not yet provided any additional information.

FS TOOL AVAILABLE TO ASSIST CONTRACTORS MEET NEXT STEPS: FortneyScott has developed a tool to assist contractors in accurately verifying their legal compliance with the OFCCP’s regulations — see FortneyScott's Legal Check for OFCCP Verification ^TM .

FortneyScott attorneys will continue to monitor developments and update you as soon as OFCCP issues any additional information. Feel free to reach out to any of the FortneyScott attorneys with questions.

Issued: 9/1/2021

Eleventh Circuit Allows Limited Enforcement of Mandate

Mon, 30 Aug 2021 19:05:16 GMT

Overview: Although much of the nation's attention has turned away from Covid, the courts continue to assess the enforceability of the federal contractor vaccine mandate created by Executive Order (“EO”) 14042. After the vaccine mandate was enjoined nationwide by the United States District Court for the Southern District of Georgia in December 2021, the Federal Government’s enforcement of EO 14042 was suspended. On Friday, August 26, 2022, the United States Court of Appeals for the Eleventh Circuit narrowed the nationwide injunction, allowing the Federal Government limited ability to enforce the vaccine mandate, while also affirming the rationale for the injunction. See Georgia v. President of the United States , No. 21-14269 (11th Cir. Aug. 26, 2022).

Latest on the Federal Contractor Vaccine Mandate

In the August 26th ruling , the Eleventh Circuit affirmed that the President did not have the authority to impose a vaccine mandate under the Federal Property and Administrative Services Act (“FPASA”), but that a nationwide preliminary injunction was overbroad. Instead of a nationwide injunction, the court ruled that the preliminary injunction should be limited to the parties before the court — (1) the seven U.S. states challenging the vaccination mandate when those states are functioning as contractors; and (2) the members of the Associated Builders and Contractors.

The revised injunction in Georgia v. President of the United States is one among many injunctions limiting the enforcement of the federal contractor vaccine mandate. The federal contractor vaccine mandate was also enjoined in Alaska, Arizona, Arkansas, Florida, Iowa, Kentucky, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, South Dakota, Tennessee and Wyoming with appeals pending in the Sixth, Eighth, and Ninth Circuits, as well as a second appeal to Eleventh Circuit. An additional injunction is in place in Indiana, Louisiana, and Mississippi, but that injunction is limited to contracts between those states and the Federal Government.

The Safer Federal Workforce Task Force (‘Task Force”), which is responsible for issuing guidance on the implementation of EO 14042, has not issued updated guidance for contractors following the decision in Georgia v. President of the United States and the Task Force’s website still indicates that an injunction is in place nationwide. However, the Task Force guidance further states that the Federal Government will enforce the clause implementing EO 14042 in existing contracts in jurisdictions where it is not legally prohibited from doing so. Based on this direction, federal contractors may see new guidance from the Task Force and partial implementation of EO 14042 in the future.

FortneyScott will continue to follow this issue and provide analysis on new developments. Please contact your FortneyScott attorney or email info@fortneyscott.com for information on how these developments affect your company’s federal contractor obligations.

Vaccine Mandates, Infrastructure, and Agency Updates—Oh My!

Mon, 23 Aug 2021 16:37:37 GMT

Vaccine Mandates, Infrastructure, and Agency Updates—Oh My!

August 23, 2021- In this episode, the FortneyScott team updates the responses to the Delta variant, including the new Federal and employer vaccine mandates and delay of return to office plans; Congress’ efforts to pass far-reaching infrastructure bills; and, the latest from the EEOC, OFCCP, and other key federal agencies.

The Fourth Wave: Federal Contractors and Employers Respond to the COVID Resurgence

Mon, 09 Aug 2021 15:00:43 GMT

The Fourth Wave: Federal Contractors and Employers Respond to the COVID Resurgence

August 9, 2021- Join David, Nita, and Burt as they review President Biden’s new federal vaccination requirements and the latest developments in the legal battles surrounding vaccine mandates. The discussion explores how the new requirements affect federal contractors working at federal sites as well as the many complications and challenges contractors face in responding to the new requirements. Such issues as the duty to bargain with unions, the compensability of the time spent by employees securing vaccinations or alternative testing, and the workforce challenges posed by the tight labor market and employee resistance are all discussed. The team also discusses the varying responses of major employers across the country as they confront the spreading COVID virus while struggling to reopen.

A Conversation with EEOC Commissioner Keith Sonderling, Part 2—Artificial Intelligence

Mon, 02 Aug 2021 21:29:33 GMT

A Conversation with EEOC Commissioner Keith Sonderling, Part 2—Artificial Intelligence

August 2, 2021 - In the second episode of the two-part discussion between EEOC Commissioner Keith Sonderling and David Fortney from FortneyScott, Commissioner Sonderling discusses the latest developments in how Artificial Intelligence (AI) is being used to assist in companies’ employment decisions, challenges that AI can pose for compliance with the EEO laws, and the latest efforts by EEOC relating to AI. Includes great insights on the rapidly changing legal landscape for employers using AI to assist in hiring, promotions, layoffs, and a wide range of workforce decisions.

A Conversation with EEOC Commissioner Keith Sonderling, Part 1

Thu, 29 Jul 2021 20:59:20 GMT

A Conversation with EEOC Commissioner Keith Sonderling, Part 1

July 29, 2021 - This week, listen in on EEOC Commissioner Keith Sonderling’s discussion with David Fortney from FortneyScott in the first of an important and timely two-part podcast episode. In this first episode, Commissioner Sonderling discusses the most recent developments at the EEOC, including how the Commission operates; litigation decision-making and votes by the Commissioners; how conciliation proceeds today following the Congressional rescission of the recent conciliation regulation; and, the latest on EEOC’s Opinion Letters and Guidance on many key issues, including the COVID-19 pandemic.

Pay Equity Bulletin, Volume 6, Issue No. 7

Wed, 14 Jul 2021 20:57:49 GMT

Keeping you up to date on equal pay
developments and trends.

Biden Administration narrows the gender pay gap in the White House. Advancing gender equity and addressing the gender pay gap have been priorities for President Biden since he was elected, and the White House is attempting to lead by example. Earlier this month, the White House announced that the average salaries of men and women hired by Biden in the White House are “roughly equal,” with men earning an average salary of $94,639 and women making $93,752 on average — a difference of only 1%. In addition, 60% of new White House appointees under President Biden are female, and women now make up more than half of the White House’s senior staff. These figures represent a stark improvement over past administrations in which the average salaries of female staffers were significantly lower in comparison to their male counterparts. To aid in these efforts to achieve pay equity among White House staff, the Biden Administration established a salary structure that includes pay bands to ensure that “those completing similar work are paid the same” regardless of their gender or race. The White House has also taken additional steps, including hiring a chief diversity and inclusion director and implementing training for hiring managers regarding inclusive practices and equitable hiring.

Democratic Senators introduce bill demanding equal pay for U.S. Women’s Soccer Team. In June, Senator Joe Manchin (D-W. Va) and Senator Maria Cantwell (D-Wash.) introduced legislation that would block federal funding for the 2026 World Cup, set to be jointly hosted by the U.S. with Mexico and Canada, unless the U.S. Soccer Federation agrees to provide equal pay to the men’s and women’s national teams. The U.S. Women’s National Team (USWNT) has been engaged in a long-running and highly publicized legal dispute with the U.S. Soccer Federation regarding their pay, arguing that they are paid significantly less than players on the men’s team in violation of equal pay laws. If passed, this legislation would greatly increase the pressure on the U.S. Soccer Federation to accede to the USWNT’s demands. However, similar legislation was introduced in 2019 but failed to advance in the Senate, and the new bill seems destined to meet a similar fate. No GOP senators have expressed support for the bill, making it unlikely that Democrats can secure the 60 votes necessary to avoid a filibuster.

Worley Group settles pay bias claims with DOL. In June, the DOL’s Office of Federal Contract Compliance Programs (OFCCP) announced that Worley Group, an engineering solutions company, has agreed to pay $1,000,000 in order to resolve the agency’s claims of wage discrimination against female, Black, and Hispanic employees at Worley’s Houston location. The OFCCP’s claims arose from a 2017 compliance review of a different contractor, Jacobs Engineering, which had controlled the Houston establishment at the time. However, in 2019, Worley assumed control of the establishment, and in doing so assumed responsibility for the OFCCP’s review. After Worley assumed control of the Houston establishment, the OFCCP notified the company that it had made findings of significant pay disparities impacting more than 40 female, Black, and Hispanic employees. The allegations dated back to 2016, well before Worley took control of Jacob Engineering’s operations. Although Worley denied the allegations, it agreed to the settlement to avoid further litigation with the agency. Under the agreement, Worley will pay $500,000 in back wages and interest to 42 affected employees identified by the OFCCP. Worley will also allocate $500,000 for salary adjustments in the future. In addition to the monetary settlement, the agreement also requires Worley to provide training to employees who oversee compensation.

The Business Case for DE&I: How Effective DE&I Programs Help the Employer’s Bottom Line

Mon, 12 Jul 2021 14:14:50 GMT

The Business Case for DE&I: How Effective DE&I Programs Help the Employer’s Bottom Line

July 7, 2021 - Consuela Pinto from FortneyScott and Rick Wade, Senior Vice President of Strategic Alliances and Outreach from the U.S. Chamber of Commerce, discuss the Chamber’s Equality of Opportunity Initiative to develop real, sustainable solutions to close race-based opportunity gaps in six key areas: education, employment, entrepreneurship, criminal justice, health, and wealth. The discussion explores how DE&I efforts focused on employment achieve greater results when they are part of a broader, multi-faceted approach to DE&I by the employer.

Listen now!

OFCCP Issued New CSAL

Brad@automationlinks.com (Brad Smith) — Thu, 01 Jul 2021 18:20:17 GMT

On Thursday, July 1, 2021, OFCCP issued a new Corporate Scheduling Announcement List (CSAL) . The CSAL covers 750 establishment-based full compliance reviews, Corporate Management Compliance Reviews (CMCE), Functional Affirmative Action Program (FAAP) Reviews, and University Reviews.

In OFCCP’s press release, it states that the CSAL notification provides contractors with at least 45-days advance notice to prepare for the compliance evaluations and that it is still publishing its methodology for developing the list. Contractors can also find FAQs here if they have additional questions.

Pay Data Collection and Disclosures

Mon, 28 Jun 2021 14:30:26 GMT

Pay Data Collection and Disclosures

June 28, 2021 - FortneyScott’s Consuela Pinto, Burt Fishman, and David Fortney discuss how employers are navigating the rapidly changing landscape of pay data disclosures, ranging from the government compelled disclosures in EEO-1 reports and whether those obligations will be reinstated, to voluntary disclosures by employers and the escalating number of FOIA requests DOL has received.

Biden Signs Law Proclaiming Juneteenth National Independence Day a Federal Holiday

Brad@automationlinks.com (Brad Smith) — Sat, 19 Jun 2021 00:05:39 GMT

FORTNEYSCOTT CLIENT ALERT

Late on Thursday, June 17th President Biden signed the law making June 19th—Juneteenth National Independence Day—a federal holiday effective today. Juneteenth commemorates June 19, 1865 which was the day that Union Army Maj. Gen. Gordon Granger rode into Galveston, Texas, and told slaves of their emancipation.

OSHA Issues Emergency COVID-19 Standard for Health-Care Settings

Brad@automationlinks.com (Brad Smith) — Fri, 18 Jun 2021 19:48:52 GMT

FORTNEYSCOTT CLIENT ALERT

After months of delay during which the threat posed by the COVID-19 pandemic decreased, the Occupational Health and Safety Administration (OSHA) issued an Emergency Temporary Standard (ETS) on June 10, 2021. Once envisioned as a sweeping regulation covering most workplaces, the ETS was limited to healthcare employers. OSHA created a flowchart to assist healthcare employers to learn if their workplace is covered. OSHA also issued a Fact Sheet summarizing the ETS . A full copy of the ETS is available here .

The ETS requires, inter alia, that covered employers (i) develop and implement a COVID-19 plan (in writing if more than 10 employees) which includes a designated safety coordinator; (ii) provide certain exposed employees with N95 respirators or other personal protective equipment; (iii) provide workers with paid time off to get vaccinated and to recover from side effects; and (iv) permit employees who have COVID-19 or who might be contagious the opportunity to work remotely or otherwise be separated from other workers if possible, or be

given paid time off up to $1,400 per week.

The ETS is a proposed permanent standard that should be ‘converted’ into a permanent standard within six months. An ETS may be challenged in a U.S. Court of Appeals and this ETS may face such a challenge.

The ETS is effective immediately upon publication in the Federal Register. Covered employers must comply with most provisions within 14 days, and with provisions involving physical barriers, ventilation, and training within 30 days.

In addition, OSHA also updated its previously issued COVID-19 guidance , which is applied to all employers, by adding the CDC’s recent recommendations regarding expanded opportunities for fully vaccinated people and addressing protections for workers who are unvaccinated or are otherwise deemed to be at high risk of infection or serious illness.

Hearing from the Front Lines: What Providence Healthcare Learned During the Pandemic

Brad@automationlinks.com (Brad Smith) — Mon, 14 Jun 2021 18:32:28 GMT

Hearing from the Front Lines: What Providence Healthcare Learned During the Pandemic

In Episode 13, Nita discusses how Providence, the 3rd largest healthcare organization in the United States, dealt with the pandemic using its newly re-established DE&I program and how its pandemic experience impacted the organization’s thinking about work moving forward.

Joining Nita are special guests Denise Bowen, Providence’s VP HR Strategy and Solutions, and Brittany Fisher, Providence’s Executive Director, Affirmative Action & Caregiver DEI.

Listen now!

Pay Equity Bulletin, Volume 6, Issue No. 2

Brad@automationlinks.com (Brad Smith) — Thu, 10 Jun 2021 01:10:56 GMT

Keeping you up to date on equal pay
developments and trends.

Paycheck Fairness Act stalls in Senate. On June 8, Senate Republicans blocked the Paycheck Fairness Act from advancing to the Senate floor for consideration. The bill, which was aimed at closing the gender pay gap, needed 60 votes to move forward, but it was voted down 49-50, with all but one Republican Senator opposing the legislation. The bill passed the House of Representatives in April; however, its failure to advance in the Senate was expected as Republican lawmakers had publically opposed the bill. The legislation sought to materially amend the Equal Pay Act by significantly narrowing employers’ primary defense to pay discrimination claims – that an identified pay disparity is the result of a factor “other than sex.” If passed, the bill would have required employers to prove that any disparity was due to “a bona fide factor other than sex, such as education, training, or experience.” The Paycheck Fairness Act would also have instituted a national pay transparency requirement and a nationwide ban on requests for prior salary history of applicants. Republican lawmakers opposing the legislation argued that it would essentially eliminate an employer’s ability to differentiate employees' pay based on employees’ skills, qualifications, or experience without being subjected to litigation.

Women suing Google for pay discrimination win class-action status. On May 27, former female employees of Google won their bid for class-action status in a gender-pay discrimination lawsuit against the tech giant brought on behalf of nearly 11,000 women. The lawsuit, which was filed in California state court in San Francisco, alleges that Google pays women less than men who do the same jobs in violation of California’s Equal Pay Act. Specifically, the plaintiffs claim that they were put into lower career tracks which resulted in them receiving nearly $17,000 less per year than similarly situated male colleagues. Plaintiffs also claim that Google had a policy of asking applicants for prior salaries, which violated California’s Unfair Competition Law and perpetuated lower pay for women employees. The plaintiffs now seek more than $600 million in damages from Google.

The decision to certify the class claims against Google is similar to a ruling last year which awarded class status in a pay discrimination case against Oracle and may represent a trend in how pay discrimination claims are being pursued. Prior to these decisions, female employees at Twitter and Microsoft had failed to win class status for claims brought in federal court under Title VII. However, the plaintiffs in the Google and Oracle cases benefited from California’s employee-friendly Equal Pay statute which compares jobs that are “substantially similar", rather than the narrower “substantially equal” standard used for federal claims. These recent successes may lead to more pay discrimination claims being pursued in California, as well as other states which have enacted employee-friendly pay laws.

Colorado’s new pay transparency law overcomes early challenge, remains in effect. The U.S. District Court for the District of Colorado denied a request for a preliminary injunction halting Colorado’s new pay transparency law. Colorado’s Equal Pay for Equal Work Act, which went into effect on January 1, 2021, is aimed at closing the pay gap and requires Colorado employers to issue compensation ranges for all job postings, including internal promotions. These requirements also apply to out-of-state employers with Colorado employees. Employers who fail to comply with the requirements will be subject to civil fines up to $10,000. In December of 2020, prior to the law going into effect, the Rocky Mountain Association of Recruiters filed a lawsuit claiming that the law’s pay transparency requirements are unconstitutional. The plaintiff sought a preliminary injunction halting the pay transparency requirements arguing that it unduly burdened employers. However, in denying the request the Court found that the plaintiff had failed to show any undue burden on employers and that the law is reasonably related to the state’s public interest in reducing the gender-based wage gap. Colorado is one of several states, including California and Maryland, that have passed similar laws aimed at closing wage gaps, and lawmakers in a number of other states are already considering legislation that would impose pay transparency requirements like those in Colorado. The court’s decision to deny this early challenge to the Colorado statute may lend support to those lawmakers in other states pushing for similar requirements.

August 2, 2021 - Nashville, TN - NILG Conference

Brad@automationlinks.com (Brad Smith) — Wed, 09 Jun 2021 10:30:41 GMT

Elizabeth Bradley has been selected to present with Paul White of Resolution Economics at the upcoming NILG 2021 National Conference in Nashville, TN. They will be presenting on Intersectionality in Employment Discrimination: What It Is & How to Analyze It on Monday, August 2, 2021 at 4:15 pm – 5:15 pm. You can view their session either in-person or via live broadcast.

Intersectionality – the concept of multiple characteristics (race, gender, age, disability, veteran) overlapping to contribute to systemic discrimination – is gaining increased focus by federal enforcement agencies (notably OFCCP) and plaintiff’s counsel. During this session, attendees will gain an understanding of:

The concept of intersectionality in workplace discrimination;
How federal agencies and private plaintiffs are using intersectionality to establish discrimination claims; and
Best practices for analyzing data to address intersectionality concerns.

Click here for more information.

COVID-19 Guidelines on Vaccinations and Its Impact on Return-to-Work

Brad@automationlinks.com (Brad Smith) — Tue, 08 Jun 2021 15:20:14 GMT

COVID-19 Guidelines on Vaccinations and Its Impact on Return-to-Work

FortneyScott’s latest episode explores EEOC’s new latest COVID-19 Guidelines on vaccinations and their impact on return-to-work. Employers may be surprised by EEOC’s take on vaccination status confidentiality.

EEOC Issues Long-Awaited Return to Work Guidance

Brad@automationlinks.com (Brad Smith) — Sat, 29 May 2021 03:20:20 GMT

The Equal Employment Opportunity Commission (EEOC) updated its COVID-19 Technical Assistance . In its long-awaited return to work guidance for employers, EEOC answered the following employer questions:

Employers can offer incentives to encourage employees to get the COVID-19 vaccine. The federal EEO laws do not limit employers’ ability to offer incentives to employees who are vaccinated on their own by a third party provider. However, if the employer is administering the vaccination, the incentives must not be coercive.
Employers can require all workers physically entering a workplace to be vaccinated so long as they comply with the reasonable accommodation requirements of Title VII and the ADA.
Employers can ask employees if they have been vaccinated and require documentation or other confirmation of vaccination, but the ADA requires that employers keep vaccination information confidential.
Employers can require employees who are not vaccinated to wear a face mask upon entering the workplace and work at a social distance from coworkers or non-employees so long as they comply with the reasonable accommodation provisions.

FortneyScott will be discussing the EEOC’s guidance on the next episode of the DC Insider - Employer Update Podcast . Reach out to any FortneyScott attorney on what this new guidance means for employers.

National Academies of Science Panel to Evaluate the Quality of Compensation Data Collected from U.S. Employers by the Equal Employment Opportunity Commission through the EEO-1 Form Public Meeting 2

Brad@automationlinks.com (Brad Smith) — Fri, 28 May 2021 16:26:47 GMT

On Friday, May 28, 2021, FS attorney David Fortney was asked to speak to the National Academies of Science (NAS) panel reviewing EEO-1 Report Component 2 on employers’ view of Component 2.

Employers Reopening Plans: The Impact of the Federal Agencies

Mon, 24 May 2021 14:32:47 GMT

Employers Reopening Plans: The Impact of the Federal Agencies

In Episode 11, David and Nita sit down with FortneyScott colleague Leslie Silverman to discuss the EEOC hearing on COVID-19 and civil rights, the implications of the latest CDC guidance announcement regarding masks, and how that will affect employer reopening plans.

Significant Changes During the First 100 Days of the Biden Administration

Brad@automationlinks.com (Brad Smith) — Fri, 14 May 2021 03:35:02 GMT

During the first 100 days of the Biden-Harris Administration there have been significant changes in Congress and the Federal agencies affecting employers and the workplace. FortneyScott has closely monitored these changes and prepared detailed resources to assist you and your organization in staying on top of these developments. Please take advantage of the practical information that you can gain from:

The DC Insider Report — Employers Prepare for Change as the Biden-Harris Administration Begins (May 10, 2021) provides focused summaries of the key developments and their impact on employers’ interests, including a summary chart of the new Executive Orders and Guidances. The DC Insider Report can be downloaded here .

Additional insights are available on FortneyScott’s podcast, the DC Insider—Employer Update™ . The podcasts include a ten-part series which reviews and analyzes the key developments during the first 100 days of the Biden Administration that affect employers. Following the first 100 days of the new Administration, the DC Insider—Employer Update™ podcasts are continuing to provide the latest Washington, DC developments. The podcast can be downloaded and subscribed to on Apple Podcasts , Google Podcasts , Spotify , and other podcast services.

Please contact us or any of the FortneyScott attorneys for more information on any of these developments.

EEOC’s First Meeting Under the Biden Administration on “Workplace Civil Rights Implications of the COVID-19 Pandemic”

Brad@automationlinks.com (Brad Smith) — Tue, 11 May 2021 03:41:16 GMT

On April 28, 2021, the Equal Employment Opportunity Commission (“EEOC”) held the first Commission meeting under the Biden Administration, a public hearing on “Workplace Civil Rights Implications of the COVID-19 Pandemic.” The primary focus of the hearing was on the pandemic’s devastating impact on the U.S. workforce. Twelve panelists testified about pandemic-related losses and amplified inequities suffered by people of color, Native Americans, people with disabilities, immigrants, older workers, and women, and by specific segments of the workforce, such as essential front-line and migrant workers. The panel also included the employer’s perspective and discussed the pandemic-related issues that employers are currently grappling with and are looking to the Commission for guidance.

The key takeaways from the wide-ranging hearing are:

EEOC’s priority issues have been displaced and delayed. The pandemic’s disproportionate impact on frontline workers and protected groups should be the primary driver of EEOC guidance, outreach, and enforcement priorities during the Biden Administration.
Employers should anticipate an increase in charges and Commission focus on hiring, accommodation, harassment, retaliation, and compensation disparity, especially as these issues affect workers most severely impacted by the pandemic.
Employers need the Commission to move quickly to issue new COVID-19 Vaccine-related guidance that helps clarify when and how employers can lawfully require vaccinations or offer vaccination incentives. In particular, EEOC would end confusion and boost vaccination rates by making clear that in most instances the ADA’s wellness provisions do not prevent an employer from offering a range of vaccination incentives, including financial incentives, and by providing further guidance on this issue.

While the Republican Commissioners continue to hold the majority of the Commission until mid-2022, employers should be on notice that the Commission could forge new ground beyond COVID-19 issues. Commissioner Sonderling and Commissioner Lucas expressed an interest in taking on challenging issues such as scrutinizing the role of AI during employee selection and Commissioner Lucas raised the possibility of revising Older Worker Benefit Protection Act regulations to provide greater transparency to older workers laid off during a RIF.

A more complete review of the issues raised during the hearing

is available here .

The Regulatory Policies of President Biden's First 100 Days

Brad@automationlinks.com (Brad Smith) — Mon, 10 May 2021 15:13:52 GMT

The Regulatory Policies of President Biden's First 100 Days

In this 10th Podcast in the 10-part series on the Biden-Harris Administration’s first 100 days, the FortneyScott attorneys discuss President Biden’s nominees and the key developments, new policies and regulations being implemented by the key Federal agencies, including OSHA, Wage and Hour, OFCCP, EEOC, and the NLRB, and what changes employers will likely see in the future.

Workplace Priorities in President Biden’s Agenda and the Key Pending Bills in Congress

Brad@automationlinks.com (Brad Smith) — Mon, 03 May 2021 15:12:16 GMT

Workplace Priorities in President Biden’s Agenda & Key Pending Bills in Congress

In this 9th episode, the FortneyScott attorneys discuss President Biden’s speech to Congress; the President’s American Rescue, Jobs and Family Plans; and the pending bills in Congress, including the Paycheck Fairness Act and the Equality Act.

EEO-1 Report Portal Open

Brad@automationlinks.com (Brad Smith) — Mon, 26 Apr 2021 15:30:00 GMT

The EEOC's EEO-1 Report portal is open, and EEO-1 Report filers can get more information here .

The Impact of the Chauvin Verdict and Updates on the Federal Agencies

Brad@automationlinks.com (Brad Smith) — Mon, 26 Apr 2021 15:10:25 GMT

The Impact of the Chauvin Verdict and Updates on the Federal Agencies

This 8th Podcast focuses on the response to the Chauvin verdict, the puzzling inactivity of the federal agencies on employment issues, and then takes a deep dive into the OFCCP’s Affirmative Action Verification process.

Returning to Work, Vaccines, & Resistance

Brad@automationlinks.com (Brad Smith) — Mon, 19 Apr 2021 15:06:08 GMT

Returning to Work, Vaccines, & Resistance

This 7th Podcast reviews the many issues facing employers as they struggle to re-open their businesses. Subjects ranging from the challenges of a “hybrid” workplace to rising COVID infections, vaccination mandates, and employees who either don’t want to be vaccinated or don’t want to return will be discussed.

The American Rescue Plan Act of 2021

Thu, 15 Apr 2021 21:30:00 GMT

The American Rescue Plan Act of 2021 (ARPA) provides a 100% federal subsidy for COBRA premiums from April 1 through September 30, 2021, for certain “assistance-eligible individuals” (AEIs). The U.S. Department of Labor’s Employee Benefits Security Administration (EBSA) today issued Frequently Asked Questions under the Consolidated Omnibus Budget Reconciliation Act (COBRA) and revised COBRA model notices . Plan administrators can use these model notices to notify plan participants and beneficiaries of their rights under COBRA and qualified beneficiaries of their rights to elect COBRA.

The American Jobs Plan and Its Impact on Employers

Brad@automationlinks.com (Brad Smith) — Mon, 12 Apr 2021 15:04:33 GMT

The PRO Act and the Equality Act, and the Impact of the Filibuster Rule

This 5th Podcast provides a rundown of the key developments from the past week, focusing on Congress and the pending PRO Act and Equality Act, and the impact of the Senate’s filibuster rule on their passage in the Senate.

The PRO Act and the Equality Act, and the Impact of the Filibuster Rule

Brad@automationlinks.com (Brad Smith) — Mon, 05 Apr 2021 15:02:39 GMT

The PRO Act and the Equality Act, and the Impact of the Filibuster Rule

April 1, 2021 - NOVUS Law Firm & FortneyScott’s Webinar: Campus Labor Relations: Using Lawful Race-Conscious Practices in Admissions, Employment, and Other Institutional Decision-Making

Brad@automationlinks.com (Brad Smith) — Thu, 01 Apr 2021 10:32:05 GMT

In this Winter 2021 series, Natasha Baker, Esq., Elizabeth Bradley, Esq., and David S. Fortney, Esq. will discuss the potential labor and employment law changes that colleges and universities will face under the Biden/Harris Administration.

This week’s topic: Campus Labor Relations: Using Lawful Race-Conscious Practices in Admissions, Employment, and Other Institutional Decision-Making. The webinar will be held Thursday, April 1, 2021 at 2:00 PM EST.

District of Columbia Displaced Workers Right to Reinstatement and Retention Act of 2020

Brad@automationlinks.com (Brad Smith) — Tue, 30 Mar 2021 17:53:00 GMT

In 2021, the D.C. Council amended its displaced workers law to include special provisions for those workers separated because of the COVID pandemic.

Beginning February 1, 2021, and as positions become available , employers NOT in the hospitality industry (bars, restaurants, clubs, nightclubs, hotels), “shall offer each eligible employee reinstatement to the employee’s previous position or to a position performing the same or substantially similar duties, and that requires essentially the same skills, as those performed by the eligible employee before the eligible employee ceased working for the contractor or at the covered establishment.”

The most important exception is that this law does NOT apply to employees classified as exempt executive, administrative, or professional employees under the Fair Labor Standards Act. Workers who would otherwise have been terminated for cause are also not eligible.

The job offer must be in writing and delivered by mail to the last known address of the employee and remain open for at least 3 calendar days from the date of the offer. If accepted, the employee has 7 days to return to work.

There is no requirement that all former employees are reinstated or that either compensation or available hours be the same for reinstated employees. If several employees are eligible for reinstatement, simultaneous offers may be made and available jobs offered on the basis of seniority.

If there is a change of control of the business, a new employer can impose a fixed, 90-day probationary period before deciding to retain an eligible employee.

Willful violators are subject to a make-whole remedy plus treble damages plus compensatory or punitive damages plus reasonable attorney’s fees.

OFCCP announced today that the new VEVRAA Hiring Benchmark is 5.6 percent effective March 31, 2021

Brad@automationlinks.com (Brad Smith) — Tue, 30 Mar 2021 16:04:00 GMT

The Hiring Benchmark Requirement

Contractors required by the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA) to develop a written affirmative action program (AAP) must also establish a hiring benchmark for protected veterans every year, or adopt the national benchmark provided by the Office of Federal Contract Compliance Programs (OFCCP) each year, as part of their AAP update. Under either approach, contractors must compare the percentage of hires who are protected veterans in each of their written AAPs to the hiring benchmark set for that AAP. Contractors should use the result of this comparison when assessing the effectiveness of their veteran outreach and recruitment efforts.

Methods for Establishing a Hiring Benchmark

Contractors can choose one of the two following options for establishing the required hiring benchmark for each of their written AAPs.

Option I:
Adopt the National Percentage of Veterans in the Civilian Labor Force

Option II:
Develop Individualized Hiring Benchmark

Important Terms

Hiring Benchmark: The percentage of total hires who are protected veterans that the contractor seeks to hire in the following AAP year.

Civilian Labor Force (CLF): The sum of people who are employed and those who are unemployed but looking for work in a specified area, e.g., nationwide or in a particular state.

Employment Service Delivery System (ESDS): An employment service office in a state or locality that provides labor exchange services, including employment, training, and placement services, as part of the national One-Stop/American Job Center service delivery network established by the states.

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Biden Administration Confirmations and Regulatory Update

Brad@automationlinks.com (Brad Smith) — Tue, 30 Mar 2021 15:00:05 GMT

Biden Administration Confirmations and Regulatory Update

In the fourth episode, we discuss the latest on the confirmation of DOL Secretary Walsh and key nominations, and updates on the rollback of Trump-issued regulations and the issuance of new regulations governing the workplace.

Burton Fishman on Union Activity in the Tech Sector Panel Webinar

Brad@automationlinks.com (Brad Smith) — Tue, 30 Mar 2021 03:51:55 GMT

Burton Fishman is part of the Union Activity in the Tech Sector panel sponsored by the Employment Law Alliance (ELA) on Thursday, April 1, 2021, at 2:00 PM ET.

Amazon, Google, and Medium are the most recent examples of tech companies faced with unionization efforts. While each situation is different, there is a common denominator: many of these employees don’t feel their voices are heard or taken seriously.

Unlike traditional “bread and butter” issues typically found in union campaigns, much of the emphasis in these efforts has been on social justice, workplace respect and equality, and the company’s mission and priorities.

With the assistance of social media and great pressure being exerted on management by politicians and investors who want these companies to at least remain neutral, unions have an opportunity for the first time in generations to make significant headway in their effort to organize workers across the nation. Perhaps most importantly, both Millennials and Gen Z are increasingly receptive to the idea of organizing and collective bargaining.

This webinar will provide a national perspective on the following key issues:

The workplace issues driving union organizing
How the pandemic and remote work is exacerbating this trend
The advent of “non-traditional” unions and employee associations
The impact of the Biden administration, social media, and investors on these efforts
Proactive steps to implement right now to minimize the risk of unionization

Please click the link below in order to register for this event:

https://event.on24.com/eventRegistration/EventLobbyServlet?target=reg20.jsp&partnerref=AttyShare&eventid=3074681&sessionid=1&key=6CAA7704B9B8C691C4901BC9A1B274F8&regTag=&V2=false&sourcepage=register

President Biden Signs Executive Order

Brad@automationlinks.com (Brad Smith) — Tue, 23 Mar 2021 14:56:26 GMT

President Biden Signs Executive Order Guaranteeing Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity

On Monday, March 8, 2021, International Women’s Day, President Biden issued an Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity - announcing the Biden-Harris administration policy that “all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violation, and including discrimination on the basis of sexual orientation or gender identity.”

The EO directs the Department of Education (DoE) to review all existing regulations, orders, guidance documents, policies, and any other similar agency actions that are inconsistent with this policy. Specifically, the EO calls out a Trump Administration rule that narrowed circumstances that triggered an institution’s obligations to respond to allegations of potential sexual misconduct; heightened the evidentiary standard requiring clear and convincing evidence; limited the application of Title IX to some off-campus conduct and activity that occurs during study abroad programs; and requires live hearings and cross-examination of the victim.

The DoE must complete this review within 100 days. To hear more about this EO and anticipated results, please join the Novus/FortneyScott Higher Education Webinar on April 1, 2021, at 2 PM ET.

The New VEVRAA Verification Coming Soon

Brad@automationlinks.com (Brad Smith) — Tue, 23 Mar 2021 14:50:21 GMT

FortneyScott Client Alert:

The New VEVRAA Verification Coming Soon

OFCCP recently launched a landing page for its upcoming Affirmative Action Verification Interface . Within the next 90-120 days, Contractors must be prepared to certify that they have AAPs in place for each establishment or FAAP. Although we do not yet have the details of the certification, it likely will be subject to the penalties of perjury. Contractors also may be required to upload AAPs.

Key Takeaway : Your AAPs should be finalized promptly to enable your organization to certify good faith compliance, subject to the penalties of perjury.

We are advising many clients on these matters to enable them to meet these pending changes. Please contact your FortneyScott attorney with questions or to receive additional information.

Biden Administration Focuses on the Agencies – OSHA, Wage & Hour, OFCCP, and More

Mon, 22 Mar 2021 19:56:44 GMT

In our third podcast covering the first 100 days of the Biden Administration, we unpack the American Rescue Plan passed by Congress and signed by President Biden and what it means for employers. The President now has achieved a major campaign promise--to provide comprehensive COVID relief, including individual stimulus checks, expanded paid sick, and support for extended unemployment benefits, vaccinations and state and local governments. We also discuss the latest on key bills that employers need to know – there is pending legislation already passed by the House that substantially reforms the laws relating to union organizing, EEO, and voting rights. Finally, we review the Administration’s latest personnel updates and what this means for employers.

The New VEVRAA Coming Soon

Wed, 17 Mar 2021 16:32:00 GMT

Key Takeaway : Your AAPs should be finalized promptly to enable your organization to certify good faith compliance, subject to the penalties of perjury.

We are advising many clients on these matters to enable them to meet these pending changes. Please contact your FortneyScott attorney with questions or to receive additional information.

The DC Insider-Employer Update Podcast is Now Live

Brad@automationlinks.com (Brad Smith) — Mon, 15 Mar 2021 14:52:38 GMT

Tune Into Our Podcast

The DC Insider – Employer Update™ brings you insights and expertise from Washington, DC attorneys at FortneyScott. Each episode provides key updates and analyses employers need to know to stay on top of developments affecting the workplace.

First 45 Days of the Biden Administration

Brad@automationlinks.com (Brad Smith) — Mon, 08 Mar 2021 14:40:22 GMT

First 45 Days of the Biden Administration

Debut episode introduces David Fortney, Burt Fishman, and Nita Beecher, who debrief employers on the first 45 days of the Biden Administration.

FortneyScott Client Alert: President Biden Signs Executive Order Guaranteeing Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity

Sun, 07 Mar 2021 21:15:00 GMT

The DoE must complete this review within 100 days. To hear more about this EO and anticipated results, please join the Novus/FortneyScott Higher Education Webinar on April 1, 2021, at 2 PM ET.

President Biden signs the American Rescue Plan bill and secures additional confirmations

Brad@automationlinks.com (Brad Smith) — Sun, 07 Mar 2021 14:43:22 GMT

President Biden signs the American Rescue Plan bill and secures additional confirmations

In our second podcast covering the first 100 days of the Biden Administration, we unpack what the American Rescue Plan passed by Congress and signed by President Biden means for employers.

Biden Administration focuses on the agencies – OSHA, Wage & Hour, OFCCP and more

Brad@automationlinks.com (Brad Smith) — Sat, 06 Mar 2021 14:46:38 GMT

Biden Administration focuses on the agencies – OSHA, Wage & Hour, OFCCP and more

FortneyScott Client Alert: OFCCP Eliminated Focused Reviews from Latest CSAL List

Brad@automationlinks.com (Brad Smith) — Mon, 01 Mar 2021 20:46:00 GMT

On March 2, 2021, OFCCP announced that it amended the September 11, 2020 Corporate Scheduling Announcement List (CSAL) by removing all establishments selected to receive focused reviews and compliance checks. The agency stated that those CSALs which scheduled establishment-based compliance reviews, CMCE reviews, FAAP reviews, and university compliance reviews will proceed. The amended CSAL list can be found here and the agency’s amended methodology is here . You can find OFCCP’s scheduling list resources here .

If you have any questions as to the status of your CSALs, please reach out to your FortneyScott attorney or contact FortneyScott at info@fortneyscott.com .

Jennifer Abruzzo Tapped to be General Counsel of the NLRB

Tue, 16 Feb 2021 18:07:00 GMT

President Joe Biden has nominated Jennifer Abruzzo, an attorney for the Communications Workers of America, to be general counsel of the National Labor Relations Board, further cementing the Administration’s ties to the labor movement. A contentious nomination process is expected as a result of Biden’s terminating the sitting general counsel, Peter Robb.

Biden Administration’s Focus on Social Justice is Certain to Impact Workplace Policies

Fri, 29 Jan 2021 15:27:00 GMT

In his first week in office, President Biden took immediate steps to address a core pillar of his Administration’s agenda – dismantling policies and practices that promote persistent and systemic social injustice. As an initial step, the President focused his sights on federal policies and programs that impact Americans broadly and federal employees specifically.

Executive Order 13985, Advancing Racial Equity and Support for Underserved Communities , repeals Executive Order 13950, known as President Trump’s “Anti-Bias Training” and requires federal agencies to evaluate whether their programs and policies “perpetuate systemic barriers to opportunities and benefits for people of color and other underserved groups.” Agency heads are to deliver an action plan based upon their findings within 200 days to address barriers to equal opportunity. The Administration’s goal is to “root out systemic racism” and barriers that have perpetuated discrimination and the denial of civil rights and equality to underserved communities including individuals of color and others who have been marginalized.

Executive Order 13988, Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation , directs agency heads, in consultation with the Attorney General, to review all of their policies, programs, and regulations to ensure they are consistent with equal treatment and prohibit sex discrimination broadly including that based upon sexual orientation and gender identity. If Agency policies, guidelines, and programs are found to be discriminatory, agencies will be asked to revise or rescind such documents and implement guidelines that prohibit discrimination based upon sex.

Executive Order on Enabling All Qualified Americans to Serve Their Country in Uniform repealed President Trump’s March 23, 2018, and August 25, 2017, Presidential Memoranda banning transgendered individuals from serving in the U.S. military.

While these Executive Orders focus on federal agencies’ policies and programs, they serve as a preview for employers. The EEOC and OFCCP are primed to tackle issues of systemic discrimination, in all its forms, in the workplace. Both newly appointed EEOC Chair Charlotte Burrows and OFCCP Director Jenny Yang are long-time worker advocates with decades of experience enforcing workplace civil rights laws.

COVID Relief Bill Extends, Ends Benefits

Wed, 30 Dec 2020 20:28:00 GMT

Although the focus of attention regarding the COVID Relief bill has been on the amount of one-time checks, other provisions of the new law may have long-term impact.

The Pandemic Unemployment Assistance program (PAU), which provides unemployment assistance to independent contractors, gig workers, and self-employed, and the Pandemic Emergency Unemployment Compensation program (PEUC), which funds states to provide up to 13 weeks unemployment benefits to those who have already used all available state benefits, have been extended.

However, the paid sick and family leave benefits provided by the Families First Coronavirus Response Act (FFCRA) have not been extended under the new bill. As of January 1, 2021, employers are not required to provide these supplemental benefits. However, the new act is designed to incentivize employers to use tax credits to underwrite a continuation of these or similar benefits.

Employers should quickly decide if and/or how they intend to utilize this opportunity and communicate it to employees, especially if an employer aims to end the special paid sick and family leave benefits.

Employers should be aware that among the goals of the Biden Administration is an extension of the FFCRA with all changes made retroactive to January 1, 2021. If such a retroactive extension is enacted, employers who stopped offering FFCRA benefits may be faced with having to make back-pay or time-off awards.

DOL Allows Electronic Postings, Telemedicine for FMLA

Tue, 29 Dec 2020 16:25:00 GMT

Responding to the realities of remote work during the COVID-19 pandemic, the Department of Labor has issued two new guidances that permit employers greater flexibility in using electronic communications to meet posting and FMLA requirements.

In FIELD ASSISTANCE BULLETIN No. 2020-7 , DOL permits employers to meet its various posting obligations (FLSA, DB, etc.) by publishing notices on an intranet, via the internet, or by email (or other forms of electronic communications), if employees have routine access to such materials.

In FIELD ASSISTANCE BULLETIN No. 2020-8 , DOL sets out the criteria and procedures for using telemedicine as the equivalent of a doctor’s visit for FMLA purposes.

Federal Court Enjoins Enforcement of EO 13950 Against Federal Contractors

Tue, 22 Dec 2020 22:03:00 GMT

On December 23, 2020, US District Court Judge Beth Labson Freeman (N.D.Cal) granted a nationwide injunction against enforcement of President Trump’s Executive Order 13950, Combating Race and Sex Stereotyping .

The plaintiffs, a group of nonprofit organizations that provide anti-racism and anti-LBGT bias training, argued that the EO required them to censor or stop training sessions fundamental to their mission of “breaking down barriers” and that the order was so vague that it did not give notice as to what speech is actually prohibited. The court found that the EO’s restrictions on contractors and grantees likely violated the Constitution’s free speech and due process protections. The injunction does not affect the portion of the EO that prohibits federal agencies and the military from training their personnel about issues such as “white privilege,” “critical race theory,” and other “offensive and anti-American race and sex stereotyping and scapegoating.”

Trump Administration Rushes to Finish – OFCCP Unveils Promotions, Accommodations Landing Pages, DOL Issues Final Tip-pooling Rule

Tue, 22 Dec 2020 18:12:00 GMT

On Tuesday, December 22, OFCCP unveiled its latest focused review landing pages for promotions and accommodations . The agency has submitted proposed scheduling letters for these new focused reviews to OMB for approval. Those proposed scheduling letters would require federal contractors to submit employment activity and employee compensation data which is currently not required for Section 503 and VEVRAA focused reviews. OFCCP had originally sought both employment activity and employee compensation for Section 503 and VEVRAA focused reviews but the final letters eliminated those requirements. Otherwise, these letters appear to have only minor working changes.

OFCCP on December 23 published its proposed construction scheduling letter in the Federal Register . Federal contractors have until February 22, 2021, to comment on the proposed letter.

The Department of Labor announced its final tip-pooling rule on December 22. The rule reverses the tip-pooling rule issued by the Obama Administration which limited tip-pooling to wait staff. In 2017, the DOL issued a controversial revision of the rule which the DOL’s IG recently found “did not demonstrate” the agency “followed a sound process” in proposing the rule. The new rule which will become final 60 days after being published in the Federal Register permits employers to classify more employees as tipped employees allowing them to be paid the lower minimum wage of $2.13. The rule reverses the Obama rule that tipped employees who spent 20 percent of their time on non-tipped tasks be paid full minimum wage of $7.25 for that time. The rule also codified the requirement that employers including supervisors and managers not share in tip-pooling.

Finally, the rule would allow employers to establish a “nontraditional” tip pool for cooks, dishwashers, and other employees if the employer pays its tipped employees standard minimum wage.

In addition to private legal challenges to this rule, the Biden Administration is expected to try to reverse many of the “midnight” regulations issued by the Trump Administration.

Congress Passes a COVID Relief Bill

Sun, 20 Dec 2020 19:55:00 GMT

As the Christmas holiday neared and a government shutdown loomed, the opposing factions in Congress reached an agreement on a COVID relief bill. The final bill is a compromise, reflecting the continuing strength of the Republican majority. The bill totals around $900 billion and includes:

No funds were directly included for state and local government, although unspent funds from some existing programs could be directed for that use. No employer liability protections were enacted and FFCRA leave programs were not extended, ending federal (but not all state) COVID paid leave programs.

Congress is also expected to approve the new budget before they recess.

Navigating the Federal Sea Change: The Impact of the 2020 Election on Employers – December 15, 2020 12:00 p.m. Eastern

Brad@automationlinks.com (Brad Smith) — Tue, 08 Dec 2020 22:58:00 GMT

David Fortney and Nita Beecher will be panel members of the Employment Law Alliance’s (ELA) event, Navigating the Federal Sea Change: The Impact of the 2020 Election on Employers on Tuesday, December 15, 2020 at 12:00 p.m. Eastern.

With the elections now in the rearview mirror, the inauguration of President-elect Biden, and the convening of the new Congress in January, employers are determining how the pending changes in Washington, D.C. will impact their business. In this program, this ELA panel will provide an overview of the expected Congressional and federal agency actions during the final weeks of the Trump Administration and what employers can expect during the Biden-Harris Administration. Both the long-term reversals in prior policies and regulations as well as the near term changes during the Lame Duck period before the January 20th inauguration will be discussed.

Topics to be Discussed:

Participating ELA Speakers

Steve Hirschfeld (Moderator)
Founding Partner
Hirschfeld Kraemer, LLP
California

David S. Fortney
Co-Founder
Fortney & Scott, LLC
District of Columbia

Henry M. Perlowski
Partner
Arnall Golden Gregory LLP
Georgia

Louis DiLorenzo
Member
Bond, Schoeneck & King, PLLC
New York – Upstate

Bill Wahoff
Member
Steptoe & Johnson PLLC
West Virginia (Ohio Office)

Melanie Gurley Keeney
Founding Shareholder
Tueth Keeney Cooper Mohan Jackstadt P.C.
Missouri (Eastern)

Juanita Beecher
Counsel
Fortney & Scott, LLC
District of Columbia

FortneyScott Client Alert: OFCCP Issues First Set of FAQs on EO on Combating Race and Sex Stereotyping…

Brad@automationlinks.com (Brad Smith) — Wed, 07 Oct 2020 22:20:00 GMT

On October 7, 2020 OFCCP issued the first FAQs under the recent Executive Order on Combating Race and Sex Stereotyping (EO 13950) . While the FAQs provide limited new insights, the following FAQ is informative:

Does Executive Order 13950 prohibit unconscious bias or implicit bias training?

Unconscious or implicit bias training is prohibited to the extent it teaches or implies that an individual, by virtue of his or her race, sex, and/or national origin, is racist, sexist, oppressive, or biased, whether consciously or unconsciously.

Training is not prohibited if it is designed to inform workers, or foster discussion, about pre-conceptions, opinions, or stereotypes that people - regardless of their race or sex - may have regarding people who are different, which could influence a worker’s conduct or speech and be perceived by others as offensive.

FortneyScott is working with clients to submit additional questions for the Agency to include in future FAQs. Let us know if you have further input.

In addition, according to published reports OFCCP Director Craig Leen on September 29, 2020 sent letters to certain federal contractors, including Microsoft and Wells Fargo, questioning whether the companies’ affirmative action commitments to hire more black employees violated federal discrimination laws.

FortneyScott strongly recommends that federal contractors have legal counsel review their Diversity, Equality and Inclusion training and affirmative action programs to ensure the training and affirmative action programs do not violate the new EO and OFCCP’s current enforcement protocols.

Reach out to your FS attorney for more information on the EO and its enforcement.

FortneyScott is a woman-owned, Washington, DC law firm counseling and advising clients on the full spectrum of workplace-related matters. The firm offers clients unparalleled experience and expertise by its attorneys.

FortneyScott represents clients in agency enforcement matters and rulemakings, administrative hearing, and litigation matters, including mediation and arbitration.

Questions? Please contact your FortneyScott attorney or e-mail us at info@fortneyscott.com .

FortneyScott’s October 19th Employer Briefing

Thu, 24 Sep 2020 13:48:00 GMT

Event Start Date: October 19, 2020

Event End Date: October 19, 2020

Event Venue: Virtually

In this briefing we will address (1) the latest developments affecting employers as businesses re-open during the COVID pandemic; (2) current challenges employers are facing as part of the heightened focus on inequality in America; and, (3) the key legal and federal agency developments.

FortneyScott’s attorneys will cover:

Problems confronting employers and workers as they slowly return to pre-COVID 19 activities while Congress fails to provide assistance;
Corporate responses to BLM protests and the Trump Administration’s counter to anti-racism and affirmative action; and,
Important legal and agency developments, including the most recent Executive Order for federal contractors, and the latest developments involving EEOC and DOL’s agencies, including the Wage and Hour Division, OSHA and OFCCP.

If you have any questions that you would like to have addressed during the Weekly Briefing, please submit via email to info@fortneyscott.com .

We look forward to continuing our briefings, and assisting our clients and all who are interested in understanding the latest developments affecting the workplace.

For more information:

On responding to the COVID workplace challenges, including all prior Weekly Briefings, visit FortneyScott’s Resource Center .
Also, every person on our team joined in a special message addressing the recent incidents of violence, racism, and intolerance taking place in communities across America, and expressed our support for changes to achieve equal opportunity for all members of our society.
Please email us at info@fortneyscott.com for legal advice and human resources support in understanding how these developments affect your company and workplace compliance programs.

Please forward this information to those in your organization who could benefit from these Weekly Briefings

OFCCP – Corporate Scheduling Announcement Lists

Fri, 11 Sep 2020 22:03:00 GMT

OFCCP posted its FY 2020 Corporate Scheduling Announcement Lists for Supply & Service contractors and Construction contractors earlier today. Both lists are available on OFCCP’s FOIA Library HERE .

Notably, as promised by the Agency last year, institutes of higher education are heavily represented on the Supply & Service list.

All federal contractors should review these lists promptly. Inclusion on either list means that all facilities listed will undergo a compliance review in the Agency’s next compliance cycle. Please contact FortneyScott to ensure that your facilities are well prepared for their upcoming evaluations.

FortneyScott’s September 21st Employer Briefing: “Key Issues Employers Are Facing Now”

Brad@automationlinks.com (Brad Smith) — Fri, 11 Sep 2020 21:26:00 GMT

FortneyScott’s attorneys will cover:

If you have any questions that you would like to have addressed during the Weekly Briefing, please submit via email to info@fortneyscott.com .

We look forward to continuing our briefings, and assisting our clients and all who are interested in understanding the latest developments affecting the workplace.

For more information:

Please forward this information to those in your organization who could benefit from these Weekly Briefings.

Supreme Court Broadens “Ministerial Exception”

Thu, 09 Jul 2020 18:21:00 GMT

In a widely anticipated ruling, the Supreme Court held that religious institutions have expansive authority in employing teachers who had a role in providing any form of religious instruction or observance.

In Our Lady of Guadalupe School v. Morrisey-Berru , the Court made clear that that federal employment discrimination laws do not apply to teachers at church-run schools whose duties include religious instruction. Justice Alito, basing his reasoning on the First Amendment’s protection of religious freedom, wrote:

When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.

The Court, in a 7-2 decision, emphasized that the title or training of the teacher were not determinative, rather, it is the actual duties of the individual teacher that defined who could enjoy the “ministerial exception.” By making that point, the Court broadly expanded the number of teachers who no longer have the protections of Title VII and other employment discrimination laws. Many commentators believe this ruling will encourage those challenging the Court’s recent ruling expanding Title VII protections to LGBTQ workers to bring lawsuits based on religious freedom grounds.

FS Attorneys to Present at the NILG Virtual Conference in July

Brad@automationlinks.com (Brad Smith) — Wed, 01 Jul 2020 22:18:00 GMT

The NILG 2020 National Conference Planning Committee and the NILG Board has announced a series of FREE webinars to the contractor community in July and August. Programming is underway and OFCCP Director Craig Leen will open the Virtual Conference.

How can Employers Move the Diversity Needle Without Running into Legal Trouble /Tuesday, July 14 ^th 2:00 PM – 3:15 PM

FS Attorneys Nita Beecher and Consuela Pinto will present with Paul Francisco (State Street) and Marina Williams (Lockheed Martin): Employers are under increasing pressure to diversify their workforce and maintain a culture of inclusivity. The pressure to move the needle is significant, particularly for Federal contractors. Striking a balance between innovative diversity and inclusion programs and applicable legal parameters is tricky. Participants will leave with: (1) an understanding of legal requirements; (2) practical recommendations for creating a culture of inclusivity; (3) innovative approaches for achieving and maintaining a diverse workforce at all levels.

An All-Female Pay Panel: ‘Women-splaining’ Pay Equity /Thursday, July 30 ^th from 2:00 PM – 3:15 PM

FS Attorney Elizabeth Bradley will present with Joanna Colosimo and Lisa Harpe (DCI), and Michelle Duncan (Jackson Lewis): An all-female, multi-disciplinary expert panel will converge to discuss their perspective on pay equity, the Pay Gap, and the Glass Ceiling. Learning objectives: (1) developing knowledge on the interconnection between pay equity and glass ceiling analytics to provide organizational recommendations; (2) avoiding pitfalls when implementing salary remediation strategies; (3) developing practical strategies for establishing a successful pay equity or glass ceiling project- with a focus on the end result and impact it will create.

Visit this website for updated information on the webinar series and how to register.

FortneyScott’s Employer Briefings – Updated Schedule

Mon, 29 Jun 2020 16:38:00 GMT

When the COVID pandemic hit with full force in March, FortneyScott commenced complimentary weekly briefings to aid employers in understanding and responding to the rapidly changing developments created by the pandemic. The briefings we’ve provided for the last three months (12 weeks) were extremely popular and well attended.

Now, as we enter into a phase where the updates are not as rapid and employers have begun to adapt to the virus-induced changes, we will continue to provide briefings on workplace developments twice a month. In our briefings, we will address COVID pandemic-related updates, particularly as they affect re-opening workplaces. Additionally, we will cover other major issues affecting our society, including the #BlackLivesMatter developments as well as key judicial, legislative, and policy changes. Of course, as developments warrant, we will provide alerts, or convene an additional special briefing.

We will implement the new schedule in July, and the next briefings will be held on July 13 and July 27 from 12:00 noon to 1:00 Eastern . The July 13 Briefing will, in large part, review the recent decisions of the Supreme Court and their impact on your workplace. You can register here to attend the July 13 briefing.

We look forward to continuing our briefings, and assisting our clients and all who are interested in understanding the latest developments affecting the workplace.

For more information:

Please forward this information to those in your organization who could benefit from these Weekly Briefings.

Employer Considerations for a Workforce Reduction Analysis

Tue, 23 Jun 2020 13:47:00 GMT

Attorney Juanita Beecher is featured in an article on Employer Considerations for a Workforce Reduction Analysis for www.Law360.com . This article provides in-house employment lawyers and human resources professionals, most of whom are likely working from home, a catalog of the unique legal issues, risks and practical concerns they should consider as we all adjust to our post-pandemic shutdown world.

Read the Law360 article here.

Title VII Protects LBGTQ, Supreme Court Rules

Mon, 15 Jun 2020 18:55:00 GMT

In an unexpected decision, the Supreme Court ruled today that gay and transgender individuals enjoy the full protections of Title VII of the Civil Rights of 1964. In a 6-3 decision, the High Court’s opinion, written by Justice Gorsuch, swept aside all objections raised by the lengthy and passionate dissents, one by one, declaring that the language of the statute made this outcome “clear.” In what may well become the most oft-quoted passage from this Court, Gorsuch wrote:

“Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII.”

This ruling will require over 20 states, which do not offer such protections, to bring their laws into compliance with the federal standard. Multi-jurisdictional employers will be especially pleased with this ruling, not only because it comports with their employment practices, but also because it now permits them to have a single employment standard throughout the US.

Although this decision addressed only the reach of Title VII, the language of many analogous federal laws is derived from Title VII and the interpretation and enforcement of those laws will likely have to be adjusted to comply with the new ruling.

The case can be found here.

A Message from FortneyScott and WorkPlace HR

Tue, 02 Jun 2020 15:09:00 GMT

Racism has no place in our society.

We at FortneyScott and WorkPlace HR are deeply saddened by the senseless deaths of George Floyd, Breonna Taylor and Ahmaud Arbery, as well as the recent incidents of violence, racism, and intolerance taking place in communities throughout our nation. The subsequent protests reflect the righteous pain, anger and frustration that African Americans and all of us feel about racism. Compounding this injustice is the disproportionate illness and death rates in the African American and Latino communities and the rise in harassment of people of Asian descent due to the pandemic.

The attorneys and staff of FortneyScott and WorkPlace HR have dedicated their careers to advancing equal opportunity and affirmative action in the workplace and human rights across the globe. We are committed to creating a fair, just and inclusive society.

The outpouring of support by people of all races and cultural identities in peaceful protest serves as both a challenge and reminder that achieving equality is not solely the responsibility of communities of color but of everyone. Each of us must step up, speak out, and help address our Nation’s shortcomings. At FortneyScott and WorkPlace HR, we are working with our clients to achieve the goal of equal opportunity. We want to ensure that Dr. Martin Luther King Jr.’s dream — that all children will “one day live in a nation where they will not be judged by the color of their skin but by the content of their character” — becomes a reality.

David Fortney

Jacqueline Scott

H. Juanita Beecher

Deirdre Bell

Elizabeth Bradley

Alyson Cina

John Clifford

Burton Fishman

Valerie Higgs

John Hine

Yolanda Hunter

Adriana Joens

Consuela Pinto

Leslie Silverman

FortneyScott’s May 18, 2020 COVID-19 Weekly Briefing – Responding to Key Legal Challenges Employers Face

Tue, 12 May 2020 22:12:00 GMT

REGISTER HERE to join FortneyScott’s complimentary COVID-19 Weekly Briefing on Monday, May 18 ^th from noon to 1:00 pm ET.

During this Weekly Briefing, FortneyScott’s attorneys will discuss the most recent developments and updates, and also address some of the key legal challenges that employers are facing, including:

This briefing is the eighth in the weekly series that FortneyScott offers to inform and assist employers in responding to the COVID-19 pandemic.

If you have any questions that you would like to have addressed during the Weekly Briefing, please submit via email to info@fortneyscott.com .

Previous FS Weekly Briefings

If you were unable to attend the earlier FS Weekly Briefings, you can access them below.

View FS May 11 Weekly Briefing – Discussion with Special Guest Speaker from J&J on what steps have been taken for their workforce and maintaining its focus on diversity and inclusion during the pandemic.

View FS May 4 Weekly Briefing – Review of the legal and practical issues that will arise when employers re-open their businesses.

View FS April 27 Weekly Briefing – Overview of the operational changes and key developments from the federal agencies governing the workplace in response to the pandemic.

View FS April 20 Weekly Briefing – Providing an overview of the new Federal Guidelines, Federal Agency developments, and addressing FAQs.

View FS April 13 Weekly Briefing – Addressing legal and HR challenges in the current workplace.

View FS April 6 Weekly Briefing – Providing an update on key developments and the new and expanded unemployment benefit provisions under the PUA and FPUC.

View FS March 30 Weekly Briefing – Addressing the new federal paid sick and family leave enacted in the Family Friendly and CARES Acts.

Please forward this information to those in your organization who could benefit from these Weekly Briefings.

FortneyScott is based in our nation’s capital, and we are staying on top of the rapid developments relating to the Coronavirus. We are continuing to advise our clients and to assist the employer community in successfully addressing the COVID-19 pandemic challenges that employers are facing.

EEOC Delays EEO-1 Report to 2021

Thu, 07 May 2020 19:20:00 GMT

The EEOC announced on May 7, 2020 that it was delaying the opening of the 2019 EEO-1 Component 1 data collection due to the COVID-19 pandemic. In the notice to be published in the May 8, 2020 Federal Register, the EEOC stated that in order to relieve employers of unnecessary burdens during the pandemic, it was delaying the opening of the 2019 EEO-1 Report as well as the 2020 EEO-3 and EEO-5 data collections until 2021. Employers should expect to submit their 2019 EEO-1 Component 1 data along with their 2020 EEO-1 Component 1 data in March 2021. The agency will notify filers of the precise date the portal will open as soon as it becomes available.

FortneyScott’s May 11, 2020 COVID-19 Weekly Briefing – What Employers Are Doing to Reopen

Tue, 05 May 2020 23:30:00 GMT

REGISTER HERE to join FortneyScott’s complimentary COVID-19 Weekly Briefing on Monday, May 11 ^th from noon to 1:00 pm ET.

During this Weekly Briefing, FortneyScott’s attorneys and WorkPlace HR’s consultant will be joined by Sharon Fronabarger, Head of Diversity & Inclusion with Johnson & Johnson, who will discuss how J&J is balancing working during the pandemic and its long-time focus on diversity and inclusion with its internal and external stakeholders. We also will provide updates on key legislative and policy developments impacting the workplace, and address your most frequently asked questions. This briefing is the eighth in the weekly series that FortneyScott offers to inform and assist employers in responding to the COVID-19 pandemic.

If you have any questions that you would like to have addressed during the Weekly Briefing, please submit via email to info@fortneyscott.com .

Previous FS Weekly Briefings

If you were unable to attend the earlier FS Weekly Briefings, you can access them below.

View FS May 4 Weekly Briefing – Review of the legal and practical issues that will arise when employers re-open their businesses.

View FS April 27 Weekly Briefing – Overview of the operational changes and key developments from the federal agencies governing the workplace in response to the pandemic.

View FS April 20 Weekly Briefing – Providing an overview of the new Federal Guidelines, Federal Agency developments, and addressing FAQs.

View FS April 13 Weekly Briefing – Addressing legal and HR challenges in the current workplace.

View FS April 6 Weekly Briefing – Providing an update on key developments and the new and expanded unemployment benefit provisions under the PUA and FPUC.

View FS March 30 Weekly Briefing – Addressing the new federal paid sick and family leave enacted in the Family Friendly and CARES Acts.

Please forward this information to those in your organization who could benefit from these Weekly Briefings.

FortneyScott is based in our nation’s capital, and we are staying on top of the rapid developments relating to the coronavirus. We are continuing to advise our clients and to assist the employer community in successfully addressing the COVID-19 pandemic challenges that employers are facing.

FortneyScott’s May 4, 2020 COVID-19 Weekly Briefing – Returning to Work: What Employers Are Asking

Tue, 28 Apr 2020 22:11:00 GMT

REGISTER HERE to join FortneyScott’s complimentary COVID-19 Weekly Briefing on Monday, May 4 ^th from noon to 1:00 pm ET.

During this Weekly Briefing, the FortneyScott attorneys will focus on the many legal and practical issues that will arise when employers re-open their businesses, such as, who to bring back? how to protect them? what if some refuse? is there liability if workers become sick? The legal obligations of OSHA, the EEO laws, labor–management laws, and others will be examined. As with our other Briefings, we also will provide updates on key legislative and policy developments impacting the workplace, and address your most frequently asked questions.

If you have any questions that you would like to have addressed during the Weekly Briefing, please submit via email to info@fortneyscott.com .

Previous FS Weekly Briefings

If you were unable to attend the earlier FS Weekly Briefings, you can access them below.

View FS April 27 Weekly Briefing – Overview of the operational changes and key developments from the federal agencies governing the workplace in response to the pandemic.

View FS April 20 Weekly Briefing – Providing an overview of the new Federal Guidelines, Federal Agency developments, and addressing FAQs.

View FS April 13 Weekly Briefing – Addressing legal and HR challenges in the current workplace.

View FS April 6 Weekly Briefing – Providing an update on key developments and the new and expanded unemployment benefit provisions under the PUA and FPUC.

View FS March 30 Weekly Briefing – Addressing the new federal paid sick and family leave enacted in the Family Friendly and CARES Acts.

Please forward this information to those in your organization who could benefit from these Weekly Briefings.

Register for FortneyScott’s April 27, 2020 COVID-19 Weekly Briefing Returning to Work under the Federal Guidelines

Tue, 21 Apr 2020 21:47:00 GMT

REGISTER HERE to join FortneyScott’s complimentary COVID-19 Weekly Briefing on Monday, April 27 from noon to 1:00 pm ET.

During this Weekly Briefing, the FortneyScott attorneys and WorkPlace HR consultant will focus on the evolving issues employers face in planning for their employees to return to work. On April 16, the President announced Guidelines that include three phases for “Opening Up America Again.” The next Weekly Briefing will focus on preparing for Phase One under the new Guidelines. We will address best practices for compliance with the President’s and the CDC’s guidelines, including social distancing plans, temperature checks, and contact tracing. As with our other Briefings, we also will provide updates on key legislative and policy developments impacting the workplace, and address FAQs.

If you have any questions that you would like to have addressed during the Weekly Briefing, please submit those via email to info@fortneyscott.com .

Previous FortneyScott Weekly Briefings

If you were unable to attend the earlier FS Weekly Briefings, you can access them below.

View FS April 20 Weekly Briefing – Providing an overview of the new Federal Guidelines, Federal Agency developments, and addressing FAQs.

View FS April 13 Weekly Briefing – Addressing legal and HR challenges in the current workplace.

View FS April 6 Weekly Briefing – Providing an update on key developments and the new and expanded unemployment benefit provisions under the PUA and FPUC.

View FS March 30 Weekly Briefing – Addressing the new federal paid sick and family leave enacted in the Family Friendly and CARES Acts.

Please forward this information to those in your organization who could benefit from these Weekly Briefings.

Register for FS April 20 COVID-19 Weekly Briefing – Key Federal Agency Developments and FAQs

Tue, 14 Apr 2020 23:07:00 GMT

REGISTER HERE to join FortneyScott’s complimentary COVID-19 Weekly Briefing on Monday, April 20 from noon to 1:00 pm ET.

During this Weekly Briefing, FortneyScott will provide an overview of the operational changes and key developments during the pandemic by the federal agencies governing the workplace. We will also discuss the latest updates and address the most frequently asked questions. If you have any questions that you would like to have addressed during the Weekly Briefing, please submit via email to info@fortneyscott.com .

Previous FS Weekly Briefings

If you were unable to attend the earlier FS Weekly Briefings, you can access them below.

View FS April 13 Weekly Briefing – Addressing legal and HR challenges in the current workplace.

View FS April 6 Weekly Briefing – Providing an update on key developments and the new and expanded unemployment benefit provisions under the PUA and FPUC.

View FS March 30 Weekly Briefing – Addressing the new federal paid sick and family leave enacted in the Family Friendly and CARES Acts.

Please forward this information to those in your organization who could benefit from these Weekly Briefings.

EEOC Suspends the Issuance of Right-to-Sue Letters During Pandemic

Wed, 08 Apr 2020 22:49:00 GMT

EEOC has temporarily paused closing its investigations during the current COVID-19 pandemic, and also suspended the issuance of right-to-sue letters. The agency had quietly taken steps beginning on March 21, 2020 to safeguard charging parties’ rights during the pandemic. According to published reports, EEOC chose to publicize that it has suspended closing investigations of charges or issuing right-to-sue letters unless requested by a charging party following the agency’s receipt of a letter by more than 80 employee advocates.

Under Title VII of the Civil Rights Act, employees have 90 days in which to file a lawsuit in federal district court after they receive a right-to-sue letter from the EEOC. Although the EEOC has not published guidance for employees of private employers, it has provided updated guidance for federal agencies and their employees. For employers that typically monitor the 90-day period following the issuance of a right-to-sue letter to determine whether unresolved EEOC charges and investigations will result in litigation, the EEOC’s suspension extends the period of uncertainty for employers to know whether they will face litigation claims on these pending EEOC matters.

Register for FS April 13 COVID-19 Weekly Briefing – Legal and HR Challenges in the Workplace

Tue, 07 Apr 2020 21:48:00 GMT

FS’s Next Weekly Briefing – Legal and HR Challenges

To register for FS’s complimentary COVID-19 Weekly Briefing on April 13, please REGISTER HERE .

Employers face a multitude of legal and HR challenges in successfully managing the workforce while navigating the multiple state and local restrictions and understanding the newly enacted legislation in response to the COVID-19 pandemic. It now is more important than ever that employers ensure that their employment policies and HR practices are up to date and effectively implemented. Join FortneyScott and WorkPlace HR for our COVID-19 Weekly Briefing on Monday, April 13 from noon to 1:00 pm ET as we address the legal and HR challenges, including:

Our subject matter specialists, including a highly experienced employment lawyer and HR consultant, will provide helpful tips and practical insights.

Previous FS Weekly Briefings

If you were unable to attend our previous FS Weekly Briefings, you can access them below.

View FS March 30 Weekly Briefing – Topics included the new federal paid sick and family leave enacted in the Family Friendly and CARES Acts.

View FS April 6 Weekly Briefing – Topics included a brief update on key developments and new and expanded unemployment benefit provisions under the PUA and FPUC.

DOL Issues Regulations Regarding Paid Leave Under the FFCRA

Wed, 01 Apr 2020 21:25:00 GMT

Today the Families First Coronavirus Response Act (FFCRA) became effective, requiring employers with fewer than 500 employees to begin providing paid sick leave and expanded family leave for employees who are unable to work due to the COVID-19 pandemic. As expected, the DOL Wage & Hour Division issued new regulations implementing these paid leave provisions. The Temporary Regulations are effective immediately, from April 1 through December 31, 2020, although DOL has deferred enforcement initially until April 18, 2020. The new regulations generally are consistent with the informal guidances (Questions and Answers) that DOL recently issued. The regulations are available HERE .

We will be discussing these regulations, as well as other coronavirus-related developments, during our upcoming COVID-19 Weekly Briefing on Monday, April 6 ^th . If you would like to register for the weekly briefing, please click register HERE .

Please contact either John Clifford at FortneyScott ( jclifford@fortneyscott.com ) or your FortneyScott attorney if you have questions regarding the impact of these new regulations, or how the FFCRA affects your company’s compliance obligations.

FortneyScott’s COVID-19 Weekly Briefings and Employer Help Desk

Tue, 31 Mar 2020 23:14:00 GMT

As a reminder, FortneyScott has expanded its professional services to aid our clients in responding to the COVID-19 pandemic.

Weekly Briefings

Our next FS Weekly Briefing will be on Monday, April 6. FortneyScott attorneys will provide an update on the new key developments affecting the workplace, including a review of the new and expanded unemployment benefit provisions (Pandemic Unemployment Assistance (PUA) and Federal Pandemic Unemployment Compensation (FPUC)). If you are interested in participating in FS’s Weekly Briefings, please REGISTER HERE .

On March 30, we presented the new federal paid sick and family leave enacted in the Family Friendly and CARES Acts. If you missed FS’s March 30 Weekly Briefing, you can watch it by CLICKING HERE .

The FS Weekly Briefings are complimentary and will continue to be held on Mondays from 12:00 noon to 1:00 PM (Eastern) . Our attorneys and HR consultants will address the leading workforce issues, including compliance with new legislation, managing leaves of absence, workplace safety, EEO/ADA issues, layoffs and furloughs, implementing new HR policies, and related issues. The Briefings also will provide a forum for employers to ask questions and share insights about the issues they are facing.

FortneyScott’s COVID-19 Employer Help Desk

FortneyScott has assembled attorneys and HR consultants to provide efficient, effective services on a fixed fee basis through the FS COVID-19 Employer Help Desk . The Help Desk services can be tailored to supplement and aid employers’ legal, HR, and compliance teams that are addressing the significant legal and practical challenges as the COVID-19 pandemic continues to evolve. Please contact your FortneyScott attorney or e-mail FortneyScott for more information on how the Help Desk can assist you and your team in addressing COVID-19 challenges.

Please forward this information to those in your organization who also could benefit from these expanded professional services.

We are here in our nation’s capital, staying on top of the rapid developments surrounding the coronavirus. We will continue to work with our clients to successfully address the COVID-19 pandemic challenges that employers are facing.

What Employers Need to Know About the Families First Coronavirus Response Act

Thu, 19 Mar 2020 22:14:00 GMT

In response to the coronavirus of 2019 (COVID-19), President Trump signed the Families First Coronavirus Response Act, H.R. 6201, into law on March 18, 2020. The Act provides various forms of relief including free COVID-19 testing, expanded food assistance and unemployment benefits, and requires employers to provide additional protections for healthcare workers. Additional bills are pending and likely to be finalized and provide additional relief.

Significantly, the Act also requires employers with fewer than 500 employees to provide paid sick leave and expanded family leave for employees. Employers with 500 or more employees are not subject to these requirements.

The key employment-related provisions of the bill are summarized below. These provisions will become effective within 15 days (April 2, 2020) – employers must act promptly to ensure that their policies comply with these new requirements.

Emergency Paid Sick Leave

Under the Act, employers with fewer than 500 employees will be required to provide paid sick leave to any employee who is:

Full-time and part-time employees are eligible for paid leave under the Act. Full-time employees are to receive 80 hours of sick leave, and part-time workers are entitled to leave equal to the number of hours they work, on average, over a 2-week period.

The amount of pay employers are required to provide under the Act depends on the reason for an employee’s leave. Employees taking leave for themselves must be paid at their regular rate up to a cap of $511 per day and a total $5,110. Employees taking leave to care for a family member must be paid at two-thirds of their regular rate, with a cap of $200 per day and a total of $2,000.

Notably, the sick leave required under the Act must be provided in addition to any paid leave already provided by employers. Employers cannot require a worker to use any other available paid leave before using the sick leave required under the Act.

Finally, employers will be required to post a new notice containing information regarding the emergency sick leave provisions of the Act. The U.S. Department of Labor will create a model notice within the next week.

Emergency Family and Medical Leave Expansion

In addition to the new paid sick leave obligations, the Act amends the Family and Medical Leave Act (FMLA) and requires that employers with fewer than 500 workers must provide up to 12 weeks of family and medical (FML) leave for employees unable to work or telework because they have to care for a child if the child’s school or place of care has been closed, or if the child care provider of that child is unavailable due to a coronavirus emergency. To be eligible for FML leave under the Act, employees must have been employed for at least 30 days.

Under this provision, the first 10 days of leave may be unpaid, although a worker may choose to use accrued vacation days or other available medical, sick or PTO leave for those days. After the initial 10 days, workers on FMLA leave must be paid at two-thirds of their regular rate. The paid leave under this provision is capped at $200 per day and $10,000 in total.

In most cases, as required by the existing FMLA leave requirements, the new expanded FML leave under the Act is job-protected and an employer must return the employee to the same or equivalent position upon their return to work. The Act, however, provides an exception for employers with less than 25 employees if (1) the employee’s job no longer exists due to economic conditions or other changes in the employer’s operating conditions caused by the coronavirus pandemic, and (2) the employer makes reasonable efforts to restore the employee to an equivalent position.

Potential Exemptions

Importantly, under the Act, the Secretary of Labor is authorized to issue regulations exempting: (1) certain health care providers and emergency responders from paid leave benefits, and (2) small businesses with fewer than 50 employees from the newly added paid leave requirements “when the imposition of such requirements would jeopardize the viability of the business as a growing concern.”

Employer Tax Credits

The Act provides for a series of refundable tax credits for employers providing paid emergency sick leave or paid FMLA. Specifically, employers will be entitled to a refundable tax credit equal to 100 percent of qualified sick or family leave wages required by the Act. These tax credits will be allowed against the employer portion of Social Security taxes; however, if the credit exceeds the employer’s total Social Security taxes for all employees for any calendar quarter, the excess credit will be refundable to the employer.

Next Steps for Employers

Promptly review the Act, which is available here . Employers need to assess which provisions are applicable to them and determine how to comply. There will be new regulations and additional legislation in the near future, so it is essential to stay on top of these developments. We are closely monitoring these matters and will provide updates.

Please contact either John Clifford at FortneyScott (jclifford@fortneyscott.com) or your FortneyScott attorney on how these changes affect your company’s compliance obligations.

Agencies to Post All Guidances by February 28

Wed, 26 Feb 2020 20:17:00 GMT

Pursuant to an Executive Order “ Promoting the Rule of Law Through Improved Agency Guidance Documents ,” issued by Pres. Trump four months ago, all federal agencies must post all their Guidances – of any kind—on a searchable website by February 28. Because of the breadth of the EO, “Guidances” can include a wide variety of writings beyond what are commonly regarded as statements of an agency’s policies or practices, e.g., letters, adjudication decisions, or even press releases. The Department of Labor stated it will meet the deadline.

The Office of Information and Regulatory Affairs, a small agency within OMB that will oversee this effort, has told agencies that all guidance documents must be machine readable and able to be indexed and searched by commonly used commercial search engines. Most significantly, and in keeping with the most important aspect of the EO, OIRA reminded agencies that they must include a clearly visible note stating that guidance documents lack the force and effect of law , unless expressly authorized by statute or incorporated into a contract.

NLRB Issues Joint-Employer Regulation

Tue, 25 Feb 2020 17:37:00 GMT

On February 25, 2020, the National Labor Relations Board (“NLRB”) issued its long-awaited Joint–Employer Regulation . The rule adopted anticipated standards, mandating that to be a joint-employer, a business must “possess and exercise . . . substantial direct and immediate control over one or more essential terms and conditions of employment of another employer’s employees.” Further, the NLRB defines those essential terms as: “wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction.” The new rule will deeply reduce the liability of franchisers and other large users of contracted workers for unfair labor practices and significantly limit opportunities for company-wide union organizing.

New Nominations to EEOC and NLRB

Thu, 20 Feb 2020 16:43:00 GMT

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

Mon, 10 Feb 2020 22:37:00 GMT

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

Fri, 07 Feb 2020 21:54:00 GMT

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:

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

Mon, 03 Feb 2020 20:06:00 GMT

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.

Department of Labor Issues Final Joint Employment Rule

Mon, 13 Jan 2020 19:33:00 GMT

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.

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

Wed, 13 Nov 2019 20:30:00 GMT

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:

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

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.

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

Mon, 04 Nov 2019 16:32:00 GMT

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.

OFCCP Issues Technical Assistance Guide for Educational Institutions

Fri, 11 Oct 2019 20:19:00 GMT

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:

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

Mon, 30 Sep 2019 22:58:00 GMT

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

Tue, 24 Sep 2019 15:25:00 GMT

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:

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”

Wed, 11 Sep 2019 22:46:00 GMT

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:

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

Tue, 10 Sep 2019 22:47:00 GMT

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 30 ^th deadline.

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

Employers Face Issues Submitting EEO-1 Component 2 Reports

Thu, 05 Sep 2019 23:30:00 GMT

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

Mon, 22 Jul 2019 18:30:00 GMT

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

Fri, 12 Jul 2019 14:53:00 GMT

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

Mon, 24 Jun 2019 22:45:00 GMT

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

Tue, 04 Jun 2019 15:07:00 GMT

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 .

Colorado Passes Onerous Pay Equity Law, Expanding the State Law Patchwork

Thu, 23 May 2019 16:14:00 GMT

Colorado Governor Jared Polis (D) signed the Equal Pay for Equal Work Act on May 22, 2019, resulting in Colorado becoming the most recent state to join the patchwork of state pay equity laws that employers must navigate. The Colorado pay equity law becomes effective January 1, 2021, giving employers time to prepare and come into compliance.

The Colorado equal pay law provisions The Colorado law prohibits employers from discriminating between employees on the basis of sex, or on the basis of sex in combination with another protected status, for “substantially similar work.” The Colorado law includes specific affirmative defenses, but the defenses under the new law are narrower than those provided under the federal Equal Pay Act and other state pay equity laws and the Colorado defenses likely will be more difficult for employers to meet. Specifically, a difference in pay can be justified if the employer can demonstrate that the wage differential is based upon a seniority or merit system or a system that measures earnings by quantity or quality of production or the employer can demonstrate:

The Colorado law also has an explicit ban on asking for salary history or relying on the salary history of prospective employees to determine their wage rate.

Employees claiming wage discrimination have expanded litigation rights, including that claimants may circumvent the administrative process and allowing for two years to file a lawsuit, instead of the usual 300 days to file an EEOC charge. There also are expanded remedies, including back pay for the entire time the violation continues, not to exceed six years. Additionally, an employer may be liable for economic damages in an amount equal to the difference between the amount that the employer paid to the employee and the amount the employee would have received had there been no violation, plus liquidated damages.

There is a good-faith exception, however. The additional payments are not permitted if the salary disparity was unintentional. The burden is on the employer to demonstrate that the act or omission giving rise to the violation was done in good faith.

Additional challenges for multi-state employers operating in Colorado . Colorado joins a number of other states in passing comprehensive equal pay legislation, and more states are likely to continue the trend in the near future. It is critical that employers, particularly those operating in multiple states, quickly get up to speed on their varying obligations. Moreover, proactive pay audits under the protection of attorney-client privilege and, where appropriate, pay adjustments, will put employers in the best possible position to defend against what we expect will be an increase in complaints of compensation discrimination.

FortneyScott’s Pay Equity practice is dedicated to guiding employers through the changing and challenging world of pay equity. FortneyScott’s attorneys in Denver, Colorado and Washington, DC advise employers on compliance with the new Colorado pay equity law and additional workplace matters. Please contact FortneyScott for legal counsel and advice on complying with the Colorado fair pay law and the additional federal and state fair pay laws, and to enable your company to “get pay equity right.”

Senate Confirms Janet Dhillon to Chair EEOC

Wed, 08 May 2019 18:56:00 GMT

In a 50-43 vote, the U.S. Senate confirms Janet Dhillon to chair the Equal Employment Opportunity Commission. Ms. Dhillon was nominated by President Trump on June 29, 2017 and re-nominated by the President on January 4, 2019. With this confirmation, the EEOC finally has a quorum of three members.

Update on EEO-1 Part 2 Pay and Work Hours Data Collection

Thu, 25 Apr 2019 16:53:00 GMT

On April 25, the Federal District Court in Washington DC ruled that the EEOC shall collect employer compensation and work hours data for all U.S. employers with 100 or more employees. The Court has ordered that two years of compensation and work hours data be submitted. It is certain that employers must submit 2018 data. The Court ordered EEOC to soon decide whether employers will submit either 2017 or 2019 data. Although all details have not been fully determined, the Court’s ruling included the following specifics:

For the District Court’s decision, click here .

A special webinar hosted by FortneyScott and DCI has been scheduled on Tuesday, April 30 ^th from 12-1 pm ET to provide employers in understanding what this means for them. Please reach out to your FortneyScott attorney with whom you work to assist with compliance with these requirements.

To register for this timely webinar, click here .

In Another Explicit Win for Employers, Supreme Court Says that Class Arbitration Must Be Explicitly Authorized

Wed, 24 Apr 2019 22:03:00 GMT

On April 24, the U.S. Supreme Court ruled that absent explicit authorization, class arbitration cannot be compelled. In Lamps Plus, Inc. v. Varela , the Court issued a 5-4 decision in favor of an employer, who had challenged the lower court’s ruling compelling class arbitration. The majority opinion, written by Chief Justice Roberts, concluded that an ambiguous agreement cannot provide the necessary “contractual basis” for compelling class arbitration.

The ruling is a victory for Lamps Plus following years of litigation. In 2016, a hacker posing as a company official persuaded an employee of Lamps Plus to disclose the tax filings of approximately 1,300 employees. The hacker used the information to file a fraudulent tax return in the name of Frank Varela, a Lamps Plus employee. Varela subsequently filed a class action against Lamps Plus on behalf of employees whose information had been compromised. Relying on the arbitration agreement in Varela’s employment contract, Lamps Plus sought to compel arbitration on an individual rather than a classwide basis, and to dismiss the suit. The district court rejected the individual arbitration request but authorized class arbitration. Lamps Plus appealed but the Ninth Circuit affirmed in 2017. The Supreme Court granted Lamps Plus’ subsequent petition for writ of certiorari on April 30, 2018.

Justice Roberts, writing for the majority, underscored the principle of consent under the Federal Arbitration Act (FAA), writing that under the FAA, arbitration “is a matter of consent, not coercion.” Citing to an earlier decision of the Court in 2010, Justice Roberts emphasized that the courts may not infer an affirmative contractual agreement to arbitrate where the language is ambiguous. That case – Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp. – involved an agreement that was completely silent on the availability of class arbitration and the Court there found that silence was not enough. Using the rationale in Stolt-Nielsen , the Court here held that ambiguity, like silence, does not suffice and the courts should not infer consent when it comes to fundamental arbitration questions.

Additionally, the Court recognized that the Ninth Circuit reached its conclusion based on California’s state rule that ambiguity in a contract should be constructed against the drafter. This notion was raised by Justice Kagan in a dissenting opinion, noting that the rule is a common principle of contract interpretation that resolves ambiguities against the party. In addressing and rejecting that point, Justice Roberts held that the rule in fact conflicts with the FAA and is “flatly inconsistent with the foundational FAA principle that arbitration is a matter of consent.”

Today’s ruling is just the latest in a line of Supreme Court decisions that have backed arbitration. The decision comes nearly a year after the seminal decision in Epic Systems Corp. v. Lewis , which affirmed employers’ use of class action waivers in arbitration agreements that employees must sign. The Lamps Plus decision now further signals and extends a pattern in favor of employers when it comes to the use and scope of arbitration agreements in the employment context.

If you have any questions, please contact your FortneyScott attorney.

OFCCP Proposes Revisions to its Scheduling Letter and Expanded Data Collection

Wed, 17 Apr 2019 20:20:00 GMT

On April 12, 2019, OFCCP proposed significant changes to the agency’s Scheduling Letter process, notably by modifying the existing Compliance Review letter and significantly expanding the document and data requests and creating Compliance Check and Focused Review Letters for compliance evaluations under Executive Order 11246, Section 503 of the Rehabilitation Act (Section 503), and Section 4212 of the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA). As proposed, the sub-regulatory changes will increase contractors’ burdens significantly by expanding the data and documents that are to be submitted to OFCCP during a desk audit. Although presented as technical updates, the changes are substantive and adverse to federal contractors’ interests.

Fortunately, the proposed letters are subject to review and approval by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act. The OMB process allows for comments to be submitted by June 11, 2019. Because of the review process, the proposed letters likely will not be effective until later this year. Because a number of the new provisions considerably expand contractors’ obligations, it is likely that OMB will receive comments addressing whether OFCCP’s proposed sub-regulatory changes should be authorized and implemented.

Please check back for updates as FortneyScott will be closely monitoring developments. If you have any questions or would like to discuss submitting comments, please contact your FortneyScott attorney.

EEOC Proposes Expensive and Uncertain Processes if the Court Orders a Deadline of September 30 for Employer Pay Data

Thu, 04 Apr 2019 17:28:00 GMT

On Wednesday, April 3, 2019, the Department of Justice i nformed the Federal District Court that the EEOC could implement pay data collection procedures if the court orders employers to submit the W-2 pay and hours worked data required by EEO-1 Component 2 by September 30, 2019. However, the pay data collection would have to be performed by a contractor at a cost of $3 million and would result in significant uncertainties on security and accuracy matters.

DOJ’s submission, which included a declaration by EEOC’s Chief Data Officer, was in response to US District Court Judge Tanya S. Chutkan’s requirement that the government provide her with their plan to collect the EEO-1 Component 2 data. Judge Chutkan ruled on March 4, 2019 that the OMB’s decision to stay the EEOC’s revised EEO-1 information collection known as Component 2 was invalid and that it should be implemented immediately. When the EEOC opened its EEO-1 portal on March 18, 2019 seeking only Component 1 data of race, gender, ethnicity by EEOC category, the court, upon the request of plaintiffs, told the government to provide it with a plan for collecting Component 2 W-2 pay and hours worked data.

The submission states that collecting the pay data from employers by September 30 ^th poses a number of issues. First, the Declaration of Dr. Sam Haffer, the EEOC’s Chief Data Officer, states that the data processes the EEOC uses to collect EEO-1 demographic data “are not capable of collecting employers’ 2018 Component 2 data” and that “it would take nine months to modify the EEOC’s current processes to support the collection of large amounts of sensitive Component 2 pay data from 2018.” As a result according to Dr. Haffer, the EEOC has determined that using a data and analytics contractor is its only alternative although “there is a serious risks that the expedited data collection process may yield poor quality data because of the limited quality control and quality assurance measures that would be implemented due to the expedited timeline.”

Meanwhile, a number of employer groups including The Institute for Workplace Equality represented by FortneyScott filed an amicus brief with the court asking that the pay data collection be postponed until 2020.

FortneyScott will keep you informed on the latest news involving the collection of Component 2 data.

To read the EEOC’s response, click here .

Wage and Hour Proposes New “Joint Employer” Rule

Tue, 02 Apr 2019 20:22:00 GMT

At a critical moment in the simmering battle over the definition of “joint employer,” the Department of Labor’s Wage and Hour Division has entered the fray with an emphatic statement.

W&H has issued a proposed new rule on the subject – its first since 1958 – which seeks to cut through a growing thicket of proposals and counter-proposals from a variety of sources, chiefly the NLRB. The core principles of the new rule return the DOL’s definition to one that had been the dominant understanding for decades. Under the new rule, joint employer status will be determined under a four-factor test.
Who has the authority to:

Since the Obama Administration’s attack on the pre-existing rules by elevating factors such as “indirect control” or “reserved rights,” there has been a concerted effort by employer groups to clarify the criteria by which “join employer” decisions will be made. W&H has provided precisely the sought-for clarity by “explaining that ability, power, or reserved contractual right to act in relation to the employee is not relevant for determining joint employer status” and noting, further, that analyses of additional factors may be used to determine joint employer status, but only if “they are indicative of whether the potential joint employer is exercising significant control over the terms and conditions of the employee’s work.”

DOL Proposes Change on Regular Rate

Fri, 29 Mar 2019 21:50:00 GMT

On March 28, 2019 the U.S. Department of Labor announced a proposed rule to clarify and update the Fair Labor Standards Act (FLSA) regulations governing regular rate requirements. Regular rate requirements define what forms of payment employers should include and exclude in the “time and one-half” calculation when determining workers’ overtime rates. The proposed rule focuses primarily on clarifying what kinds of perks, benefits, or other miscellaneous items must be included in the regular rate. Because these regulations have not been updated in decades, the proposal would better define the regular rate for today’s workplace practices.

The Department proposes clarifications to confirm that employers may exclude the following from an employee’s regular rate of pay:

The proposed rule also includes additional clarification about other forms of compensation, including payment for meal periods, “call back” pay, and others.

The proposed rule was published in the March 29, 2019 Federal Register and comments are due on May 28, 2019.

Contact your FortneyScott attorney if you have any questions or would like to file a comment about the proposed rule.

Federal Judge Orders EEOC to Provide Update on Pay Data Collection by April 3

Tue, 19 Mar 2019 22:24:00 GMT

The EEO-1 Report Survey officially opened on Monday, March 18, 2019 allowing employers to only submit the race, gender, ethnicity of their employees by EEO category (Component 1). EEOC in a statement issued on Monday morning said that it was only seeking Component 1, but that it was “working diligently on next steps in the wake of the court’s order in National Women’s Law Center, et al., v. Office of Management and Budget, et al., Civil Action No. 17-cv-2458 (TSC), which vacated the OMB stay on collection of Component 2 EEO-1 pay data . The EEOC will provide further information as soon as possible.”

In response to EEOC’s failure to require employers to submit pay data, US District Court Judge Tanya S. Chutkan on Tuesday, March 19, 2019 ordered the agency to inform employers of its timeline for collecting Component 2 data by April 3, 2019. By that date, the EEOC is to let employers know if the data will be required before the May 31, 2019 deadline and provide guidance on how to submit the information. Component 2 to the EEO-1 Report would collect W-2 pay data and hours worked from all employers with 100 or more employees in 12 pay bands by EEO Category.

OFCCP issues FAQs on Section 503 focused reviews

Mon, 11 Mar 2019 22:25:00 GMT

On Friday, March 8, OFCCP announced its Section 503 Focused Review Landing Page . The landing page includes information on the Section 503 regulations, the focused review directive, and resources on reasonable accommodations as well as best practices.

Also on that page, OFCCP published long-awaited FAQs on the agency’s Section 503 focused reviews. Three of the most interesting FAQs are:

4. The Section 503 focused review scheduling letter requests our Executive Order 11246 AAP as well. Will OFCCP review the Executive Order (EO) AAP during a 503 focused review?

No. OFCCP will not conduct a review of the Executive Order Affirmative Action Program (AAP) during a Section 503 focused review. While OFCCP will request the EO AAP as part of the Section 503 focused review, the EO AAP will only be used to help the OFCCP compliance officer get a clearer picture of the contractor’s organizational structure, confirm Section 503 job groups, and understand generally how the Section 503 compliance strategies fit with the contractor’s other affirmative efforts. OFCCP will not analyze data contained in the EO AAP to look for discrimination based on sex or race and ethnicity. If elements of the EO AAP document are missing or insufficient on their face, OFCCP will note those issues and take appropriate actions, beginning with technical assistance, to bring the contractor into compliance. For example, if the EO AAP job group analysis does not include a list of the job titles that comprise each job group, OFCCP will provide technical assistance and require the contractor to submit the missing information, which will then be noted in the closure notice.

9. Will OFCCP analyze personnel activity data during a Section 503 focused review?

OFCCP will not require the submission of personnel activity data other than the data described in 60‐741.44(k) at the onset of a Section 503 focused review. However, during the course of the review, OFCCP may request and review this information. OFCCP may request compensation and promotion data for individuals who identified as having a disability, are known to have a disability, and/or employees who requested a reasonable accommodation. Additionally, based on a review of data in response to 60‐741.44(k), OFCCP may request additional applicant flow data for job groups that had applicants with disabilities.

10. Will focused reviews take place at all contractor facilities?

The first round of Section 503 focused reviews will take place at contractors’ corporate headquarters locations. OFCCP will evaluate whether it wishes to schedule other establishments for focused reviews in the future.

Wrap Up

Now that OFCCP has provided its compliance assistance materials on Section 503 focused reviews, FortneyScott understands that the CSALs will be posted imminently.

If you have any questions, please contact your FortneyScott attorney.

U.S. Department of Labor Issues New Overtime Proposal

Fri, 08 Mar 2019 22:12:00 GMT

On Thursday, March 7, 2019 the U.S. Department of Labor (DOL) posted on its website a Notice of Proposed Rulemaking (NPRM) for its new overtime rule. The proposal would raise the salary threshold for employees to be exempt from overtime from the current $455 per week ($23,660 per year) to $679 per week ($35,308 per year).

Other key aspects of the proposal include:

The salary threshold is substantially lower than the salary threshold of $47,476 proposed by the Obama Administration and enjoined by the federal district court in the Eastern District of Texas prior to its effective date. The new proposal would rescind the 2016 Overtime Rule. The proposal does not make any changes the “duties” test which many employers had hoped it would.

Comments will be due 60 days after the NPRM is published in the Federal Register . FortneyScott will keep you informed on any updates made by the DOL. Contact your FortneyScott attorney if you have any questions or would like to file comments on the proposal.

DOL to Issue New Overtime Rule

Thu, 07 Mar 2019 22:57:00 GMT

Under a new regulation proposed by the Department of Labor, workers who make up to $35,308 per year would be eligible for time-and-a-half pay for all hours worked beyond 40 a week. The current threshold is $24,000. The new threshold is considerably less than that proposed by the Obama administration — $47,476 – which was blocked by the courts.

As anticipated, the proposed rule does not provide for a controversial automatic increase of the salary threshold but leaves that option open by requesting public comment on the prospect of an agency consideration of a salary update in new rulemaking every four years. Very significantly, the proposed rule also makes no changes to the current “duties test,” a hotly debated subject in the prior rounds of notice and comment.

FortneyScott will keep you updated on the impact of this proposed regulation.

Federal District Court Reinstates EEO-1 Pay Data Report

Tue, 05 Mar 2019 21:46:00 GMT

On Monday, February 4, 2019, the Federal District Court for the District of Columbia ordered that the EEOC’s EEO-1 pay data collection report be immediately reinstated.

The court ordered the Office of Management and Budget (OMB) to immediately lift its stay on the EEOC’s pay data collection report (known as Component 2), saying the decision to implement the stay was “arbitrary and capricious.” The effect of this ruling is to permit the EEOC to begin collecting pay data at once. It remains to be seen if this order is immediately carried out.

In a decision focused on the nuances of administrative law, Judge Tanya S. Chutkan sternly rejected OMB’s arguments that it was authorized to issue its stay on the grounds that changes in EEOC’s formatting requirement for the new pay report were burdensome on employers. Granting summary judgment for the plaintiffs, National Women’s Law Center and the Labor Council for Latin American Advancement, the court said that while there may be times when formatting changes could be considered burdensome, this situation was not it.

The ruling also rejected (1) OMB’s challenge to the plaintiffs’ standing to sue because they could not show the stay caused them any harm and (2) that the OMB’s decision to stay implementation was not reviewable because it was not a “final agency action.” The court found that the decision to stay the data collection was itself a harm and that it was reviewable.

The court concluded that because OMB’s action in staying EEOC’s collection of pay data “was arbitrary and capricious” and “totally lacked the reasoned explanation that the [Administrative Procedures Act] requires,” an immediate reinstatement was ordered.

Takeaways for employers:

Although the court ordered the immediate implementation of EEOC’s Component 2 pay data collection, it is all but certain that OMB will appeal the decision and seek a stay of the court’s order pending resolution of the case. In addition, once it has a quorum of Republican Commissioners, expect the EEOC to revise or eliminate the requirement to collect pay data. Janet Dhillon has been nominated as Chair and would be the second Republican on the EEOC; however, it is uncertain as to when the Senate will confirm her. Until she is confirmed, the EEOC does not have a quorum and cannot act. This ruling may create an incentive for the Senate to act on her nomination promptly.

FortneyScott will keep you informed on how this issue will impact you.

Federal Judge Reinstates EEOC’s Pay Data Collection

Tue, 05 Mar 2019 15:58:00 GMT

On March 4, 2019 U. S. District Court of the District of Columbia ruled that the EEO-1 pay data collection known as Component 2 should go into effect immediately, saying the Office of Management and Budget’s stay of the pay data collection was “arbitrary and capricious.”

Click here for the DC District Court’s opinion.

FortneyScott will keep you informed with any developments to this story.

DOL & EEOC Nominees Nearing Confirmation

Wed, 27 Feb 2019 23:38:00 GMT

The Senate Committee on Health, Education, Labor & Pensions (HELP Committee) moved to send the nominations of Scott Mugno (OSHA), Cheryl Stanton (Wage & Hour), and Janet Dhillon (Chair, EEOC) to the Senate floor in a party line vote. In the recent past, clearing this hurdle has not always led to quick approval by the Senate.

Nonetheless and depending on the Senate’s legislative schedule, political leaders in these important employment-related agencies may soon be in place. The HELP Committee’s action comes in the wake of growing criticism about the overall lack of confirmed political leadership at DOL and EEOC.

FortneyScott will continue to monitor any updates related to nominations at employment based agencies.

Rulings Establish Precedent, but Judges Aren’t Forever

Mon, 25 Feb 2019 21:17:00 GMT

In a surprisingly narrow (albeit witty) per curiam decision, the Supreme Court vacated a ruling of the 9 ^th Circuit that held it was impermissible under the Equal Pay Act (EPA) to determine a salary differential solely on the basis of prior salary. Fresno County Superintendent of Schools v. Aileen Rizo.

In the original case, the District Court ruled that under the Equal Pay Act “a factor other than sex” included using prior salary to determine pay. On appeal – and on re-hearing by an en banc panel of 11 judges – the 9 ^th Circuit held that relying on such a factor could not be sustained under the EPA. Although all the judges on the panel agreed that Rizo’s case should go forward, the court splintered in arriving at a rationale for the decision. The only opinion that garnered as many as 5 votes held that reliance on prior pay was wrong because it perpetuated sex-based pay gaps when women change jobs. However, that opinion was written and joined by the late Stephen Reinhardt, who died before the decision could be issued.

That unfortunate event gave the Supreme Court an opportunity to vacate the case without addressing the vexing issue of the meaning of the EPA – an issue that has split a number of appellate circuits and which seems ripe for Supreme Court review. The grounds on which the Supreme Court’s ruling was based was simply that Judge Reinhardt could not be counted among those who support the 9 ^th Circuit’s ruling because he died before the decision was issued. This was an impermissible exercise of judicial power from beyond the grave. As an unidentified wag on the High Court wrote: “federal judges are appointed for life, not for eternity.”

The 9 ^th Circuit will likely appoint a new en banc panel and issue on new ruling, perhaps on similar grounds. In the meantime, the Supreme Court can continue to evade an important ruling on the reach and meaning of the Equal Pay Act at a time when efforts to amend it are before the Congress – again.

OFCCP to Issue 2019 CSALs; Focused Reviews Are Announced

Fri, 22 Feb 2019 20:07:00 GMT

The OFCCP has just announced that they are, “on schedule to post its next Corporate Scheduling Announcement List (CSAL) in OFCCP’s FOIA Library in mid-to-late March 2019.” As a result, OFCCP will soon be issuing notices to 3,500 federal contractors in the next month. In the past, CSALs, which are alerts from OFCCP informing contractors that their establishment has been selected for an audit, were mailed directly to the contractor. Now the agency will post the CSALs on its website with contractors responsible for learning on their own if they are to be audited.

The Agency also announced that 500 of the CSALs would be for a new kind of targeted compliance evaluation – a focused review. These focused reviews are aimed at ensuring compliance not only with Executive Order 11246 but particularly with Section 503 of the Rehabilitation Act and the Vietnam Era Veterans’ Readjustment Assistance Act (“VEVRAA”), that is, the laws designed, in large part, to protect individuals with disabilities. The focused review will always include on-site interviews with compliance managers and protected employees, as well as reviewing recruiting, hiring, and accommodations data. To view a copy of the scheduling letter that will be used for OFCCP’s focused reviews, click here .

Register here to join a complimentary FortneyScott “Lunch & Learn” webinar: Preparing for OFCCP Focused Reviews, to be presented on February 27, 2019 at 12 noon, EST.

There will also be changes to the traditional compliance review. Once the scheduling letters are received, contractors will have 30 days in which to submit their Affirmative Action Plans (AAPs) and the other items required by the scheduling letter and itemized listing. In order to facilitate a timely submission, the assigned compliance officer will contact the contractor within 15 days of the contractor’s receipt of the Scheduling Letter to offer technical assistance.

OFCCP will grant a one-time 30-day extension for submission of supporting data related to the EO 11246, VEVRAA and Section 503 AAPs, provided the contractor:

Failure to submit AAPs and/or supporting data timely, with approved extensions, will result in an immediate Show Cause Notice .

Please contact your FortneyScott attorney or send an email to info@fortneyscott.com for more information on this new extension policy or for assistance in preparing AAPs and responses to Scheduling Letters. As more information about the focused reviews becomes available, it will be posted on this site.

New OFCCP Directive Establishes Voluntary Enterprise-wide Program

Thu, 14 Feb 2019 22:18:00 GMT

The OFCCP issued its latest directive, Directive 2019-04 , on February 13, 2019, outlining its new Voluntary Enterprise-wide Review Program (VERP). The new program is designed to facilitate and confirm “enterprise-wide (corporate-wide) compliance by high-performing contractors and those aspiring to reach the top through individualized, corporate-wide compliance assistance.”

Contractors selected to participate in the VERP will be removed from the pool of contractors scheduled for compliance evaluations. There will be two-tiers of contractors: the top tier will include top-performing contractors with corporate-wide Diversity and Inclusion programs; the second tier will be contractors who are OFCCP compliant but need individualized compliance assistance to become top performers. Criteria for the top tier will be more stringent.

To participate in the program, contractors must demonstrate that they meet established criteria that verify not only basic compliance with OFCCP’s requirements, but a demonstrated commitment to and application of successful equal employment opportunity programs on a corporate‐wide basis. A “top-tier” contractor can remain in the program for a period of five years while those at the second level can remain in the program for three years and receive individualized compliance assistance to become a top performer. Any contractor selected must agree during that period to provide periodic reports and information to OFCCP through which OFCCP can confirm the contractor maintains a workforce free of discrimination or other material violations and also agree that OFCCP retains the right to conduct individual and/or third party complaint investigations to assure “the contractor abides by all terms of the agreement.” It is not yet clear how OFCCP will make the distinction between “top-tier” and “second level” contractors.

Beginning in FY 2020, applicants will apply electronically online. They will then be subject to the OFCCP corporate headquarters compliance review and compliance reviews of other establishments. Contractors who do not qualify for the program will be returned to the pool of contractors for audit.

OFCCP states that this directive enables the agency to “blend its compliance evaluation and compliance assistance activities to work with high-performing contractors toward a mutual goal of sustained, enterprise-wide (corporate-wide) compliance, outside OFCCP’s neutral establishment-based scheduling process” as well as complementing the goals in its Early Resolutions Procedures.

House Education & Labor Committee Hosts a Joint Subcomittee Hearing on the Proposed Paycheck Fairness Act

Wed, 13 Feb 2019 22:39:00 GMT

Another important plank in the Democrats’ legislative agenda was given an early hearing on Wednesday, February 13, 2019. A joint hearing on the proposed Paycheck Fairness Act (H.R. 7, S. 270) was held at that time by the House Subcommittees on Civil Rights and Human Services and on Workforce Protections. An earlier version of Paycheck Fairness Act was passed by the House in 2008 and 2010, but never passed the Senate. A similar fate is all but certain in this instance, but one purpose of offering the Act now was to set an agenda for the future.

The latest version of Paycheck Fairness Act would amend the Equal Pay Act of 1963 by substantially limiting the affirmative defenses, increasing protections from retaliation, prohibiting employers from asking for or using prior salary to set current pay, and allowing recovery of compensation and punitive damages. In addition, like its predecessor proposals, it instructs EEOC to collect pay data from employers and also to collect “compensation data and other employment-related data (including hiring, termination, and promotion data) disaggregated by the sex, race, and national origin of employees.” OFCCP is again directed to implement a similar survey to be given to half of its nonconstruction contractor establishments each year. The bill also instructs OFCCP not to use multiple regression or anecdotal evidence in its compensation discrimination cases. It further directs the Department of Labor to establish negotiation training for girls and women and a national pay equity in the workplace award among other salary related requirements.

The hearing included testimony from Rep. Rosa L. DeLauro (D-CT), a co-sponsor of the bill; Rep. Eleanor Holmes Norton (D-DC); and Rep. Don S. Breyer, Jr. (D-Va.); Fatima Goss Graves, CEO and President of the National Women’s Law Center; Camille Olson, Partner at Seyfarth Shaw; Kristin Rowe-Finkbeiner, CEO of Moms Rising, and Jenny Yang, former EEOC Chair and Partner of Working Ideal.

As noted, the bill will in all likelihood pass the House but, as in the past, will fail in the Senate at this time. Click here for written transcripts of the witnesses’ testimony and video of the joint subcommittee hearing.

OFCCP Focused Reviews of Accommodations Compliance Announced

Tue, 12 Feb 2019 17:56:00 GMT

OFCCP Director Craig Leen announced that the agency will be posting 500 Corporate Scheduling Announcement List (CSALs) on its website “in the spring” that will be for “focused reviews” of contractors’ Section 503 and VEVRAA compliance. The focused reviews will aim corporate-wide as opposed to establishment compliance. FortneyScott has learned that OFCCP recently received OMB approval for a revised scheduling letter for these focused Section 503 reviews and a copy of that scheduling letter is here . The focused review CSALs will be part of the 3500 CSALs to be issued this spring.

Contractors should review the Section 503 focused review scheduling letter now so that they can be prepared if they are on the CSAL list. Remember that contractors will not be receiving CSAL letters but rather will have to check the OFCCP FOIA Library webpage .

The focused review CSAL’s are the product of OFCCP’s Directive 2018-04, issued on August 10, 2018, which stated that OFCCP will conduct focused reviews of contractor compliance with (1) Executive Order 11246, (2) Section 503 of the Rehabilitation Act of 1973 (Section 503), and (3) the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). The focused reviews will be based on onsite visits to perform a comprehensive review of, for example, the Self-ID and accommodations process for affected applicants and employees. OFCCP pledges to provide a “standard protocol” for the reviews to be published in FAQs prior to the posting of the next scheduling list.

For more information on focused reviews and the coming CSAL notices contact your FortneyScott attorney.

EEOC Postpones EEO-1 Filing Deadline

Fri, 01 Feb 2019 16:38:00 GMT

EEOC has just announced that the deadline for submitting EEO-1 Surveys will be extended to May 31, 2019. EEO-1 is an annual survey in which all private employers with more than 100 employees and federal contractors and subcontractors with 50 or more employees are required to file the EEO-1 report. According to the EEOC, this was done because of the government shutdown which resulted in a “ partial lapse in appropriations .”

For more information please contact your FortneyScott attorney.

Overtime Exemption Regulation Submitted for Review

Thu, 10 Jan 2019 23:11:00 GMT

We have learned that the long-awaited proposed regulation regarding overtime pay exemptions (the “White Collar Exemption Regulation”) has been submitted by the Department of Labor to the Office of Management and Budget (OMB) for review. Although there is no deadline for this initial review, the start of the oversight process indicates that the proposed regulation will be published for notice and comment in the near future.

The publication of the proposed regulation is only the beginning of the process. Once published, the public—including, particularly, affected employers—will have an opportunity to comment on the proposal during a required “notice and comment” period. This period is often 90 days, but for regulations with significant economic impact, the comment period may be longer and can be extended. This is an important step, and is the process for ensuring that employer’s views are considered by DOL as part of the rulemaking process.

In 2016, the Obama Administration published an overtime regulation that would have altered long-standing exemptions and raised the overtime pay threshold from $23,660 annually to $47,476. Many positions once considered executive, administrative or professional would, thus, be subject to overtime pay. Further, the pay threshold would be indexed to wage growth and updated once every three years. This regulation was challenged and enjoined by the courts. A new overtime rule has been promised by the Trump Administration.

FortneyScott will closely monitor this development and keep you informed. Additionally, we will be filing comments on behalf of clients after the proposed regulations are published.

For more information please contact your FortneyScott attorney or email us at info@fortneyscott.com .

OFCCP Officially Names Craig Leen as Permanent Director

Wed, 26 Dec 2018 18:00:00 GMT

Craig Leen, formerly the acting director of the Office of Federal Contract Compliance Programs, was named the agency’s permanent leader by the Department of Labor on December 26th. Leen took over for the previous politically appointed director in July. The position does not require Senate confirmation.

Six OFCCP Predictions for 2019

Thu, 20 Dec 2018 21:52:00 GMT

The second year at the OFCCP under the Trump Administration has been marked by activity – two Directors and nine Directives (which have limited enforceability according to the Department of Justice) – but little to show for it: $10 million less in recoveries than FY2017, and fewer audits than in any recent fiscal year. As 2019 begins, however, the agency has begun to make some of the changes federal contractors have been hoping to see since the end of the Obama Administration.

Based on what has happened in 2018, the OFCCP Practice Group attorneys at FortneyScott offer the following six OFCCP predictions for 2019:

We wish you the best for 2019, and we are happy to answer any questions that you may have about OFCCP compliance matters.

David S. Fortney

Jacqueline R. Scott

H. Juanita Beecher

Elizabeth B. Bradley

Burton J. Fishman

Sean D. Lee

Sara Nasseri

Consuela A. Pinto

Mickey Silberman

Leslie E. Silverman

DoD Issues new Other Transactions Guide

Thu, 06 Dec 2018 21:08:00 GMT

This week the Office of the Under Secretary of Defense for Acquisition and Sustainment (USD (A&S)) rescinded the January 2017 version of the Other Transactions (OT) Guide for Prototype Projects and issued a OT agreements (OTAs) are not Federal Acquisition Regulation (FAR)-based procurement contracts, grants, or cooperative agreements. As enunciated under the new OT Guide, OTAs are intended to utilize more commercial arrangements to accomplish particular projects. While OTAs are subject to certain laws and provisions, they are not required to comply with the full panoply of procurement laws and regulations, such as the FAR and agency-specific supplemental acquisition regulations, applicable to FAR-based contracts.

Statutory authority for OTAs traditionally has been used to allow Department of Defense (DoD) to enter into agreements for new research, prototype development, and limited production. This also includes Technology Investment Agreements (TIAs). Revision of statutory authority has expanded the definition of non-traditional defense contractor (NTDC) and the use of OTAs to permit appropriate follow-on production agreements. DoD uses OTAs to access state-of-the-art technology solutions from traditional defense contractors, non-traditional defense contractors that do not typically engage in contracts with the federal government, consortia, or through teaming arrangements involving these or other types of entities.

The OT Guide provides a useful compendium of information on OTA authority, processes, administration and resources. It includes a set of definitions, mythbusters, authorities, as well as examples of OTA arrangements, to clarify for both Government and industry the nature and scope of OTAs.

Takeaways:

DoD is seeking access to state-of-the-art technology solutions.

OTAs provide one avenue through which NTDCs as well as traditional defense contractors, may be able to engage in research, prototyping, and appropriate follow-on production.

OTAs are not cookie-cutter. The nature and scope of an OTA, as well as the terms, rights, and available remedies, are governed by the controlling statutory and policy provisions of the agency, and the negotiation and agreement of the parties. OTAs can be issued to an individual entity, team, consortium, or a combination of entities. It is wise to consider all aspects and options, including, for example, the nature of the problem; your proposed solution; terms for successful completion; the availability of your own, potential team members, and the DoD resources; cost-share and funding; and intellectual property rights needs, when seeking to work in this space.

Susan Warshaw Ebner , one of FortneyScott’s shareholders, has experience in OTAs and TIAs, as well as traditional FAR-based procurements, grants and cooperative agreements. If you have questions about this advisory, or seek assistance with regard to these types of transactions, please contact Susan Warshaw Ebner or your FortneyScott counsel.

OFCCP Issues Three New Directives

Fri, 30 Nov 2018 20:07:00 GMT

Today, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) made a significant announcement affecting federal contractors. First, under a new directive, DIR 2019-01, OFCCP rescinded Active Case Enforcement for compliance reviews. Second, DIR 2019-02 outlines new Early Resolution Procedures which will offer a five-year break from agency audits in exchange for reporting certain employment data to resolve audits. Finally, OFCCP officially stated that it will be issuing opinion letters that offer compliance guidance.

The new DIR 2019-02 , Early Resolution Procedures (ERP), offers five years of respite from audits to contractors who are settling bias claims with the OFCCP, in exchange for contractors reporting hiring, pay, and other employment data to the agency. The ERP provides the mechanism by which OFCCP staff may resolve violations and work with the contractor to develop corporate-wide corrective actions.

OFCCP also issued DIR 2019-03 in which it announced that it will begin issuing opinion letters, similar to the Labor Department’s Wage & Hour Division, offering guidance on how contractors can comply with their affirmative action and nondiscrimination obligations based on specific factual scenarios. It also outlined plans to enhance its current Help Desk capabilities. The Directive also states that OFCCP may consider whether a contractor’s actions are consistent with an opinion letter, FAQ, or help desk advice when considering whether to cite the contractor for a violation.

Finally, the agency issued Directive 2019-01 , rescinding Active Case Enforcement (ACE), DIR 2011-01. According to Directive 2019-01, the agency’s recent directives on Transparency in OFCCP Compliance Activities, DIR 2018-09; Affirmative Action Program Verification Initiative, DIR 2018-07; and Focused Reviews, DIR 2018-04 have embedded the most effective parts of ACE and ACM into its standard operating policies and procedures, so the ACE directive is no longer necessary.

BOTTOM LINE: While the new directives provide welcome new ways to resolve issues with the OFCCP, the question will be whether the “new” OFCCP will be any more reasonable in resolving those issues than the “old” OFCCP. How these directives will be implemented remains to be seen. The attorneys at FortneyScott will monitor implementation of the new directives and keep you informed of on ongoing developments. If you have any questions, contact your FortneyScott attorney.

ABA 12th Annual L&E Law Conference – Wage and Hour Update: What Has Really Changed Two Years into the Trump Presidency?

Mon, 05 Nov 2018 16:59:00 GMT

David S. Fortney, Esq. is presenting on Friday November 9th. Please click here to register for this event.

EEOC Public Meeting on “Revamping Workplace Culture to Prevent Harassment”

Fri, 02 Nov 2018 16:41:00 GMT

The EEOC held an important public meeting on “Revamping Workplace Culture to Prevent Harassment” on October 31, and Sara Nasseri, an attorney from FortneyScott, attended. Continue reading to find out recommendations and best practices for employers in the current environment in which there is growing awareness and complaints about harassment and discrimination in the #MeToo environment.

The meeting focused on the EEOC’s efforts in addressing sexual harassment in the workplace. The meeting was an open discussion between EEOC’s leaders and various witnesses and experts in the field on steps that employers, and the community as a whole, should take in the wake of the growing momentum of the #MeToo movement. The areas that were discussed and that offer the key points for employers’ compliance efforts include:

The EEOC’s Substantial Efforts : Acting EEOC Chair Victoria Lipnic reviewed EEOC’s efforts to date. For decades, the EEOC has investigated and litigated all types of harassment in all types of workplaces. When the #MeToo movement began about a year ago, EEOC was already leading efforts. Indeed, the agency’s focused efforts began about three years ago with the creation of the Select Task Force on the Study of Harassment in the Workplace which comprised of 16 members from around the country from a range of industries. After 18 months of extensive study, a detailed report was issued by the EEOC Co-Chairs, which echoed the same themes of company culture, leadership and accountability, and policies, procedures, and training that were voiced during the public meeting. The task force reconvened this past June. The Acting Chair and Commissioners stressed the role the EEOC has been trying to take as an enforcer, educator, and leader.

The Panelists Presentations : Seven panelists, ranging from a management labor and employment attorney to a rape and sexual assault survivor and activist, presented their testimonies on their perspectives on the issue and their recommendations for the EEOC. All panelists were questioned on various aspects of their testimonies and each was given an opportunity to really engage with the agency from both a personal and a professional perspective.

The key takeaways from the panelists include:

Next Steps for Employers : Company culture was underscored and it was strongly recommended that employers “own” their culture down to the individual workplace level. Employers training and response efforts must be broad enough and targeted enough not only regarding harassment on the basis of sex but on all bases of unlawful discrimination, and across all industries. Well-counseled employers are going well beyond the traditional, narrowly focused sexual harassment training.

If you have questions or need assistance on how your company can navigate the complexities and ever-evolving nature of the #MeToo movement, related training, or if you need more information about EEOC’s stepped up enforcement efforts, please contact Sara Nasseri or your FortneyScott attorney.

FortneyScott Joins Forces to Support Supreme Court Review of Rizo Prior Pay Decision

Fri, 19 Oct 2018 22:05:00 GMT

In the wake of the Ninth Circuit’s decision in Rizo v. Yovino , FortneyScott, on behalf of the Society for Human Resource Management (“SHRM”), partnered with the U.S. Chamber of Commerce to file a brief for amici curiae in support of the employer’s petition for writ of certiorari on October 4. At issue before the Supreme Court is whether prior salary is a “factor other than sex” as defined by the Equal Pay Act (“EPA”).

The Ninth Circuit decision unanimously held that “any other factor other than sex” is limited to legitimate, job-related factors such as a prospective employee’s experience, educational background, ability, or prior job performance. As such, the Ninth Circuit held that allowing an employer to justify a wage differential between men and women on the basis of prior salary is wholly inconsistent with the provisions of the EPA. However, the Court left open the possibility that prior salary could potentially play a role in individualized salary negotiations.

In light of the Ninth Circuit decision, Yovino filed a petition for writ of certiorari on August 30. As a result, a number of key employer-side groups, including SHRM, expressed support for U.S. Supreme Court review in order to clarify the significant and important question of whether employers can rely on prior salary history in setting workers’ wages. The support for Supreme Court review is also strengthened by the fact that there is a deep circuit split on the ability and legality of employer’s reliance on prior salary and a Supreme Court decision would result in a uniform policy across the nation for all employers.

We expect the U.S. Supreme Court to issue a decision on the petition for writ of certiorari by the end of this year. In the meantime, if you have any questions or assistance on how to navigate the complexities surrounding pay practices, or if you are interested in learning more about the status of the case generally, contact your FortneyScott counsel.

Breaking OFCCP News

Wed, 19 Sep 2018 22:37:00 GMT

Directive (DIR) 2018-08 addresses transparency by the OFCCP in all stages of compliance activities to help contractors comply with their obligations and understand their expectations during a compliance evaluation. The Directive instructs OFCCP staff, from the regional level to the national office, to take measures to be as transparent as possible during each stage of the evaluations, beginning with the scheduling and ending with the conciliation efforts. For a copy of this Directive, click here.

Directive (DIR) 2018-09 reveals a plan to implement an Ombud Service in the OFCCP’s national office to facilitate the “fair and equitable resolution” of specific types of concerns raised by external stakeholders, which would include federal contractors and subcontractors and law firms. This plan stems from feedback received by the various stakeholders during the past year and is an effort by the OFCCP to increase transparency and improve communication. For a copy of this Directive, click here .

OFCCP Issues CSALs & New Extension Requirements

Fri, 07 Sep 2018 21:20:00 GMT

On September 7, 2018, OFCCP announced that it mailed 750 new Corporate Scheduling Announcement Letters (“CSALs”) to federal contractors as a supplement to the Fiscal Year 2018 Scheduling List released on March 19, 2018. The agency stated that the CSALs are a “45-day” courtesy notice prior to sending the OMB-approved scheduling letters. Once the scheduling letters are received, contractors will have 30 days in which to submit their Affirmative Action Plans (AAPs) and the other items required by the scheduling letter and itemized listing. Therefore, according to OFCCP, “all contractors on the current list are receiving a minimum of 75 days advance notice to have their AAPs ready.”

In a change outlined in an FAQ entitled “ Requesting Extensions to Submit AAP(s) and Supporting Data ,”

OFCCP reinforced that contractors are obligated to submit their EO 11246, VEVRAA and Section 503 AAPs and supporting data within 30 days of the receipt of the Scheduling Letter and Itemized Listing. In order to facilitate a timely submission, the assigned compliance officer will contact the contractor within 15 days of the contractor’s receipt of the Scheduling Letter to offer technical assistance and explain allowable extensions for the AAPs and supporting data.

With respect to allowable extensions, OFCCP will grant a one-time 30-day extension for supporting data related to the EO 11246, VEVRAA and Section 503 AAPs, provided the contractor:

The FAQ makes clear that OFCCP will generally not allow extensions for the submission of EO 11246, Section 503 and VEVRAA AAPs, or allow extensions for supporting data if requested after the submission date for the AAPs has passed although it reserves discretion to grant such extensions in extraordinary circumstances. Failure to submit AAPs and/or supporting data timely, with approved extensions, will result in an immediate Show Cause Notice.

In a separate release, the OFCCP provided an updated version of its Methodology for Developing the Supplement to the FY 2018 Supply & Service Scheduling List .

Bid Protests: A Way To Raise Your Procurement Concerns

Thu, 06 Sep 2018 02:09:00 GMT

September 30th is the end of the Federal government’s fiscal year. Federal agencies spend significant portions of their annually appropriated funds entering into new contracts and exercising options on existing ones during the last quarter of its fiscal year. Government contracting rules require that Federal agencies conduct these procurements in accordance with the stated terms of the specific solicitation. The terms of the solicitation must be based on the procuring agency’s true needs and must not contain requirements that would unfairly restrict competition. The agency’s designated contract and evaluation officials must act in a fair and objective manner, free from any impermissible conflict of interest, when making determinations during the procurement process. Their evaluations and the ultimate award decision must be in accordance with the procurement’s stated evaluation and award criteria.

Because the Federal government wants to ensure that its procurements are fairly and properly conducted, it affords actual or potential offerors the opportunity to protest specific matters relating to the agency’s procurement. For example, if you are a potential offeror who believes the terms of a solicitation are defective or unduly restrictive, you may have grounds to file a preaward bid protest to challenge the terms of the solicitation. If you are an actual bidder or offeror who believes that you have not been fairly evaluated and considered for award in accordance with the terms of the solicitation, or that the decision to award the contract to another offeror was defective, then you may have grounds to file a post award bid protest.

If you are eliminated from the competitive range or not awarded the contract, you also may have the right to request a required debriefing to obtain more information prior to protesting.

Small businesses also have protest rights to challenge small business set-aside procurement size standards or the size or eligibility of an actual or proposed small business awardee under a small business set-aside procurement.

Bid protests can only be filed by interested parties, in specified forums, and within specified times in the procurement process. Depending on the circumstances and timing of the protest, you may be able to obtain a stay of the procurement pending the disposition of the protest.

Key Takeaways:

The rules governing procurements, debriefings and protests are myriad. If you have concerns about a particular procurement, find out your rights and options. Well-articulated concerns, timely raised with the appropriate official and forum, can help ensure your challenge is appropriately considered. FortneyScott will be hosting a bid protest lunch and learn webinar in September. If you have questions about how to raise your concerns in a procurement, debriefing or protest, or are interested in learning more about this upcoming webinar, contact Susan Warshaw Ebner or your FortneyScott counsel.

OFCCP Issues New Compensation, Recognition and Certification Directives

Fri, 24 Aug 2018 21:48:00 GMT

On August 24, 2018, OFCCP issued three new Directives, the most important of which rescinded the Obama Administration’s Directive 307, “Procedures for Reviewing Contractor Compensation Systems and Practices.” The agency also issued Directives creating a program to certify that contractors have prepared an Affirmative Action Plan (AAP) and are in compliance with federal affirmative action program requirements, and an initiative establishing a recognition program for contractors with high-quality and high-performing compliance programs and initiatives.

According to the agency, these Directives are part of the Department’s efforts to maximize the effectiveness of compliance assistance outreach.

The team at FortneyScott is reviewing these Directives in detail and determining what impact these new policies will have on federal contractor compliance and, more importantly, what next steps contractors should take to ensure compliance with the three new directives. Please contact your FortneyScott attorney or send an email to info@fortneyscott.com for more information.

OFCCP Issues Two New Directives Addressing Religious Freedom Protections and Announcing New Focused Reviews

Fri, 10 Aug 2018 23:25:00 GMT

On August 10, 2018, OFCCP’s Acting Director Craig Leen issued two new policy directives aimed at protecting Americans’ religious freedom and announcing new focused reviews. The directives call for protecting the rights of religion-exercising organizations and individuals and more comprehensive reviews of contractor compliance, respectively.

Directive (DIR) 2018-03 instructs OFCCP staff to take into account recent U.S. Supreme Court decisions and White House Executive Orders that protect religious freedom and afford broad anti-discrimination protections to religion-exercising organizations and individuals under the United States Constitution and federal law. The Directive incorporates recent developments in the law regarding religion-exercising organizations and individuals. OFCCP staff are instructed to take these legal developments addressing religious freedoms into account in all their relevant activities, including when providing compliance assistance, processing complaints, and enforcing the requirements of E.O. 11246. For a copy of this Directive, please click here .

Directive (DIR) 2018-04 provides that the OFCCP will conduct focused reviews of contractor compliance with (1) Executive Order 11246, (2) Section 503 of the Rehabilitation Act of 1973 (Section 503), and (3) the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). To ensure compliance, OFCCP will conduct the focused reviews by going onsite and performing a comprehensive review of the particular authority at issue. For example, if it is a Section 503 focused review, the compliance officer would review policies and practices of the contractor solely related to Section 503 compliance. The review would include interviews with employees affected by the policies, as well as those responsible for equal employment opportunity and compliance. OFCCP would also look to evaluate hiring and compensation data. This type of review would be used in each of the three types of focused reviews to ensure compliance with anti-discrimination obligations and equal employment opportunity. For a copy of this Directive, please click here.

The OFCCP’s News Release can be found here . The team at FortneyScott is reviewing these directives in detail and determining what impact these new policies will have on federal contractor compliance and, more importantly, what next steps contractors should take to ensure compliance with the two new directives. Please contact your FortneyScott attorney or send an email to info@fortneyscott.com for more information.

OFCCP Director Ondray Harris Leaves – What to Expect from OFCCP Next?

Tue, 07 Aug 2018 22:16:00 GMT

As July was coming to an end, the U.S. Department of Labor announced that Ondray Harris would leave his role as OFCCP Director, effective July 27. Thereafter, Deputy Director, Craig Leen, was appointed the Acting Director of OFCCP. The news came a week before federal contractors and OFCCP representatives gathered in Anaheim, California at the 2018 Industry Liaison Group National Conference. Acting Director Leen took center stage and was the lead spokesperson for the agency at the National ILG Conference.

Acting Director Leen opened the Conference by outlining the agency’s four areas of focus: Transparency, Certainty, Efficiency, and Recognition. He provided some detail with respect to these general areas. Leen also discussed his commitment to affirmative action generally. However, as a strong advocate for individuals with disabilities, he announced that in 2019, the agency will begin conducting focused reviews of contractors’ compliance with Section 503’s affirmative action requirements. Leen also discussed the contractor’s “ Bill of Rights , ” which OFCCP issued on August 1. The Bill of Rights constitutes a significant change in the agency’s stance toward contractors, giving substance to prior promises of greater transparency and consistency and signals an end to the OFCCP’s adversarial approach to compliance evaluations. Additionally, Leen confirmed that pay equity remains a focus of the agency, announced that OFCCP is in the process of implementing an annual AAP certification, and is considering re-instituting a contractor award program. Finally, Leen committed to moving compliance reviews more quickly.

Stay tuned for more FortneyScott updates, specifically with regard to official confirmation of a new OFCCP Director, and any further updates on the direction the agency will take moving forward.

Be Sure To Exercise Care In Vetting Your Supply Chain

Thu, 19 Jul 2018 15:42:00 GMT

Now, more than ever before, contractors need to employ good contracting and subcontracting practices to secure their supply chains. Government contractors are required to deliver what they promise in their proposals and, ultimately, under their contracts. As a prime contractor, or higher tier subcontractor, you are responsible for the integrity and compliance of your supply chain. Recent developments may make that supply chain a potential trap for the unwary unless you are taking adequate steps to vet your suppliers:

Key Takeaways –

A safe and secure supply chain is in everyone’s interest. If you are a government contractor or subcontractor and have questions about your supply chain responsibilities, or the impact of these supply chain risk rules and requirements, contact Susan Warshaw Ebner , or your FortneyScott contact, for assistance.

Supreme Court Rules in Favor of Cake Baker in Landmark LGBT Case… But Fails to Provide New Guidance

Mon, 04 Jun 2018 18:50:00 GMT

The U.S. Supreme Court ruled in favor of a baker in Colorado who refused to bake a wedding cake for a same-sex couple based on his Christian beliefs in a 7 to 2 decision issued on June 4. In Masterpiece Cakeshop, Ltd. v Colorado Civil Rights Commission, the majority opinion written by Justice Kennedy concluded that the wedding cake baker did not get a fair hearing on his complaint in the state proceedings, and specifically ruled that there was improper bias by the Colorado Civil Rights Commission. Although the Supreme Court discussed the tension between the two legal rights – the EEO protections for gay persons on the one hand versus the sincerely-held individual religious beliefs on the other hand – the Court did not rule on the ultimate question as to how such conflicts are to be resolved. Although the ruling fails to provide any new criteria under which there may be an exemption to the general anti-discrimination laws based on an individual’s sincerely held religious views, the Court reaffirmed that the First Amendment’s protections of religious rights also protects individuals during the proceedings for resolving discrimination claims.

The highly anticipated ruling in Masterpiece Cakeshop comes after years of litigation. In 2012, David Mullins and Charlie Craig met with bakery owner Jack Phillips to order a custom wedding cake for their reception. Phillips refused to make them a cake and indicated that the bakery would not sell wedding cakes to same-sex couples. Subsequently, Mullins and Craig filed complaints with the Colorado Civil Rights Commission, which enforces the Colorado Anti-Discrimination Act (CADA) alleging sexual orientation discrimination. The Commission then determined that the bakery had violated CADA and Phillips appealed. In 2015, the Colorado Court of Appeals affirmed the Commission’s ruling over Phillips’ arguments that he had a constitutional right to refuse to bake the cake based on his First Amendment rights. The Supreme Court granted certiorari on June 26, 2017.

Justice Kennedy, writing for the majority, emphasized that Phillips was entitled to a neutral decision-maker who would give full and fair consideration to his religious objection. The Court did not discount the impact and significance of CADA but instead, focused on the importance of providing a fair and neutral forum for resolving the claims. Justice Kennedy noted that it is unexceptional that the CADA “…can protect gay persons in acquiring products and services on the same terms and conditions that are offered to other members of the public, the law must be applied in a manner that is neutral toward religion.” The Court concluded that the Commission’s treatment of Phillips’ case violated the state’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.

In the dissent, Justice Ginsburg emphasized that these circumstances do not evidence hostility to religion of the kind the Court has previously held to signal a free-exercise violation. Additionally, the dissent argued that any comments signaling any sort of hostility cannot justify reversing the judgment below.

While a victory for the baker in this case, the ruling is fact-intensive and based on narrow and unusual facts. Justice Kennedy recognized the narrowness of the ruling stating that, “[T]he outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue respect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.” Indeed, there already are appeals pending, including one before the Supreme Court from a florist in Washington who has appealed a state ruling that found she violated state law for refusing to provide the wedding flowers for a same-sex couple. We will stay tuned.

For the full update on the Supreme Court’s ruling, click here .

Supreme Court Rules Class Arbitrations Can Be Barred By Agreement

Mon, 21 May 2018 18:52:00 GMT

The issue before the Court has been brewing since the NLRB’s D.R.Horton ruling in 2012. In a break with precedent, the Board ruled that class action prohibitions in arbitration agreements violated Section 7 of the National Labor Relations Act’s (“NLRA”) guarantee of collective action and, thus, was a valid exception to the strict requirement of the federal Arbitration Act (“FAA”). The FAA, a law otherwise broadly supporting arbitrations, includes a “saving clause,” which permits courts to refuse to enforce arbitration agreements “upon such grounds as exist at law or in equity for the revocation of any contract.” §2. Appeals courts have split on whether D.R.Horton expressed the proper application of the FAA in class arbitration cases and the matter was ultimately brought to the Supreme Court.

The Court majority found little ambiguity in the applicable laws. Among the rationales upon which the majority based its ruling were its conclusions that the saving clause was intended to save defenses arising from state law and federal statutes and, as a law of general application, saving clause in the FAA “permits agreements to arbitrate to be invalidated by ‘generally applicable contract defenses, such as fraud, duress, or unconscionability,'” (citing AT&T Mobility LLC v. Concepcion , 563 U.S. 333, 339 (2011). The Court noted “this means the saving clause does not save defenses that target arbitration either by name or by more subtle methods, such as by ‘interfer[ing] with fundamental attributes of arbitration.'” Id ., at 344.

Thus, the lengthy judicial – and philosophical – battle among jurists and workplace participants has ended. The “saga” of D.R.Horton has ended and arbitration agreements prohibiting class actions are licit.

The Court also rejected the argument that the NLRA, passed subsequently to the FAA, implicitly “amended” the prior statute or otherwise altered its effect. Commenting that the NLRA focuses on the right to form unions and bargain collectively, the Court pointedly notes that the NLRA is silent with respect to arbitration and shows no intent to modify the FAA. The Court dryly states

Our rules aiming for harmony over conflict in statutory interpretation grow from an appreciation that it’s the job of Congress by legislation, not this Court by supposition, both to write the laws and to repeal them. Slip Op. at 10

and goes on to note that the Supreme Court has consistently rejected attempts to “conjure” conflicts between the FAA and other states.

No report of this decision can be complete without noting the acerbity of the language in both the majority decision and the lengthy dissent. The 5-4 decision once again split the High Court along ideological grounds and the “battle lines” were once again distinctly drawn: the role of legislative history, the importance of legislative intent, the extent of judicial “activism” or “restraint” on behalf of whom. Justice Gorsuch also took this opportunity to articulate his position on the limits of the Chevron decision in parsing asserted “statutory ambiguities.”

In sum, Epic Systems can be read as a simple and straight-forward decision permitting the use of arbitration agreements that prohibit class actions. To careful readers, this decision indicates that a number of battles have yet to be waged on issues of workplace practice and social policy. And the make-up of the Court may be a chief determinant of the outcomes.

New Jersey Passes Landmark Equal Pay Act

Wed, 02 May 2018 18:55:00 GMT

While the EPA prohibits discrimination based exclusively on gender, the New Jersey law extends its protection to workers denied equal pay based on race, creed, color, national origin, nationality, marital status, sexual orientation, gender identity, disability, and age, among others.

The New Jersey law prohibits employers from providing members of a protected class a lower rate of pay “for substantially similar work, when viewed as a composite of skills, effort and responsibility,” a broader standard than the federal EPA’s “equal work” standard.

Like the EPA, the New Jersey law includes specific affirmative defenses, but the defenses under the new law are narrower and may be more difficult for employers to demonstrate. Specifically, a difference in pay is permitted under the New Jersey law only if it is the result of a bona fide seniority or merit system or the employer can justify a pay difference by demonstrating that:

This final catch-all exemption is narrower than the EPA’s catch-all exemption – the pay differential is based on a factor other than sex.

The New Jersey law also provides more generous damages than the EPA. Prevailing employees are entitled to three times the amount of the pay differential for the entire violation period, which can extend as far back as six years. In comparison, the liability period under the EPA is two years.

New Jersey joins Massachusetts, Oregon, and Washington in passing comprehensive equal pay legislation that become effective by January 1, 2019 or sooner. It is critical that employers, particularly those operating in multiple states, quickly get up to speed on their varying obligations. Moreover, proactive pay audits under the protection of attorney-client privilege and, where appropriate, pay adjustments, will put employers in the best possible position to defend against what we expect will be an increase in complaints of compensation discrimination.

FortneyScott’s Pay Equity practice is dedicated to guiding employers through the changing and challenging world of pay equity. Please reach out to us if we can help you think through these increasingly complex matters, to provide strategic and practical legal advice and counsel, and to help you get pay equity “right.”

EEO-1 Report Deadline Extended

Thu, 26 Apr 2018 18:55:00 GMT

The U.S. Equal Employment Opportunity Commission’s (EEOC) EEO-1 Joint Reporting Committee has extended the deadline for filing the 2017 reports to June 1, 2018.

Employers should check for a communication to the EEO-1 company contact introducing the new EEO-1 survey. Contact your FortneyScott attorney should you have any questions.

On “Equal Pay Day,” Growing Challenges – and Proactive Steps – For Employers to Consider

Mon, 09 Apr 2018 18:57:00 GMT

For 2018, April 10 ^th is “Equal Pay Day.” That is the day the typical woman must work into 2018 to get paid what the typical man was paid by the end of 2017. The pay controversy turns on whether there are legitimate reasons for the differences, e.g. , one employee produces more widgets than another, or whether the differences are due to unlawful discrimination. As on past years’ Equal Pay Days, civil rights groups, women’s groups and others will stage a high-profile campaign to highlight and seek to close the national “pay gap” between men and women workers and the even larger pay gap that exists between men and women of color. Here is just one example of the campaign that shines a bright light – for your employees to see – on Equal Pay Day and the continuing pay gap.

But the focus on pay equity and the national pay gap is no longer limited to one day each year on Equal Pay Day. Pay equality has quickly emerged as one of the most challenging issues employers face today. A growing patchwork of new, often differing, state equal pay laws (14 states passed equal pay laws in the past 18 months and another 18 states have proposed equal pay laws that are right now moving forward in their respective legislatures), increased agency enforcement, a rising tide of pay discrimination litigation, and your employees’ growing awareness of – and expectations for – equal pay all coalesce to make pay equity an issue employers must face proactively, or face the increasing risk of legal exposure and reputational harm.

So what is an employer to do?

One quickly emerging best practice is to conduct a proactive pay analysis – under attorney-client privilege – to identify those pay disparities (all employers have some) that can be explained by legitimate factors and those that can’t. It is the unexplained pay differences you should uncover, investigate and – where appropriate – address through equity adjustments that are thoughtfully designed and well-deployed to close the unexplained gaps while minimizing the chances of “blow back” claims from the employees who receive adjustments and other employees who do not.

OFCCP Issues Directive Requiring PDNs

Wed, 14 Mar 2018 00:00:00 GMT

OFCCP Director Ondray Harris? first public act as Director is to require a national, uniform practice at an agency not known for its uniformity. In Directive 2018-01 , Harris directed the Regional and District Directors to issue Pre-Determination Notices (PDN) in every compliance evaluation where the agency believes either individual or systemic discrimination findings may exist. Contractors will then have 15 calendar days to rebut the OFCCP?s proposed findings. Further, every PDN must be reviewed by the appropriate Solicitor?s office before being forwarded to the National Office for final review. The new directive takes effect immediately, and any Notice of Violation (NOV) not yet issued must be withheld until a PDN is first issued ?to allow contractors an opportunity to respond to the agency?s preliminary findings.?

In the past, PDN?s were reserved for matters of systemic discrimination, and the decision to issue a PDN was left to the discretion of the OFCCP District and Region. This led to varying practices across the country. Further, where PDNs were not issued, the NOV often curtailed conciliation efforts, and moved the compliance evaluation into a more adversarial posture. Harris? aim, as stated in the Directive, is ?to achieve consistency across regional and district offices, increase transparency about preliminary findings with contractors, and encourage communication throughout the compliance evaluation process.?

Although a great many compliance evaluations are closed without any findings of violations, this Directive is, nonetheless, a significant first step. Multi-jurisdictional contractors have been seeking greater consistency among the Districts and Regions of the OFCCP for years. For many of those contractors, working with different Regions of the OFCCP has seemed as if they were dealing with entirely different agencies of the federal government. As a result, any efforts by OFCCP to bring greater consistency are important. Further, the promise of an earlier notification of the agency?s findings, and an assurance that contractors will have an early opportunity to respond, holds out the hope that more meaningful communications will take place in a less contested context than that created by a NOV. Most significantly, the fact that PDNs will be reviewed by the National Office will likely have the effect of tempering the positions of the more aggressive Districts and Regions; all of which may lead to more amicable resolutions of compliance evaluations.

The hope among the contractor community is that this first step is followed by others regarding other facets of the audit process, bringing still more consistency and transparency to a process that has been going in the opposite direction.

OFCCP Issues 1,000 CSALs, and New Compliance Evaluations Will Commence in 2018

Mon, 05 Feb 2018 00:00:00 GMT

Federal contractors should be watching their mailboxes. On February 1, OFCCP mailed 1,000 Corporate Scheduling Announcement Letters and will begin mailing the formal Scheduling Letters on March 19, 2018.

OFCCP also announced significant modifications to its audit selection protocols including a limit of 10 establishments of a single contractor being placed on the scheduling list as well as no more than four establishments of a single contractor being placed in a single district office. Most significantly, OFCCP expanded the prior two-year audit grace period by now providing that no establishment with a review closed in the last five years will be placed on the scheduling list.

Contact your FortneyScott attorney for more information about how these changes may affect your company or contact FortneyScott for more information.

The full DOL announcement can be read HERE .

GAO Report Recommends Improvements in Federal Agencies? Oversight of Tech Industry

Fri, 01 Dec 2017 00:00:00 GMT

The Government Accounting Office (GAO) has issue d a report recommending improved oversight of the tech industry by EEOC and OFCCP because of the lack of women and African American workers in the industry. The GAO was asked to review the workforce trends in the technology sector and oversight by the federal enforcement agencies.

The GAO reviewed trends in the gender, racial and
ethnic composition of the technology sector workforce and the oversight by EEOC
and OFCCP of tech companies’ compliance with equal employment and affirmative
action requirements. After analyzing the workforce data from the American
Community Survey for 2005-2015; EEOC EEO-1 Reports for 2007-2015; and OFCCP data
on compliance reviews for FY2011 to 2016; and interviewing agency
officials, researchers and workforce, industry and company representatives, the
GAO found that while the percentage of minority technology workers increased
between 2005-2015, there was no growth for women or African Americans. Hispanic and Asian workers, however, made significant gains. Women, African Americans and Hispanics make
up a smaller percentage in the technology workforce-math, computing and
engineering-as compared to their representation in the general workforce while
Asians have a higher percentage in the technology workforce than in the general
workforce.

The GAO also found that although EEOC and OFCCP have
taken steps to enforce equal employment and affirmative action requirements,
both face limitations. The EEOC is limited by its complaint based focus and the
lack of industry based data. The OFCCP’s regulations and its
establishment-based limit its ability to hold contractors responsible for
compliance.

In response to these concerns, the GAO made 6
recommendations:

The Chair of the EEOC should develop a timeline to complete planned efforts to clean IMS data for one-year period and add missing industry code data.
OFCCP should analyze its internal process data from closed evaluations to understand the causes of delays during compliance evaluations and change the process accordingly.
The OFCCP should require contractors to disaggregate demographic data for the purpose of setting placement goals in AAPs rather than setting single goals for all minorities.
OFCCP should assess the quality of the methods used by OFCCP to incorporate consideration of disparities by industry into its process for selecting contractor establishments for compliance evaluation.
OFCCP should evaluate its current approach used for identifying entities for compliance review and determine what modifications are needed to reflect current workplace structures and location or to ensure subcontractors are included.
The OFCCP should evaluate the Functional Affirmative Action Program to assess its usefulness as an effective alternative to an establishment-based program and determine what improvement could be made to better encourage contractor participation.

Fortney
Scott is reviewing this report in detail and determining what impact these
recommendations will make on the tech industry, EEOC and OFCCP. Please contact
your Fortney Scott attorney for more information.

DOL Requests Comments for Draft Strategic Plan

Mon, 06 Nov 2017 00:00:00 GMT

On Tuesday, November 7, 2017, the U.S. Department of Labor (DOL) will publish a request for comments on its draft FY2018-2022 Strategic Plan in the Federal Register . The draft strategy plan itself can be found here or on the DOL website. The notice will open a period of 30 days in which stakeholders can comment on the draft Strategic Plan. The notice states that the draft Strategic Plan represents “the Secretary’s vision, the Department’s mission, and a description of how component agencies will achieve supporting goals and strategic objectives in the next four years.”

The draft strategic plan has a total of four goals. The first strategic DOL goal-Support the Ability of All Americans to Find Good Jobs-focuses on how to use DOL resources to close the current skills gap such as apprenticeships and training as well as how to increase the job opportunities for veterans and their spouses; for individuals with disabilities and working women. Interestingly, the Strategic Plan notes that the Bureau of Labor Statistics (BLS) should provide timely, accurate and relevant information on the labor market, working conditions and price changes. BLS was attacked by President Trump during the 2016 election for providing inaccurate data.

The second strategic goal-Safe Jobs and Fair Workplaces-outlines the plans for each of the enforcement agencies under the DOL. The common denominator for OSHA, MSHA, Wage & Hour, OFCCP, ILAB and OLMS is increased focus on compliance assistance to employers. The Wage and Hour Division specifically indicates it is planning to modernize its compliance assistance, while the OFCCP states that it will expand its compliance assistance and stakeholder engagement.

The third strategic goal-Promote Strong Workers’ Compensation and Benefits Programs-covers the DOL’s agencies that handle workers’ compensation, unemployment compensation, and retirement security.

The DOL’s Management Goal has the usual discussion of working more effectively, more efficiently and with more accountability. More to the point, however, is the DOL’s goal to upgrade its technology capability which would increase its ability to work smarter with fewer employees.

Surprisingly, the Strategic Plan does not mention how it will comply with the OMB initiative to restructure the federal government to reduce the size of the civilian workforce and eliminate unnecessary programs although the strategic plan although the plan indicates that reform plan initiatives will be inserted in the December revised draft.

FortneyScott is planning on preparing comments. If you are interested in participating, please contact David S. Fortney .

BREAKING: EEO-1 Report Component 2 (Pay and Hours Data) Suspended Indefinitely

Tue, 29 Aug 2017 00:00:00 GMT

On August 29, the Office of Information and Regulatory Affairs (“OIRA”), a division of the Office of Management and Budget (“OMB”), suspended “Component 2” of the revised EEO-1 Report. “Component 2” would have required employers with over 100 employees to submit W-2 compensation and FLSA hours worked information.

While this action by OIRA does not “kill” the Component 2 completely, it does relieve employers of their obligation to file W-2 and hours worked data by the March 31, 2018 deadline. Employers now do not need to undertake system changes that may have been required for these pending reporting obligations.

EEOC will be publishing additional guidance in the Federal Register, and Fortney Scott will report on these subsequent developments.

Panel to Hold Public Meeting on Federal Procurement and the Future of Bid Protests

Wed, 09 Aug 2017 00:00:00 GMT

The Section 809 Panel will hold public meetings at the Panel’s offices in Rosslyn, VA on August 14 ^th (Team meeting) and August 22 ^nd through August 24 ^th (Panel and Stakeholders meetings) to discuss bid protests of Federal procurements generally, and to specifically examine whether and to what extent the current bid protest processes at the Agency level, U.S. Government Accountability Office, and U.S. Court of Federal Claims should be continued and/or revised.

If you are interested in attending the August 14th meeting, please contact Susan Warshaw Ebner at sebner@fortneyscott.com .

Section 809 of the National Defense Authorization Act for FY 2016, as amended, requires the Department of Defense (“DoD”) to convene a panel of acquisition experts
from Government and the Defense Industry to research, review and make recommendations for streamlining and improving the efficiency and the effectiveness
of the defense acquisition process, and for maintaining and increasing DoD’s
technological advantage (the “Section 809 Panel”). The Section 809 Panel is continuing its efforts to reach out to the public for specific input and recommendations to address its designated goals this summer and continuing into the Fall. For more information on the Section 809 Panel and its reports, please click here .

If you are interested in learning more about the Section 809 Panel’s work and the public bid protest meetings currently scheduled, or have questions about Federal government contracting or the protest processes, please contact the head of our government contracts practice, Susan Warshaw Ebner, sebner@fortneyscott.com .
Please share this update with members of your organization who have government contracting responsibilities.

DOL Increases SCA Health and Welfare Benefit Level

Tue, 01 Aug 2017 00:00:00 GMT

Effective August 1, 2017, the prevailing health and welfare fringe benefits rate under the McNamara-O Hara Service Contract Act (the SCA) has been increased to $4.41 per hour a bump up from the previous rate of $4.27 per hour. The new rate was announced on July 25, 2017 in the Department of Labors (the DOLs) All Agency Memorandum 225 (AAM 225).

Notably, AAM 225 also introduces a special reduced health and welfare fringe benefit rate of $4.13 per hour for employees performing on contracts covered by Executive Order 13706, Establishing Paid Sick Leave for Federal Contractors (Paid Sick Leave EO). The revised levels announced in AAM 225 should be recognized and implemented for new contracts and modifications on and after August 1, 2017.

Interplay of Prevailing Benefit Rate and Paid Sick Leave EO Obligations

As a reminder, the Paid Sick Leave EO which became effective for contracts entered into after January 1, 2017, or contracts modified after the effective date requires certain federal contractors to provide up to 56 hours of paid sick leave annually. Because employer contributions made to satisfy the Paid Sick Leave EOs requirements cannot be credited toward the employers SCA fringe benefit obligation, the reduced rate of $4.13 was specifically created to reduce the financial burden on contractors by excluding the sick leave portion of the calculated health and welfare rate.

The High and Low Rate Calculation

The DOL has historically maintained two separate fringe benefit rates: a low employee-by-employee rate and a high (average cost) rate. Under AAM 225, the rates for each method are the same: $4.41 per hour . While the rates have differed in the past, since 2004, the rate has been the same for both methods; only the method of calculation differs.

Impact on Hawaii WDs

In Hawaii, employers are typically required by law to provide healthcare coverage for employees. Because the SCA does not allow contractors to claim credit towards fringe benefit obligations for fringe benefit payments required by law, Hawaii employers are faced with the unpleasant prospect of paying duplicate fringe benefits.

Accordingly, AAM 225 establishes a health and welfare benefit rate of $1.91 per hour for those employees for whom the contractor must provide healthcare benefits pursuant to Hawaii law. Moreover, for employees performing on contracts covered by both Hawaii's healthcare act and the Paid Sick Leave EO, the health and welfare benefit rate is further reduced to $1.63 per hour .

Conclusion

The reduced fringe benefit rate should help reduce the cost of compliance with the Paid Sick Leave EO and should be incorporated in contractors compliance plans.

DOL Publishes RFI on the Overtime Regulations

Tue, 25 Jul 2017 00:00:00 GMT

On July 26, the Department of Labor (DOL) will publish a Request for Information (RFI) on “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees” for the Overtime Regulations. The DOL requests comments

on
questions related to the salary level test, the duties test, inclusion of
non-discretionary bonuses and incentive payments to satisfy a portion of the
salary level, the salary test for highly compensated employees, and automatic
updating of the salary level tests. The deadline to submit comments is September 25, 2017.

Google Decision and Federal Contractors? Obligations to Provide Data to OFCCP

Fri, 21 Jul 2017 00:00:00 GMT

Overview: In a significant ruling addressing what additional information federal contractors must provide following the initial response to an OFCCP desk audit, a U.S. Department of Labor Administrative Law Judge ruled that there are significant limits on what OFCCP can demand. In OFCCP v. Google , the judge rejected most of OFCCP’s expansive multi-year data requests, and ruled instead that personnel data for only a second year, with protections for employees’ privacy, must be provided. The Google decision should be carefully reviewed by all federal contractors facing an OFCCP compliance evaluation to understand the limits on the Agency’s authority to request supplemental data and information. While the decision significantly reduced the data Google has to provide to OFCCP and was highly critical of OFCCP’s audit, the ruling should not be viewed as a complete win for federal contractors.

Background : The U.S .Department of Labor Administrative Law Judge (“ALJ”) Steven B. Berlin issued his delayed decision in OFCCP v. Google addressing OFCCP’s authority to collect additional data and information during a compliance evaluation on July 14, 2017.

OFCCP’s extensive data requests : In response to the initial Scheduling Letter, Google provided OFCCP its “snapshot” of employees as of September 1, 2015, which included all the compensation data required by Item 19. Subsequently, OFCCP requested Google supplement the snapshot with extensive information about the compensation and hiring programs and records and related data, and Google complied. Google also produced employees’ ID, country of citizenship, secondary country of citizenship, visa, and place of birth.

OFCCP then demanded that Google provide additional data for a second year for each employee employed by Google at its headquarters extensive, as well as complete salary history covering multiple years and personal contact information for up to 25,000 employees.

When Google refused to provide the data, OFCCP filed this action alleging the company failed to provide it with access.

The ALJ criticized OFCCP : The ALJ’s 40-page decision concluded that OFCCP didn’t understand and has “not taken sufficient steps to learn” about Google’s workforce practices, that it was motivated by “an animus that is difficult to understand” and that a key witness from the OFCCP was “evasive” on the witness stand. The ALJ further found the OFCCP’s public attacks on Google’s work practices were based on “little more than speculation;” that it had a reckless disregard for Google employees’ privacy; and that its overbroad data requests comprised a “willy nilly search everywhere and
anywhere.” All of this while noting that OFCCP was auditing a company, Google, who had been “co-operative”.

What data Google must provide : The ALJ significantly limited the breadth of OFCCP’s requests, and ruled that Google must provide OFCCP with the September 1, 2014 snapshot data required by Item 19. In addition, he determined that Google should include in the snapshot, employees’ year of birth as well as all of the additional
data requested, other than data related to starting salary. The ruling also applied a low threshold for OFCCP justifying its expanded requests for contractor data, and did not require OFCCP to disclose its “indicators” or justifications.

Although the ALJ rejected OFCCP’s demand for personal contact information for more than 25,000 employees, he held that Google must provide personal data for 5,000 Google employees despite the ALJ’s stated concerns about OFCCP’s ability to protect information. For these employees selected by OFCCP from the two “snapshots,” Google is to provide the agency with the employees’ name, and the personal address, telephone number, and email address to the extent Google had such information. OFCCP can subsequently request the same personal information for an additional 3,000 employees.

Portions of OFCCP’s requests were denied : The ALJ rejected OFCCP’s request for complete salary and job histories of Google employees, e.g. , for the entire period of employment for each employee, but stated that OFCCP could renew its request for the additional data if the Agency can show that its request is reasonable. The ALJ also
required that OFCCP engage with Google in “meaningful, good faith conciliation to resolve any dispute, including by showing why the information sought is reasonable, relevant, focused, and not unduly burdensome.”

Impact for future OFCCP reviews : Based on this decision, contractors may have
limited ability to refuse to provide OFCCP with data for a two-year period prior to the desk audit letter that the agency claims is relevant, unless the contractor can show the data is unreasonable, irrelevant, unfocused, or unduly burdensome and that OFCCP is refusing to conciliate on the data requested.

For more information on the impact of this decision contact your Fortney Scott attorney.

Trump FY2018 Budget Slashes DOL, Merges OFCCP with EEOC, and Offers Paid Family Leave

Wed, 24 May 2017 00:00:00 GMT

The Trump Administration’s FY2018 budget proposes reducing the Labor Department’s appropriation by $2.4 billion for FY2018 from $12.1 billion to $9.7 billion-a 20 percent reduction with cuts coming mostly from workforce training programs.

Budget would merge OFCCP into EEOC

After months of speculation, the FY2018 budget confirms that the Administration proposes to merge OFCCP into the EEOC by the end of FY2018:

The 2018 Budget proposes merging OFCCP into the Equal Employment Opportunity Commission (EEOC), creating one agency to combat employment discrimination. OFCCP and EEOC will work collaboratively to coordinate this transition to the EEOC by the end of FY 2018. This builds on the existing tradition of operational coordination between the two agencies. The transition of OFCCP and integration of these two agencies will reduce operational redundancies, promote efficiencies, improve services to citizens, and strengthen civil rights enforcement.

In addition, the budget would reduce OFCCP’s budget by 16 percent–from $105 million in FY2017 to $88 million in FY2018.

Budget’s impact on other enforcement agencies

As to other enforcement agencies, the Equal Employment Opportunity Commission (EEOC) would receive $363.8 million FY2018 under the budget, representing a modest reduction of $700,000 from FY2017. Although the target of strong criticism, the National Labor Relations Board (NLRB) received a budget cut of only about 6 percent from $274 million to $258 million. The Wage and Hour Division’s spending will remain basically unchanged, which may indicate an intent to shelve the still-pending overtime rules.

Budget proposes paid family leave

Finally, the proposed FY2018 budget provides over $18 billion in additional funding to the Labor Department’s unemployment insurance program for paid parental leave. The proposal envisions a federal-and-state paid parental leave program beginning in 2020. The program would provide six weeks of paid leave to new birth and adoptive parents. Like the Administration’s Medicaid proposal, states would be given significant discretion in determining the final structure of the leave program.

Takeaways

The budget is the most tangible expression of the effort to reduce the size and reach of the federal government. However, Congressional leaders’ response to President Trump’s budget is that it is “dead on arrival.” It is also important to note that both employer groups and civil rights advocates have raised serious objections the budget’s merger of OFCCP and EEOC. In fact, The Institute for Workplace Equality (The Institute), of which David Fortney is a co-chair, submitted a letter to Secretary Acosta and OMB Director Mulvaney strongly objecting to the proposal. If you have additional questions about the impact of President Trump’s budget, please contact your FortneyScott counsel.

Trump Issues Executive Order to Strengthen Cybersecurity and Critical Infrastructure

Wed, 17 May 2017 00:00:00 GMT

On May 11, 2017, President Trump issued an Executive Order on “Strengthening the Cybersecurity of Federal Networks and Critical Infrastructure” (“EO”). The EO makes Executive Branch agency heads responsible for ensuring the cybersecurity of their systems and information. It also directs these agencies to report, plan and budget for improvements to the cybersecurity of their Federal systems in order to adequately protect “the executive branch enterprise.” The EO calls for agencies to apply the National Institute of Standards and Technology (“NIST”) Framework for Improving Critical Infrastructure Cybersecurity (the “Framework”) in developing reports that ultimately will be used to determine an Executive Branch cybersecurity plan. The Framework to be used by these agencies is the same one that has been in place since 2014 as voluntary guidance to businesses on the development of a risk-based approach for addressing and managing cybersecurity risks. Notably, the EO calls for the Executive Branch’s development and transition to a “modern, secure, and more resilient executive branch IT [Information Technology] architecture,” with a preference to procure shared IT services, including email, cloud and cybersecurity services.

The EO also calls for agencies to support the cybersecurity of U.S. critical infrastructure, which is defined to include critical physical and information infrastructures and networks in telecommunications, energy, financial services, water, and transportation sectors. The EO also seeks to identify the cybersecurity risks facing the Department of Defense (“DoD”) and the defense industry base, including its supply chain, and to address the threats posed by botnets and other automated, distributed cyber attacks.

Takeaways:

Cybersecurity remains a critical concern for this administration. We should expect that additional guidance and likely increased requirements will be issued to implement better and more comprehensive cybersecurity in government and with regard to those involved in national security, or other activities critical to the accomplishment of the government’s missions.

Given the President’s expressed intent to update Executive Branch IT systems and services, it is likely that an Agency’s plans to address cybersecurity needs will be factored into that Agency’s, and ultimately, the President’s Executive Branch-wide, strategic, operational and budgetary planning processes moving forward for FY 18 and beyond.

As a government contractor, you should be checking your systems to ensure compliance with the cybersecurity requirements in your current contracts and subcontracts, and moving forward to ensure your competitive status in future procurements.

Cybersecurity is likely to create opportunities for those with the best cybersecurity products, services and capabilities in the coming months and years.

If you have questions about the Executive Order or the requirements of current cybersecurity provisions, contact Susan Warshaw Ebner, or your FortneyScott counsel.

White House Issues Executive Order on Religious Freedom; Silent on Federal Contractors

Sat, 06 May 2017 00:00:00 GMT

Pres. Trump acted today to begin fulfilling his campaign promises to his evangelical and other religious group supporters. An Executive Order (EO) entitled Promoting Free Speech and Religious Liber ty states the Administrations positions on a number of issues of significant importance to the Presidents religious base; however, the omission of any limitations to LGBT rights and same-sex marriage may disappoint those same voters.

Specifically, the EO instructs government agencies, particularly the IRS, to limit regulatory oversight of political speech from churches and other tax-exempt religious institutions, to the extent legally possible. The Johnson Amendment, now on the books, permits the IRS to suspend tax-exempt status from religious institutions if they engage in overt political activity. In fact, there has been virtually no enforcement of this provision.

The remainder of the EO largely offers support, not action. For example, the EO supports but takes no affirmative steps to effectuate the Supreme Court ruling on contraception in health insurance for religious institutions. Earlier, the High Court ordered the Justice Department to find a resolution in its dispute with religious institutions opposed to complying with the Obamacare provision requiring contraceptive care as part of employer-provided health insurance.

For many, what is not included in the EO is of equal significance. Despite reports to the contrary, there is no effort to limit or rescind the Executive Order requiring non-discrimination of LGBT applicants and employees by government contractors. Also, there is no reference of any kind to same-sex marriage. However, what might raise some concerns is Section 4 which directs the Attorney General to issue guidance interpreting religious identity protection in Federal law.

NDIA Turns to FortneyScott for Compliance Guide for DoD New Cyber Security Rule

Tue, 28 Mar 2017 00:00:00 GMT

National Defense Industrial Association, a leader in defense and national security, has published an article co-authored by FortneyScott’s Susan Ebner, offering compliance guidance in response to the recently issued Department of Defense (DoD) cyber security rule . The rule requires contractors to comply with 110 specific network security requirements for safeguarding covered defense information (CDI) that is processed, stored, or transmitted through “covered contractor information systems.” Contractors that would provide “operationally critical support” are also required to comply with the rule. If you are a covered contractor, you can obtain an extension to December 31, 2017 for your compliance with the rule’s requirements. Ebner notes “this extension offers contractors a unique opportunity to assess their systems and become compliant so that they can continue to respond to solicitations.” In the article, Ebner outlines plans to assess CDI systems and provides guidelines for compliance.

Takeaways:

To obtain that extension, however, you must notify the DoD Chief Information Officer (“CIO”) within 30 days of contract award of the requirements that you have not yet implemented.

Solicitations and contracts for the acquisition of commercial off-the-shelf supplies are exempt from compliance with this rule. Different versions of this DoD cyber clause, and still other Federal Acquisition Regulation (“FAR”) and agency cyber clauses, may be in your contract and may establish different immediate and longer term requirements.

Develop a plan to determine which clauses are in your contract.

Develop a plan for meeting immediate and longer term compliance, review and reporting obligations.

If you are subject to the newly issued DoD clause, act promptly in order to obtain an extension to the time for compliance with its security requirements.

Establish your cybersecurity response team so you can take the right steps to meet your security compliance and reporting obligations.

Contact Susan Ebner or your FortneyScott attorney if you have questions about which clauses apply to you and what you are required to do.

President Trump Rescinds ?Blacklisting? Executive Order and Regulations

Tue, 28 Mar 2017 00:00:00 GMT

On March 27, 2017, the implementing regulations issued pursuant to President Obama’s Executive Order (EO) 13673, Fair Pay and Safe Workplaces-commonly referred to as “Blacklisting”-were rescinded by President Trump signing a Congressional joint resolution of disapproval (H.J. Res. 37) under the Congressional Review Act (CRA). In addition, President Trump signed a new Executive Order revoking EO 13673 in its entirety. The new EO directs agencies to “consider promptly rescinding any orders, rules, regulations, guidance, guidelines, or policies implementing or enforcing” EO 13673, which would include the U.S. Department of Labor’s companion guidance to the now-rescinded Blacklisting regulations.

Trump’s actions are the coup de grace to the embattled Blacklisting executive order and implementing regulations which, most notably, would have required contractors and subcontractors to self-disclose a wide range of alleged violations of labor and employment laws when seeking to do business with the federal government. Although a Texas federal court issued a nationwide injunction last fall staying EO 13673’s requirements for self-reporting of violations and restricting pre-dispute arbitration agreements, contractors still were required to comply with the rule’s “paycheck transparency” provisions that become effective on January 1, 2017.

Importantly, in addition to the rescission of all the current Blacklisting regulations, the CRA nullification bars agencies in the future from reissuing rules in “substantially the same form” and promulgating new rules that are “substantially the same,” absent specific authorization by a law.

Contact your FortneyScott attorney for additional information about the impact of these changes on your company’s federal contracts and related compliance matters.

Acosta Makes An Impressive Showing at Senate Confirmation Hearing

Wed, 22 Mar 2017 00:00:00 GMT

In a deft and professional performance, Secretary of Labor designee Alex Acosta indicated that if confirmed, he would give thoughtful review to the various challenges facing Department of Labor (DOL). Specifically, Acosta indicated that he was open to examining, the overtime regulation, Wage and Hour’s view on joint employer, job training, and a return to DOL opinion letters.

Acosta faced questions from both sides of the aisle on his position regarding the enjoined overtime regulations. He expressed his wish to examine both the exemption threshold and duties test, acknowledging that the current threshold is behind the times, but expressed concern with the extreme impact of the enjoined regulations.

Acosta also voiced strong support for the traditional definition of the joint-employer relationship, contrary to the position taken by the Obama Administration. In response to bi-partisan concerns about the future of job training and Job Corps. programs, Acosta voiced intent to evaluate job-training programs with a specific emphasis on fostering successful programs at the local level. Acosta clearly stated support for the Department to return to issuing Opinion Letters, as opposed to the often amorphous Interpretations issued by Obama’s DOL. When asked about the way OFCCP has been using statistics in compliance evaluations, Acosta simply recognized the validity of disparate impact analysis in discrimination cases.

Generally, with respect to the reorganization of the Department and the reexamination of regulations, as instructed by recent Executive Orders, Acosta made clear that he would be responsive to the directions from his boss, the President.

Pres. Trump Issues Executive Order to Reorganize the Executive Branch

Tue, 14 Mar 2017 00:00:00 GMT

The Administrative State has received a frontal assault. President Trump signed an Executive Order that is likely to have far reaching consequences in shaping the structure and programs of executive agencies during the Trump Administration and beyond. Indeed, the new EO may be the harbinger of the most significant restructuring of the federal agencies since President Franklin Roosevelt, which then saw the greatest expansion of the federal bureaucracy. The Trump administration may implement the most significant devolution of agencies in generations which will fundamentally change how the federal government operates.

President Trump signed a new EO dated March 13, 2017, entitled a Comprehensive Plan for Reorganizing the Executive Branch . The new EO directs the Director of Office of Management and Budget (OMB) to follow three steps to reorganize the executive branch. First, OMB is to collect from each federal agency within 180 days a proposed plan to reorganize the executive branch agency, and to improve effectiveness and accountability.

Additionally, public comments are to be submitted pursuant to a notice published in the Federal Register by the Director of the OMB inviting the public to suggest improvements in the organization and functioning of the executive branch. Finally, within 180 days after the comment period, OMB then is to ?submit to the President a proposed plan to reorganize the executive branch in order to improve the efficiency, effectiveness, and accountability of agencies. In addition to addressing the elimination of unnecessary agencies, components of agencies, and programs and to merge functions, the plan also is to include recommendations for any legislation or administrative measures necessary to achieve the proposed reorganization. Presidential action and necessary legislation then would follow.

Next Steps: Employers, and in particular Federal contractors, will need to carefully monitor these developments. Specifically, the following steps should be taken:

When the comment period is opened, the comments should be submitted and there should be full engagement by the business community stakeholders. Recognizing that the federal budget for many agencies and programs may be cut, employers should develop recommendations on how critical missions can be completed more efficiently and effectively. Specific focus should be on the agencies affecting workplace obligations, including the key DOL agencies — Wage and Hour, OSHA and OFCCP, as well as the EEOC and NLRB. Additionally, federal procurement processes also may be addressed, including changes in agencies/programs, oversight, and funding. Additional changes may result in the governments use of consolidated data to negotiate better deals for the government.

Contact your FortneyScott attorney or info@fortneyscott.com for additional information about these developments and the steps that FotneyScott is taking to address these significant matters.

DoD Issues Draft Guidebook for Acquiring Commercial Items

Mon, 13 Mar 2017 00:00:00 GMT

“Commercial item” purchases are often favored both by the Government and by contractors, as they are subject to fewer regulations and may be procured more quickly, using streamlined Federal Acquisition Regulation (“FAR”) Part 12 procedures. Recently enacted laws encourage this strong preference for the acquisition of commercial supplies and services. On February 24, 2017, the Department of Defense (“DoD”) issued a draft Guidebook for Acquiring Commercial Items (“Guidebook”).

The draft Guidebook is comprised of two parts – Part A : Commercial Item Determination and Part B: Pricing Commercial Items. Part A of the Guidebook proposes processes and decision trees, and some examples of their applications, for DoD personnel to use in assessing whether a product or service qualifies as a “commercial item” under FAR 2.101 “Commercial item”. Part B: of the Guidebook proposes processes and decision trees for conducting a price analysis to determine the appropriateness of a contractor’s proposed commercial item pricing.

Takeaways:

The Guidebook proposes a road map for the DoD to use to determine whether a particular product or service will qualify as a “commercial item.”
Once DoD issues a Commercial Item Determination (“CID”), it can be used in future DoD procurements.
The Guidebook, once issued, should be of significant benefit to contractors, too. It can be used to guide contractors with regard to what they need to provide to DoD to demonstrate that their product or service, or the product or service of their subcontractor(s), qualifies as a “commercial item.”

The period for submission of comments on the Guidebook has been extended; comments are due on or before May 1, 2017.

If you have questions about this draft Guidebook, or are interested in learning more about whether a particular product or service might qualify as a “commercial item” subject to more streamlined acquisition requirements and processes, please contact your Fortney & Scott attorney, or Susan Warshaw Ebner.

CSALs were Mailed on February 17, 2017/Revised Pay Transparency Notice

Wed, 22 Feb 2017 00:00:00 GMT

OFCCP has confirmed that as of February 17, 2017 that it has mailed 800 Corporate Scheduling Announcement Letters (CSALs) in its first release of the FY2017 Scheduling List. These are the first CSALs issued by OFCCP in approximately two years. In the revised FAQs for CSALs, OFCCP stated that these CSALs are being sent directly to establishments notify them that they will be scheduled for a compliance evaluation during the upcoming scheduling cycle. According to the FAQs on the Federal Contractor Selection System (FCSS), the 800 establishments cover 375 distinct companies in 29 industries. The FY2017 Scheduling List also includes 30 Corporate Management Compliance Evaluations (CMCEs). In addition, OFCCP made a small change to the notice that federal contractors must post regarding the Pay Transparency regulations, which became effective on January 11, 2017 and apply to all covered contracts entered into or modified as of that date. OFCCP has indicated that federal contractors should implement the revised Notice as soon as practicable. The revised notice can be found here.

Your FortneyScott attorney can provide you with advice on how to respond to these developments, or contact us by email at info@fortneyscott.com for additional information.

Ninth Circuit Court of Appeals Rules Against Reinstating the Travel Ban

Thu, 09 Feb 2017 00:00:00 GMT

In a unanimous ruling, a panel of three judges from the Ninth U.S. Circuit Court of Appeals have upheld the suspension of the immigration travel ban. FortneyScott’s attorneys will continue to monitor this breaking development and will keep you updated.

FortneyScott Amici Curiae Brief Filed in 9th Circuit in State of Washington v. Trump et al.

Wed, 08 Feb 2017 00:00:00 GMT

Amici Curiae Brief filed by FortneyScott and Employment Law Alliance law firms in State of Washington v. Trump et al., No. 17-35105 (9th Cir, filed February 7, 2017).

OMB Renews Section 503 Disability Self-ID Form

Wed, 01 Feb 2017 00:00:00 GMT

OMB renewed the mandatory language for the Section 503 Voluntary Self-Identification of Disability form for 3 years. The new form expires on January 31, 2020.

Contractors need to replace hard copy forms with the new one immediately. Additionally, electronic versions of the Voluntary Self-Identification of Disability may either be:

As a reminder, contractors may create an electronically fillable version of the form used to invite self-identification provided that form meets certain requirements. The e-form must:

It is our understanding that OFCCP will give a grace period of up to 10 days as long as contractors make good faith efforts to comply.

White House Issues Memorandum Freezing New and Pending Regulations

Mon, 23 Jan 2017 00:00:00 GMT

On 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.

Federal Contractors Must Now Provide Privacy Training

Mon, 23 Jan 2017 00:00:00 GMT

At the last minute, the Federal Acquisition Regulations were amended by the Obama Administration requiring federal contractors to provide employees with “privacy training.” The new rule, issued on January 20, 2017, was effective January 19, 2017!

Under the privacy rule, contractors must provide a program to train employees to protect personally identifiable information, both their own and that to which they have access. Contractors must:

Identify all personally identifiable information (PII) and those who have access or handle it
Must implement a mandated multi-step training program regarding access, use, and maintenance of PII
Ban access to PII to all who have not completed the mandated training.

All contracts with PII, including those for commercial items, are covered and the requirement to provide privacy training flows-down to all subcontractors including those for commercial items when they involve handling and safeguarding of PII.

OFCCP Files Two New Systemic Pay Discrimination Lawsuits

Wed, 18 Jan 2017 00:00:00 GMT

In a last blast by the Obama Administration during its final hours, the U.S. Department of Labors 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

Wed, 11 Jan 2017 00:00:00 GMT

While 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.

Executive 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.

Governor 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.

We 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 FortneyScott.

EEOC Issues Last Minute Omnibus Guidance Tracking Harassment Task Forces Recommendations

Tue, 10 Jan 2017 00:00:00 GMT

With 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 transition.

EEOC 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).

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

EEOC Issues Final Rule on Affirmative Action re Individuals with Disabilities

Fri, 30 Dec 2016 00:00:00 GMT

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.

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

Fri, 30 Dec 2016 00:00:00 GMT

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:

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.
Establishing secure firewalls.
Backing up critical information.
Regularly scanning your network and systems for known vulnerabilities; updating your scanning as new vulnerabilities are identified.
Using only approved programs on your networks and systems.
Establishing a cyber security team, policies and reporting chain for expeditious reporting and response to actual or suspected cyber incidents.
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.

Federal Contractors Stay Alert!

Tue, 20 Dec 2016 00:00:00 GMT

Paid Leave

On and after January 1, 2017, new solicitations and resulting covered contracts (mainly those under the Service Contract Act and Davis-Bacon Act) can include a clause obligating contractors to provide 56 hours of paid sick leave to employees working on covered contracts. Leave will be accrued at the rate of 1 hour for every 30 hours worked. The new paid leave requirements do not apply to pre-existing contracts that are in effect in 2017. The required leave must be in addition to vacation time provided under a Wage Determination.

As the Paid Leave rule is the product of an Executive Order (E.O.13706), it can be rescinded by President Trump, should he decide to do so. However, there is ambiguity about his Administration’s plans for paid leave, in general, and whether this form of Paid Leave is part of those plans.

Pay Transparency

Although the most onerous elements of the “blacklisting” regulations were enjoined, the new paycheck transparency requirements under the “Fair Pay and Safe Workplaces” Executive Order (E.O. 13673) were NOT enjoined and will be effective beginning January 1, 2017. The requirements will apply to all new federal procurement contracts and subcontracts of $500,000 or more. Covered contractors must inform employees of hours worked, overtime hours (for non-exempt employees) by workweek and totaled for pay period, pay, deductions, and must identify exempt employees and independent contractors. Contractors already complying with state laws with comparable disclosure requirements (such as California and D.C.), are considered in compliance with the new federal pay transparency standard.

“Fair Pay and Safe Workplaces” Executive Order is also subject to rescission and is likely to be acted on. However, the injunction may delay executive action.

If you have any questions, please contact Burt Fishman ( bjfishman@fortneyscott.com ) or your FortneyScott lawyer. We will be keeping you apprised of any new developments.

Supreme Court Has the Opportunity to Narrow Affirmative Action

Fri, 09 Dec 2016 00:00:00 GMT

The Supreme Court heard contentious arguments this morning in the case of Fisher v. The University of Texas at Austin, Case No. 14-981 (Dec. 9, 2015) (“Fisher II”). Before an eight-Justice panel (due to a recusal by Justice Elena Kagan), the parties addressed whether the use of racial preferences in undergraduate admissions decisions was valid under the Court's decisions interpreting the Equal Protection Clause of the Fourteenth Amendment. During the 90-minute hearing, the Court and the counsel engaged in a heated exchange over four possible outcomes: (1) whether the case should be affirmed; (2) whether it should be remanded for further review; (3) whether any affirmative action admissions program is constitutional; or (4) whether this particular program is constitutional. As U.S. Solicitor General Donald B. Verrilli, Jr. noted, this ruling may have significant implications outside higher education, especially for affirmative action in hiring by private employers.

This is the second time the Supreme Court has heard oral argument in this case. In Fisher I, The Court analyzed whether the scope and application of the University's affirmation action admission policy were sufficiently, narrowly tailored to avoid violating the Fourteenth Amendments protections. At that time, the Court remanded the case, ruling that the Fifth Circuit failed to adequately apply the strict scrutiny test in its decision endorsing the University's admissions policy.

Todays oral argument in Fisher II addressed the issue of whether race could be used as a factor in a holistic review of an applicants qualifications for admissions, as part of an effort to achieve racial diversity. Several Justices voiced hostile opposition to the University's position, arguing that race should never be factor in the admissions process because it would be difficult to determine when race becomes the deciding factor. On the other hand, other Justices suggested that to meet the standard articulated by the Court in Grutter v. Bollinger, requiring a showing of a compelling need for diversity, the University must use race as a factor. Although concern was continually raised throughout the hearing that there was insufficient evidence to reach a decision, several Justices indicated that a remand was unlikely when the University could not point to any additional evidence that could impact the current facts.

Neither of the oral arguments presented a clearly dominant position; thus, we must wait and see how affirmative action admissions policies will fare, post-Fisher II. The final opinion is expected at the end of the Courts term in late June 2016. If you have questions regarding this case or would like a copy of the transcript, please contact your FortneyScott attorney.

Trump Will Name Andy Puzder as Secretary of Labor

Thu, 08 Dec 2016 00:00:00 GMT

It was announced on December 8 that President-elect, Donald Trump, will name Andy Puzder as the new Secretary of Labor. Andy Puzder is currently the CEO of CKE Restaurants, which is the parent company to burger chains Carl’s, Jr. and Hardee’s.

Puzder has been a long-standing vocal opponent of many of President Obama’s employment initiatives including the controversial overtime rule. He has also testified against the NLRB’s joint employer standard and he has voiced strong opposition to an increase in the minimum wage to $15. He is a lawyer and co-author of a book entitled, Job Creation: How It Really Works and Why Government Doesn’t Understand It .

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

Wed, 07 Dec 2016 12:00:00 GMT

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.

BREAKING NEWS: DOL Appeals Ruling of Nationwide Injunction on Overtime Regs

Thu, 01 Dec 2016 00:00:00 GMT

The U.S. Department of Labor filed a Notice of Appeal in the 5th Circuit on December 1, 2016. The DOL is appealing the federal judge Amos Mazzant’s ruling in State of Nevada v. U.S. Department of Labor (E.D. Texas) granting a nationwide injunction enjoining the U.S. Department of Labor’s (DOL’s) new overtime regulations scheduled to take effect on December 1, 2016.

Proposed FAR Rule to Permit and Encourage Effective Communication Between Government and Industry

Wed, 30 Nov 2016 00:00:00 GMT

On November 29, 2016, the Federal Acquisition Regulation (FAR) Council issued a proposed rule to carry out the requirements of Section 887 of the National Defense Authorization Act and make clear that “agency acquisition personnel are permitted and encouraged to engage in responsible and constructive exchanges with industry, so long as those exchanges are consistent with existing law and regulation and do not promote an unfair competitive advantage to particular firms.” 81 Fed. Reg. 85914.

In issuing the proposed rule, the FAR Council is seeking comments on the parameters for such exchanges – which phases of the federal acquisition process would benefit from more exchanges, which currently pose barriers to effective communication, and whether greater discussions with offerors would benefit competition in high dollar acquisitions. As members of the public you can submit comments on this proposed rule and the questions posed by the FAR Council; comments are due on or before January 30, 2017.

TAKEAWAYS:

While the proposed rule encourages exchanges between government and industry, there are statutory and regulatory provisions that limit when and under what circumstances you can engage in communications with government personnel about government contracting matters.
There also are rules that prohibit you, during the conduct of a Federal procurement, from seeking, using or disclosing certain information that would be considered procurement sensitive.
It is important to know these rules before you attempt to communicate with the Government and other Industry members during the conduct of a Federal procurement.

If you have questions about the Federal government contracting rules on the communications and information exchanges, including questions about how to properly raise concerns regarding a particular procurement, contact Susan Ebner or your FS counsel.

BREAKING NEWS: Nationwide Injunction Issued on OT Regs by Texas Judge

Tue, 22 Nov 2016 00:00:00 GMT

In Brief:

A Federal judge in Texas granted a nationwide injunction blocking the Department of Labor’s new overtime rule from going into effect as scheduled on December 1, 2016

The drastic increase to the salary-level threshold unlawfully circumvented Congressional intent and created a “de factor salary-only test” for overtime eligibility

Judge Mazzant’s decision completes a trifecta of rulings in Texas federal courts in the past 30 days blocking the implementation of controversial labor rules issued by the Obama administration (earlier rulings enjoined the Persuader and Fair Pay and Safe Workplaces (“blacklisting”) regulations)

BREAKING NEWS: Persuader Rules Permanently Blocked by Texas Judge

Wed, 16 Nov 2016 00:00:00 GMT

As mentioned in a previous posting , a preliminary injunction was issued for the implementation of the Persuader rules by a Texas federal judge in June. On Wednesday, November 16, this same judge issued an order permanently blocking the U.S. Department of Labor from enforcing the new Persuader rules.

The Persuader rules would have required 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 would have reversed 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.

Judge Grants Preliminary Injunction Blocking Implementation of Fair Pay and Safe Workplaces Rule

Tue, 25 Oct 2016 00:00:00 GMT

On October 24, 2016, Judge Marcia A. Crone issued a nationwide preliminary injunction in Associated Builders and Contractors of Southeast Texas v. Rung (E.D. Texas, No 1:16-CV-425) blocking the implementation of the Fair Pay and Safe Workplaces final rule. Specifically, the injunction blocks the implementation of the rule’s requirements that contractors self-disclose labor law “violations” and that they eliminate provisions in their arbitration agreements restricting lawsuits for Title VII or sexual assault allegations. The injunction does not, however, affect the Executive Order’s “paycheck transparency” requirements, which will take effect on January 1, 2017.

For federal contractors, the injunction was granted in the nick of time-just one day before the self-disclosure and arbitration requirements were scheduled to take effect.

The preliminary injunction will last until a final decision is reached in the case, although the government will likely ask the judge to reconsider her decision and ultimately appeal to the federal Court of Appeals for the Fifth Circuit and possibly the U.S. Supreme Court. If the injunction is upheld, it remains to be seen whether the government will attempt to revise and significantly reduce the rule to address the legal and constitutional shortcomings identified in the court’s ruling.

Finding that the plaintiff contractors demonstrated both a “substantial likelihood of success on the merits of their case” and risk of irreparable injury, the court heaped derision on the Executive Order, final rule, and DOL guidance as having:

Imposed “complex, cumbersome, and costly requirements . . . which hamper efficiency without quantifiable benefits;”
Violated contractors’ First Amendment rights by forcing them to “publicly condemn” themselves for allegations that may ultimately have no merit;
Violated contractors’ due process rights by forcing them to report and defend against non-final agency allegations without a hearing; and
Violated the Federal Arbitration Act.

The court repudiated the new class of reportable “administrative merits determinations” as “nothing more than allegations of fault asserted by agency employees and [which] do not constitute final agency findings of any violation at all.”

The court’s injunction is the latest by a Texas federal district court barring the implementation of a controversial labor regulation. In June, the Northern District of Texas blocked the DOL’s “persuader rule.” A challenge to the DOL’s new overtime regulations is currently pending in the Eastern District of Texas.

If you have any further questions, please contact your FortneyScott attorney, or e-mail us at info@fortneyscott.com

OFCCP Director Patricia Shiu to Leave Agency

Thu, 13 Oct 2016 00:00:00 GMT

Patricia A. Shiu, Director of the U.S. Department of Labors Office of Federal Contract Compliance Programs, will be leaving the agency, according to information announced today during a public meeting held by the U.S. Equal Employment Opportunity Commission. Director Shiu was appointed as Director of OFCCP in 2009 by the Obama Administration.

The announcement of Director Shius departure comes shortly after the EEOC announced that David Lopez, general counsel of the EEOC since 2010, would be leaving the agency in early December. Mr. Lopez leaves as the longest-serving general counsel in the history of the EEOC.

EEOC Announces Approval of Revised EEO-1

Fri, 30 Sep 2016 00:00:00 GMT

On September 29, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) announced approval of its revised Employer Information or EEO-1 report , which employers must file with the EEOC annually to report demographic information about their workforces. On March 31, 2018, private employers, including federal contractors, with 100 or more employees must include summary compensation and hours-worked data in their annual EEO-1 report. Specifically, covered employers will be required to report employees’W-2 earnings and hours-worked data, broken down by gender, race, ethnicity, and by 12 pay bands in each of the 10 EEO job categories.

The new reporting requirements do not affect employers’ 2016 EEO-1 report due on September 30, 2016. However, beginning in 2017, the annual filing deadline will be pushed back from September 30 of the reporting year, to March 31 of the following year. Accordingly, the first time employers’ must file the EEO-1 reports containing the new data is by March 31, 2018.

To accommodate the EEO-1’s new filing schedule, employers’ annual EEO-1 “workforce snapshot” period (the time period during which employers survey their employees) will shift from the third quarter to the final quarter of the calendar year, beginning with the EEO-1 report due on March 31, 2018.

Since last February when the EEOC published its initial proposal to collect this additional data, the employer community has repeatedly voiced strong objections and concerns regarding the use of W-2 data; the ability to accurately track employees’ hours-worked; the utility of the information being collected; the increased burden and costs that were not accurately considered in the EEOC’s proposal; and insufficient safeguards to protect the privacy of the data. Unfortunately, these genuine concerns largely have gone unheeded. Aside from changing the EEO-1 reporting schedule so that employers will not have to issue an additional W-2, in the final EEO-1 the EEOC made no other substantive changes from the agency’s initial proposal.

Although the EEOC has posted an assurance on its website that the agency “maintains robust cybersecurity and privacy programs,” and will require employers to choose a new password to access their next report, these warning will do little to allay employer concerns regarding the security of their data.

For federal contractors, it is important to note that EEOC shares EEO-1 data with the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP). The EEOC is prohibited by Title VII from releasing any individual EEO-1 data, with EEOC employees subject to criminal penalties if they are involved in such a release. However, the EEO-1 Report data shared with OFCCP has more limited protections under the exemptions to the Freedom of Information Act.

Next Steps

The EEOC will be offering webinars on October 20 and 26 and providing technical assistance through email and the agency’s hotline to help businesses comply with the new requirements.

Additionally, employers should consider the following steps in 2017 as they prepare for the new EEO-1 reporting requirements:

Assemble a team with the necessary subject matter expertise that typically includes legal, HR, compensation, timekeeping, payroll, and other affected areas. The assessment team should evaluate the company’s current capabilities promptly, so that there is sufficient time to undertake necessary updates and changes to systems and reporting capabilities.
Review the payroll and HRIS systems to determine where the earnings and hours-worked data are maintained, and whether the new, expanded data requirements can be met from the current systems. Typically, modifications may be required in order to be able to collect hours worked data.
If the company uses a separate system for payroll, then consult with the company’s IT representatives to complete any necessary updates of their HRIS systems to accommodate and integrate the additional data.
Employers who rely upon outside vendors to generate W-2 forms, and do not maintain the information internally (specifically the individual employee earnings reported in Box 1) will need to review their contracts and confer with their vendor to determine the most efficient way to import the W-2 data to the system(s) that are used for preparing the new EEO-1 report.
Determine whether the company will use the permitted default entries of 40 hours (full time) and 20 hours (part-time) for exempt employees or will provide exempt employees’ actual hours, either by tracking hours worked or determining whether the employees’ work hours are available from other records, e.g., log-ins, federal contracting billing reports, etc..
Employers should ensure that all reasonable steps are taken to protect the confidentiality of their data once it is in the agencies hands.

Please contact either the FortneyScott attorney with whom you work or Leslie Silverman, Esquire from FortneyScott for additional information or advice on complying with the new EEO-1 reporting obligations.

Maryland's Aggressive New Pay Law Goes Into Effect on October 1st: 5 Key Changes

Mon, 26 Sep 2016 00:00:00 GMT

On May 19, 2016, Maryland Governor Larry Hogan signed The Equal Pay for Equal Work Act of 2016, bolstering the state’s protections against pay discrimination. Maryland will officially join the ranks of New York and California when this aggressive new pay law goes into effect on October 1, 2016.We have identified five key aspects of the new law that employers with locations in Maryland should bear in mind:

Maryland has prohibited pay differentials based upon an employee’s gender identity.
It is no longer just about compensation. In addition to protecting against discrimination in pay, the new law forbids employers from providing “less favorable employment opportunities” based on employee’s sex or gender identity. This precludes employers from : assigning or directing an employee into a less favorable career track or position, if offered; failing to provide information about promotions or advancement in the full range of career tracks offered by employer; and limiting or depriving employee of employment opportunities which would otherwise be available to employee but for employee’s sex or gender identity.
Employees do not have to work in same establishment to be comparators. Maryland has expanded the pool of comparators beyond the “establishment” where an employee works to include employees who “provide work of a comparable character or work on the same operation, in the same business or of the same type” for the employer at workplaces in the same county of the state.
Maryland has instituted strong pay transparency and anti-retaliation provisions aimed at shielding employee discussions around pay. Employers may not prevent employees from (i) inquiring about, discussing, or disclosing wages to other employees; (ii) questioning employers about their wages; and (iii) aiding or encouraging other employees to exercise their rights under the new law. Employers are prohibited from taking adverse action against employees for engaging in any of the aforementioned activities; nor may employers enter into agreements, which require employees to waive their rights to discuss or disclose wages.
Employers must institute written policies in order to take advantage of the law’s affirmative defense. Under the law, employers may issue written policies prohibiting certain employees from discussing or discovering the wages of another employee without that employee’s permission (e.g., supervisors and those whose jobs directly reveals such information, such as payroll and HR, where the wage information was learned in the employee’s performance of his/her job duties came from the employee’s performance of his/her job duties). Employers may also establish reasonable workday limitations of the time, place and manner for employee inquiries and discussions about pay, provided that the limitations are in writing and consistent with standards, yet to be issued by Maryland Equal Pay Commission, and with state and federal laws, including the National Labor Relations Act. These written policies must be distributed to employees in order for an employer to utilize an employee’s failure to comply with these restrictions as an affirmative defense.

In addition to New York, California, and now Maryland equal pay laws, employers should also be aware of a sweeping new pay equity legislation, which was recently enacted in Massachusetts. When that law goes into effect in July 2018, Massachusetts will become the first state to restrict employers from requiring that applicants disclose prior salary history.

Next Steps

Given these tough new state laws, and the focus on compensation collection and enforcement efforts by the Equal Employment Opportunity Commission and the Office of Contract Compliance Programs, employers should consider taking the following steps to ensure that their compensation practices and pay differences are lawful and defensible.

Conduct a comprehensive compensation compliance audit that includes: identifying the factors that influence compensation, conducting a statistical analysis of similarly situated employees, and thoroughly review their compensation policies, practices and procedures. The assessment should be conducted under the guidance of experienced counsel in order to protect audit results under the attorney-client privilege;

Train all personnel involved in compensation decisions (hiring and raises) on the new legal requirements and standards; and

Ensure that all supervisors and HR understand the new pay transparency and anti-retaliation protections.

Please contact your FortneyScott attorney if you have specific questions about the new Maryland equal pay law, or if we can assist you with complying with the new equal pay laws and regulations.

GAO Issues Long-awaited Report on OFCCP

Thu, 22 Sep 2016 00:00:00 GMT

The Government Accountability Office (GAO) issued its report on OFCCP entitled “Strengthening Oversight Could Improve Federal Contractor Nondiscrimination Compliance.” The GAO concluded that although most of the agency’s compliance evaluations ended in a finding of no violation, the OFCCP’s process for selecting contractors is not designed to focus on contractors most likely to be noncompliant.

As a result the GAO says the OFCCP should:

Change contractor selection process so contractors chosen based on their risk of noncompliance;
Develop mechanism to monitor contractors’ compliance with AAPs on regular basis;
Improve outreach and compliance efforts to improve contractors’ and employees’ understanding of AA and equal employment requirements;
Provide uniform and continuing training to OFCCP staff; and
Assess current contractor guidance for clarity.

When GAO provided a copy of the report and its recommendations to OFCCP, the DOL indicated agreement with the GAO’s recommendations and the agency agreed to “take additional steps to strengthen oversight and improve compliance with nondiscrimination requirements.”

For additional details, or if you would like to discuss how this report could impact your OFCCP compliance, please contact your FortneyScott attorney.

Update on Fair Pay and Safe Workplace Regulations Implementation

Wed, 21 Sep 2016 00:00:00 GMT

Since the initial FS Client Alert on the final Federal Acquisition Regulation (FAR) rule and the Department of Labor (DOL) guidance implementing the Executive Order on Fair Pay and Safe Workplaces (final rule), FS attorneys have learned some important information on how the final rule will be implemented.

Current implementation of the final rule is being phased in starting on October 25, 2016. At that point, the actual or prospective contractors or subcontractors (herein “Contractor”) proposing on new procurements of $50 million or more are required to make disclosures regarding fourteen identified Federal labor and employment laws, and state approved occupational safety and health plans. The Agency Labor Compliance Advisor (ALCA) receiving the disclosures is required to place this disclosure information into an “assessment case file” that will reside in the ALCA Hub being established. It is currently anticipated that the Contracting Officer (CO) will only be provided access to the ALCA’s recommendation and identified basis for that recommendation. The CO will not have access to the underlying disclosure information in the ALCA Hub.

The CO involved in the particular procurement will assess the ALCA recommendation to determine whether action is appropriate and, if so, what that action will be. While the disclosures will be publicly available, the Contractor may request protection from public disclosure of its explanatory or mitigating information. There is reason to believe that the underlying ALCA assessment made during a procurement may be considered predicational and exempt from public disclosure.

Starting on September 12, 2016, a Contractor can request a reassessment of its violations. The Contractor seeking the reassessment will disclose its violations and may also provide explanatory or mitigating information. The Contractor may request protection from public disclosure of its explanatory or mitigating information. However, what is not clear is whether the information submitted to DOL as part of the reassessment process can be accessed and used by enforcement agencies and ALCAs outside of the reassessment process.

In contrast to where disclosures are made and assessment decisions are rendered by the CO during the procurement, the reassessment decision will be made by DOL, or the enforcement agency. There is concern that the written decision may not be protected from public disclosure as it is not part of a predicational deliberative process in a specific procurement.

Although the prime contractor can rely on a subcontractor’s representations regarding its Labor Law violations in making its responsibility determination, the Government is encouraging the prime to refer the subcontractor to the appropriate enforcement agency if the prime believes there is a responsibility problem.

The DoD has appointed its own ALCA. That ALCA is appointing ALCA representatives for each DoD procurement activity. The ALCA representative will be responsible for collecting the disclosure information from Contractors, for entering it into the ALCA Hub and for using DOL guidance to perform the initial assessment of whether to recommend one of following possible dispositions:

No issue-Contractor has a satisfactory record of responsibility.
Issue-Action is required before proceeding with an award decision.
Issue-Contractor must commit to negotiation of LCA before the CO can proceed with an award.
Issue-Contractor must complete the LCA as a condition of an award.

Where the ALCA representative finds an issue, the matter is referred to the ALCA with the ALCA representative’s recommendations. The ALCA will review and forward his recommendation to the CO for final review and decision. Where the CO decides to dispose of the matter per item 4, the matter must be referred to the responsible agency Suspension Debarment Official for further consideration.

For Paycheck Transparency, Contractor systems will likely require updating to enable them to report on the required information.

A formal request to delay implementation of the final rule has been submitted to the Office of Federal Procurement Policy by the Council of Defense and Space Industry Associations (CODSIA) because of the limited time available to collect information and get systems in place that can comply with the requirements. [link to letter] Other questions about possible postponement of all or a portion of the rule have also been raised.

DOL has established a porta l for contractors to submit questions on FPSW implementation and it is working with the Defense Acquisition University to prepare web-based training for Federal officials on implementation of the FPSW.

The final rule is a convergence of Federal labor and employment laws and guidance and Federal government contracting rules. Understanding how these laws and regulations intersect and apply may not be crystal clear. If you have specific questions about whether you are covered by the new rule and its implementation requirements, contact your FortneyScott attorney.

Join us for the DOLs New Overtime Regulations: Countdown to Compliance Webinar

Fri, 09 Sep 2016 00:00:00 GMT

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 Labors 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.

Compensation May Be An Issue That Candidates on Both Sides of the Aisle Are Willing To Embrace

Mon, 25 Jul 2016 00:00:00 GMT

From his earliest days in office, President Barack Obama has made combatting compensation discrimination a top priority. As we are often reminded, The Lilly Ledbetter Fair Pay Act was the very first bill he signed into law. Not long thereafter, the White House created the National Equal Pay Enforcement Task Force, a cross agency task force aimed at finding ways to crack down on violations of equal pay laws. As this President’s term begins to wind down, we have seen the Equal Employment Opportunity (EEO) agencies take action. In June, the Office of Federal Contract Compliance (OFCCP) issued new Sex Discrimination Regulations. Earlier this month, the Equal Employment Opportunity Commission (EEOC) in coordination with OFCCP, published revised guidelines that will require employers to include employee compensation information in their annual EEO-1 reports. If the Office of Management and Budget approves, beginning in March 2018, employers with 100 employees or more must share employee pay data with the EEOC and the OFCCP annually.

If last week was any indication, employers, who may have been ignoring the issue under the guise that the increased federal focus on compensation is sure to dissipate in a Trump administration, are likely to be in for quite a surprise. At the Republican National Committee convention last week, the Trump campaign appeared ready to embrace equal pay. During Ivanka Trump’s address to the convention last Thursday, the GOP candidate’s daughter emphasized the need to focus on women’s compensation issues. Ivanka Trump said of her father, “as President … will change the labor laws that were put in place at a time when women weren’t a significant portion of the workplace” and “fight for equal pay for equal work.” Although Donald Trump did not address the issue in his lengthy acceptance speech, on a number of occasions the GOP Presidential candidate has indicated that he is studying it closely and suggested that the campaign may be introducing equal pay policy proposals in the not too distant future.

And it is not just the Republican Presidential candidate that is focusing on compensation. In a surprise to many, outside the formal political platform process, last week Congressman Luke Messer (IN), the Chair of the U.S. House of Representatives Republican Policy Committee announced that House Republicans have formed a Working Group on Women in the 21st Century Workforce . The Working Group, which will be chaired by Congresswoman Martha McSally (AZ). will focus on pay disparity and other barriers impacting women in the workforce.

FortneyScott will continue to monitor this issue and anticipate that fair pay issues will garner even greater attention at the Democratic Convention in Philadelphia this week. If you are interested in receiving future development at the national as well as the state level, please contact FortneyScott and we will include you in our email list.

DoD Seats Section 809 Panel to Advise on Streamlining and Improving Defense Acquisition Process

Fri, 22 Jul 2016 00:00:00 GMT

Pursuant to Section 809 of the National Defense Authorization Act for Fiscal Year 2016, the Department of Defense (“DoD”) has provisionally seated a Panel (“Section 809 Panel”) to review and make recommendations for streamlining and improving the DoD acquisition process and maintaining defense technology advantage. The Section 809 Panel seeks to address the overarching question of “How would we restructure our business models [DoD’s Business models] to enable a rate of innovation that would allow us to maintain and increase our technological dominance?” including:

(1) what significant changes could be made to make the process of doing business with DoD faster and more efficient?

(2) How does DoD change business models to include emerging technology and adopt new business approaches?

(3) What are the barriers to flexibility and innovation? (4) What key areas does industry see as most prohibitive to business–technologically and financially?

A portal is being established so the public can submit comments. The Panel is holding meetings to engage the contracting community in identifying and potentially addressing significant areas of concern. It also plans to establish task forces to analyze each of the identified areas and to develop recommendations for inclusion in a report to the Secretary of Defense. The Secretary then will provide his comments and the Panel report to Congressional committees.

The American Bar Association Public Contract Law Section (“ABA PCLS”) submitted comments in response to the questions raised by the Panel in these initial outreach efforts. Click here to view the comments as filed.

If you are interested in further information on this Panel, please contact Susan Ebner , Shareholder at FortneyScott.

GSA Issues Final Rule on Transactional Data Reporting and Proposed Rule on Access to Reported Data

Fri, 22 Jul 2016 00:00:00 GMT

Starting with a phase-in pilot program on July 1, 2016, the recently issued General Services Administration (“GSA”) final rule will require contractors to report a minimum of eleven elements of transactional data (including contract and order numbers, deliverable descriptions, manufacturer and part number, unit measure, quantity sold, and prices paid per unit for items and services, as well as total price (“TD”)) on orders issued under covered FSS, GWAC or IDIQ contract vehicles. The new TDR clause is intended to help the Federal government improve competition, lower prices and increase transparency. However, the new rule may mean increased risks and exposure for Federal contractors.

The new clause would apply to all new contracts under these FSS, GWAC and IDIQ contract vehicles, and by bilateral modifications to existing FSS contracts. The clause will be phased in, starting with a pilot program phase that will cover eight FSS areas (Schedule 70 General Purpose Information Technology Equipment, Software and Services [selected SINs]; Schedule 00CORP Professional Engineering Services; Schedule 03FAC Facilities Maintenance and Management; Schedule 51 V Hardware Superstore; Schedule 58 I Professional Audio/Video, Telemetry/Tracking, Recording/Reproducing and Signal Data Solutions; Schedule 72 Furnishing and Floor Coverings; Schedule 73 Food Service, Hospitality, Cleaning Equipment and Supplies, Chemicals and Services). These eight areas comprise 30% percent of GSA’s FSS contracts and 43% of the volume of GSA Schedules sales. Total GSA Schedules sales accounted for more than $33 billion in FY 2015. Phase in to make the pilot permanent or to expand to other FSS areas is not expected for at least one year. The rulemaking states that the new TDR clause is part of an Administration initiative to fundamentally shift government management of individual purchases and prices across the Federal government to “buying as one through category management.”

Significantly, under the pilot program, vendors will be required to report their TD monthly, and GSA, category management personnel and buying officials across the Federal government will be able to use and share the TD furnished by these vendors to negotiate and leverage lower prices for purchases not only from these vendors, but from other vendors that would sell the same or similar supplies and services. GSA plans to employ automated analysis techniques, such as the new Formatted Product Tool (“FPT”), to facilitate its identification of comparative vendor pricing and to use that data to notify vendors where proposed pricing is “outside a range determined to be acceptable for identical items.” It also intends to use the TD reported to analyze the pricing of similar items or services, and to plan its future strategic sourcing needs.

The government seeks to encourage existing vendors to accept the clause (and therefore the contractor’s requirement to report and the government’s ability to use the TD) by eliminating the Price Reductions Clause’s (“PRC’s”) price protection provision and current quarterly Commercial Sales Practices (“CSP”) disclosures required by the Most Favored Customer (“MFC”) clause, in favor of monthly reporting of TD by covered contractors participating in the pilot program. If after the first-year of the pilot, GSA determines that the TD rule does not result in beneficial savings to government, it could end the program and resume use of the PRC and MFC CSP provisions. Alternatively, it could expand the program. Either way, the contractor must bear the significant burden of establishing a system, electronic or manual, to accumulate, track and report the identified TD elements monthly. It also must face the risk that the government will change or increase the reporting and elements to be captured and reported, and that the government will still require the provision of additional pricing data if the Contracting Officer (“CO”) is unable to make a determination of whether the proposed price is fair and reasonable. Since GSA plans to issue data extracts to provide vendors, and the public, transparency into the range of pricing for the same or similar products, it and the other customers using the GSA FSS, GWACs and IDIQ vehicles are likely to expect vendors to submit offers that take this horizontal market insight into account. While it does not intend that the new TD rule will turn the acquisition system into “a lowest-price procurement model”, GSA expects the government to save billions of dollars as it leverages the TD to be provided by contractors under the new final rule.

In complement to the final TD rule, on July 7, 2016, GSA issued a new Notice, soliciting comments by August 29, 2016, regarding the contractor-reported TD that GSA plans to release to the public. The GSA seeks to provide “valuable market intelligence” to the public, including a contractor’s competitors, and to promote transparency “to the maximum extent allowable”. Accordingly, it is seeking input on how far it can go in the release of TD elements being reported. At this point in time, the Notice only identifies two of the eleven elements to be reported (quantity sold and price per unit) to be exempt from release under the Freedom of Information Act (FOIA) and through a public “data extract”. It is likely that GSA, in soliciting comments, is seeking justification to publicly report this data as well.

Takeaways:

The new TD rule requires contractors to provide the eleven TD elements at no additional cost to the Government. Whether you have a new contract or would accept a bilateral modification to include the clause in your existing contract, you need to develop a compliant system. Plan ahead to address the requirements and costs that will arise due to the change.

The new TD rule requires reporting of TD on all supplies and services delivered by the contractor during the performance of the orders issued against covered contracts, and apparently not just the supplies or services SINs that are part of the pilot program.

Because this is a new way of assessing pricing, the GSA is issuing new GSA Acquisition Manual guidance for government procurement officials. These personnel will need to be trained to understand the uses and limits on the TD being reported.

Given the GSA’s recently issued Notice and request for comments on the releasability of TD data elements, contractors and vendors should make sure that they vigilantly mark and protect their proprietary data from unauthorized use, release and disclosure. They may also consider commenting on this Notice.

Given the recent Supreme Court case on implied certification, Universal Health Services, Inc. v. Escobar, reporting under the final rule may be considered an implied certification. Exercise care to ensure you maintain a consistent and accurate accounting method for tracking and reporting your transactional data, and paying your industrial funding fee (“IFF”) and/or Contract Access Fee (“CAF”).

The new clauses are scheduled to be included in contracts starting as early as July 1. And the Notice is out for comment until August 29, 2016. Please forward this information to your personnel involved in GSA FSS, GWACs, IDIQ contracting and subcontracting. If you have questions about the new rule, or compliance matters, contact Susan Ebner , or your Fortney Scott counsel.

FortneyScott names Elizabeth B. Bradley, Esq. as Shareholder

Fri, 08 Jul 2016 00:00:00 GMT

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 Labors Office of Federal Contract Compliance Programs (OFCCP). She has represented U.S. corporations in successfully defending against OFCCPs review of the contractors 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 firms 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 FortneyScotts 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.

US Department of Labors Persuader Rules Enjoined

Mon, 27 Jun 2016 00:00:00 GMT

On June 27, 2016, the United States District Court for the Northern District of Texas issued a preliminary injunction enjoining the implementation and enforcement of the U.S. Department of Labors Persuader Rule, 81 Fed. Reg. 15,924 et seq. (March 24, 2016). The Courts injunction, issued in National Federation of Independent Business v. Perez (N.D. Texas), is effective nationwide. The now-enjoined rule would have required, effective July 1, extensive reporting on union-related services by employers? outside counsel and consultants, as summarized in FortneyScotts prior alert . The injunction will remain in place until the case is decided on its merits or until a further order is issued by the Court, the Fifth Circuit Court of Appeals, or the Supreme Court.

Supreme Court Upholds UT?s Affirmative Action Program

Thu, 23 Jun 2016 00:00:00 GMT

The Supreme Court today decided that the measures taken by the University of Texas to achieve some measure of diversity among its student body meet the highest standards of strict scrutiny and may continue to be used. Fisher v. University of Texas , No. 14-981 (June 23, 2016). In a closely divided 4-3 decision (Justice Kagan not participating), the Court again held that the goals of enrolling a diverse student body to promote cross-racial understanding and enable students to better understand persons of different races were sufficient to survive Constitutional review.

Although the decision is quite narrow and tailored to the UT program, it is likely that other public universities may try to rely on the Courts ruling as a road map for how they may constitutionally consider race in their admissions programs moving forward. Because of the unique elements of the UT program along with the strongly stated dissent (a States use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause, Thomas, J., dissenting), it is not likely that this decision will end debate in the country or the courts on the issue of affirmative action in college selections.

The Courts decision can be accessed here .

Washington’s Mounting Interest in the High-Tech Industry’s Diversity Efforts

Tue, 21 Jun 2016 00:00:00 GMT

Over the last few months, federal policy-makers have engaged in what appears to be a highly-orchestrated campaign aimed directly at clamping down high-tech industry. The two agencies responsible for enforcing federal Equal Employment Opportunity (EEO) laws have intensified their focus on the technology sector’s diversity, inclusion and affirmative action efforts in recent weeks, while members of Congress have begun demanding change.

In addition, the White House has coordinated two summits where the lack of diversity in the booming tech sector may further escalate federal policy makers’ interest. These recent and upcoming activities, which we have detailed below, appear to be laying the ground work for additional federal action.

OFCCP – The U.S. Department of Labors Office of Federal Contract Compliance Programs (OFCCP) has been targeting the technology industry. Over the last year, a number of industry stalwarts have experienced far more extensive and burdensome OFCCP evaluations than in the past.

EEOC – On May 18, the Equal Employment Opportunity Commission (EEOC) held a public meeting focused on diversity and inclusion in the technology industry. Following the meeting the agency released a report, Diversity in High Tech .

Congressional Black Caucus Letter – On May 25, 2016, the Congressional Black Caucus sent a letter to the U.S. Secretary of Labor Tom Perez calling for increased diversity in the technology industry and demanding greater scrutiny of industry government contractors employment of African Americans.

Tri Caucus Resolution – On June 2, 2016, the Tri-Caucus, the Congressional Black Caucus, Hispanic Caucus and Asia Pacific Caucus, introduced a non-binding resolution declaring Congresss support of efforts to increase diversity and inclusion and to eliminate barriers faced by people of color and other underrepresented groups in the technology sector.

GAO Study – Although not publicly reported, we are also aware that Congress investigative arm, the U.S. Government Accountability Office (GAO), is currently working on a report focusing on technology industry EEO matters.

United State of Women Summit – On June 14-15, 2016, The White House Council on Women and Girls, the State Department, the U.S. Department of Labor, the Aspen Institute and Civic Nation hosted the United State of Women Summit . The summit has been described as a large-scale effort aimed at rallying together advocates of gender equality to highlight what has been achieved, to identify the challenges that remain, and to chart the course for addressing them. It focuses on a number of topics that are highly relevant to the industry's diversity and inclusion efforts, including equal pay, pay transparency, labor force participation, STEM education, and enhancing investing for female entrepreneurs.

Prior to summit, the White House reached out to employers with an Equal Pay Pledge. Employers who sign to the pledge agree to conduct an annual company-wide gender pay analysis, review promotion processes and hiring to reduce unconscious bias, and embed equal pay efforts into broader equity. At the start of the summit, 28 companies including the following employers in the high tech industry had signed the pledge: AirBnB, Amazon, Care.com Cisco, Expedia, Glass Door and GoDaddy Salesforce, Slack, Spotify and Pinterest.

The 2016 Global Entrepreneurship Summit (GES) – On June 22-24, President Obama will host the 7th Annual Global Entrepreneurship Summit (GES) at Stanford University. In announcing the location of the 2016 Summit, President Obama renewed his previous call to action for inclusive entrepreneurship: I'm calling on the private sector, foundations, investors, and universities to help us increase opportunities for all entrepreneurs, no matter who they are, where they re from, or what they look like.

FortneyScott will continue to track this issue. For more information, please contact Leslie Silverman, or the FortneyScott attorney with whom you work.

Supreme Court Decides False Claims Act Case: Universal Health Services, Inc. v. Escobar

Fri, 17 Jun 2016 00:00:00 GMT

On June 16, 2016, the Supreme Court issued its unanimous decision in Universal Health Services, Inc. v. Escobar (No. 15-7). The decision, authored by Justice Clarence Thomas, is significant for federal contractors because it affirms False Claims Act (FCA or the Act) liability under the theory of implied false certification. In addition, the opinion addresses the contours of the materiality standard of the FCA and defines when implied false certification breaches or violations are actionable under the Act.

What is Implied False Certification?

Under the theory of implied false certification, when a defendant submits a claim, it tacitly certifies compliance with all of the Governments conditions of payment. Thus, the Court has now held that if a defendant fails to disclose a violation of a material statutory, regulatory, or contractual requirement, the defendant may be found to have made a misrepresentation that renders the claim false or fraudulent. Violations of the FCA can lead to potential civil penalties of up to $10,000 per false claim and the assessment of treble damages. (See FortneyScotts alert dated June 17, 2016 about FCA.) The decision in Universal Health resolves a split among the Federal Circuit courts over the validity and scope of the implied false certification theory of FCA liability.

Factual Background

Universal Health owned and operated a mental health facility in Lawrence, Massachusetts. After a patient died from an adverse drug reaction, the states investigation revealed that few of the facility's employees were actually licensed to provide mental health counseling and received minimal supervision. The state ultimately issued a report detailing over a dozen Massachusetts Medicaid violations governing the qualifications and supervision required for staff at a mental health facility. Invoices submitted by the facility identified treatments upon which the federally-funded payments were to be made.

In 2011, the parents of the deceased patient filed a qui tam suit in federal court alleging that Universal Health violated the FCA under the theory that the invoices were conditioned on the implied certification that the services were performed by qualified medical personnel when they were not, in fact, qualified.

Key Holdings

1. Implied false certification can be a basis for FCA liability

The Court concluded that implied false certification can be a basis for FCA liability when two conditions are met: (1) the claim does not merely request payment, but also makes specific representations about the goods or services provided, and (2) the defendants failure to disclose noncompliance with material statutory, regulatory, or contractual requirements makes those representations misleading half-truths.

In this case, Universal Health submitted claims to Medicare using payment codes for the patients medical care. In doing so, it represented that certain types of medical professionals had provided specific kinds of treatment. By conveying this information without disclosing [Universal Health's] many violations of basic staff and licensing requirements for mental health facilities, the Supreme Court held that Universal Health's claims constituted material misrepresentations.

2. FCA liability is not limited to misrepresentations about express conditions of payment

The Court further held that a contractors liability is not limited to where it fails to disclose the violation of a contractual, statutory, or regulatory provision that the government expressly designated as a condition of payment. The Court held that these and other provisions that were not expressly designated also might be material conditions to payment and, therefore, a contractors failure to disclose a noncompliance with those provisions might constitute an implied misrepresentation. As the Court explained, a statement that omits critical facts is a misrepresentation irrespective of whether the other party has expressly signaled the importance of the qualifying information.

3. A defendants misrepresentation about compliance must be material to the Governments payment decision in order to be actionable

The Escobar decision also addresses the FCAs materiality requirement. The Court states that the materiality standard is a demanding one and that the FCA is not intended to be used as an all-purpose antifraud statute? to remedy trifling breaches or noncompliance.

The Escobar decision explains the mere fact that the Government labels a requirement as a condition of payment is not enough to establish materiality, although it may be relevant to the inquiry. Proof of materiality can include evidence that the defendant knows the government consistently refuses to pay claims based on particular noncompliance. On the other hand, knowledge that the government pays particular claims despite its knowledge of violations suggests that a requirement, even one that is expressly identified, may not be material.

Finally, the Court explicitly rejected the First Circuits view of materiality that any statutory, regulatory, or contractual violation is material if the defendant knows that the government would be entitled to refuse payment if it knew of the violation.

Effect on Federal Contractors

Given the Courts holding that implied false certification will support FCA claims, plaintiffs now can allege that regulatory or statutory violations support FCA claims and seek significant monetary damages.

While federal contractors may take solace in the Courts repeated emphasis that the FCA is not an all-purpose fraud statute and that materiality cannot arise from garden-variety breaches or violations, new regulations, and those on the horizon, pose expanded risks for contractors. For example, proposed regulations implementing the Executive Order on Fair Pay and Safe Workplaces will require contractor certifications of compliance with a host of Federal and State employment and labor laws. The Supreme Courts ruling in Escobar may facilitate greater FCA claims based on the new certification requirements.

Finally, it remains to be seen how the Courts new guidance on materiality will affect litigation in FCA cases particularly with regard to the early dismissal of claims. The assessment of the implied false certification claims and likely materiality defenses are certain to raise disputed issues of material fact that may result in more protracted discovery and motion practice and trials.

Best Practices for Federal Contractors

To help mitigate these new FCA liability risks, whether submitting a proposal for a federal contract or seeking government action, inaction or payment under a government prime or subcontract, a federal contractor should ask itself:

(1) whether it is making any type of express or implied representation in its submission,

(2) whether there are any material facts that are not disclosed, or that are stated in such a way that reasonably could be considered misleading. If so, the contractor needs to consider whether it must revise or more fulsomely disclose in its submission to reduce the risk of an implied false certification.

Should you wish to discuss these matters further, or if you have questions, please contact your FortneyScott attorney.

OFCCP Announces New Sex Discrimination Rules

Tue, 14 Jun 2016 00:00:00 GMT

The OFCCP will be publishing its new “ Discrimination on the Basis of Sex ” rule in the Federal Register on June 15, 2016. The rule will become effective on August 15, 2016 and updates the current Sex Discrimination Guidelines which have not changed since 1970.

Check back for updates, or if you have any questions, please contact your FortneyScott attorney.

EEOC Releases Draft Guidance on National Origin Discrimination, and Requests Public Comment

Fri, 03 Jun 2016 00:00:00 GMT

The U.S. Equal Employment Opportunity Commission (“EEOC”) issued proposed enforcement guidance on national origin discrimination on June 2, 2016.

Key Takeaways:

The EEOC guidance incorporates a wide array of topics related to national origin discrimination including intersectional discrimination, human trafficking, harassment, accent and fluency, national security requirements, and citizenship issues. In addition, the guidance also includes a “promising practices” section highlighting actions or programs to help employers reduce the risk of Title VII violations based on national origin. Although the EEOC has not included sweeping changes in re-interpreting Title VII, there are a number of areas where the agency is pushing the envelope to expand the scope of national origin coverage.

Additional Details:

When finalized, the guidance will replace Section 13 of the EEOC’s Compliance Manual, which was issued 14 years ago, in December 2002. It is somewhat surprising that the agency chose to update its guidance on national origin at this time, because there have been very few significant changes in this area of the law since the prior guidance issued. Additionally, the number of charges alleging national origin discrimination has remained steady during the 14-year-period. In 2002, 10.6 percent of EEOC charges alleged national origin discrimination. As of last year, that number rose a mere 0.1 percent to 10.7 percent.

The most significant aspects of the EEOC’s proposed guidance:

Overlap and Intersectional Discrimination – The EEOC expects claims of national origin discrimination to be more likely to overlap with allegations of race, color or religious discrimination, resulting in charges alleging multiple bases of discrimination. The EEOC considers adverse treatment because an individual is a combination of two or more protected bases, i.e. an Asian woman to be ?intersectional discrimination” that should result in claims of national origin, race and sex discrimination.

Human Trafficking – Title VII can apply to human trafficking cases if the employer’s conduct is directed at an individual or a group of individuals based upon national origin. The EEOC also indicates that egregious employer conduct that is typical in human trafficking cases will likely constitute unlawful harassment.

Recruitment – If an employer’s current staff is ethnically or racially homogenous, the EEOC is more likely to view word of mouth recruitment and sending job posting only to ethnically or racially homogenous areas or audiences as having the purpose effect of excluding applicants based on national origin.

Joint Employer – When a staffing firm and an employer have the right to control the means and manner of a worker’s employment they may be considered joint employers under Title VII regardless of whether they actually exercise that right to control the worker’s employment or have the statutory number of employees.

Screening Based on Social Security Number – The practice of screening out new hires or candidates who cannot provide a Social Security number could run afoul of Title VII’s disparate impact theory if it disproportionately screens out work-authorized but newly-arrived immigrants and new lawful permanent residents of a certain ethnicity or national origin.

Harassment Policies in Employees’ Native Spoken Language – In evaluating the effectiveness of the employer harassment policy for a Farragher-Ellerth affirmative defense, the EEOC will consider whether the complaint mechanism was accessible in the native languages spoken by employees if the employer knew of, or should have known of, the employees’ limited language capabilities.

The Impact of the Guidance – Although EEOC Enforcement Guidance does not carry the same force of law that regulations establish, many courts are willing to provide deference to EEOC guidance and rulings based on the agency’s knowledge and expertise. The EEOC relies upon its Enforcement Guidance to direct its employees in charge investigations and related processing such as making cause determinations and considering litigation.

Follow Up Actions for Employers:

The public has until July 1, 2016 to provide input on the proposed guidance. The EEOC will consider the public’s comments before finalizing and releasing the guidance.

Employers should review the EEOC’s proposed guidance on national origin and consider whether their current policies and practices are in compliance.

Please contact FortneyScott if you have questions about the proposed National Origin Enforcement Guidance and how it may affect your business. For more information, contact Leslie Silverman, Esq. , Shareholder at FortneyScott and former Vice Chair of the EEOC, or by telephone, 202-689-1204.

Cost of Living Adjustment of Civil False Claims and False Statement Penalties

Tue, 31 May 2016 00:00:00 GMT

Overview

The financial penalties for violating federal contracting obligations are going up beginning July 1, 2016. Thereafter, there will be annual COLA increases for such penalties. Adjusted penalty levels may increase to as much as 250 percent of the level(s) in effect in 2015, and each agency is authorized to increase the penalty itself by as much as 150 percent. Accordingly, contractors may face a significant range of penalties depending on the penalty increases assessed by the individual agencies that they contract with. The bottom line is that the risks related to potential false claims and false statements are increasing for federal contractors. The details are provided below.

The New Civil Penalties

The Federal Civil Penalties Inflation Adjustment Act of 1990, as further amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (“FCPIAA”), provides for adjustments for inflation to the civil monetary penalties that Executive Agencies can assess for violations of applicable statutes and regulations, including those relating to False Statements and False Claims. The amendment also provides for FCPIAA escalation of Occupational Health and Safety Act violations.

The Office of Management and Budget’s (“OMB’s”) implementing memorandum states that “[i]n accordance with the 2015 Act, however, agencies shall not increase penalty levels by more than 150 percent of the corresponding levels in effect on November 2, 2015. Note: The 150 percent limitation is on the amount of the increase; therefore, the adjusted penalty level(s) will be up to 250 percent of the level(s) in effect on November 2, 2015.” Agencies have until July 1, 2016 to issue their specific interim final rules to adjust civil monetary penalties.

Following up on the FCPIAA and OMB guidance, on May 26, 2016, the Department of Defense (“DOD”) issued its interim final rule to adjust the civil monetary penalties that it may access for violations of designated provisions, including notably violations involving False Claims and False Statements. Under the interim final rule, the maximum per-claim penalty for such violations will increase to $10,781 from $5,500. 81 Fed. Reg. 33391. The stated purpose of the adjustment is to “improve the deterrent effect of civil monetary penalties and to promote compliance with the law.” Id. As noted by the interim final rule, the DOD is authorized to issue a “cost-of-living adjustment” to escalate this amount each year.

Significantly, the interim final rule provides that the escalated penalty “must apply only to civil monetary penalties, including those whose associated violation predated such increase, which are assessed after the date the increase takes effect (i.e., July 1, 2016).” [Emphasis added.]

Take-Away:

As noted above, these new penalties can be assessed against violations predating the escalation.
Make sure that you have a working compliance program and training to ensure your personnel understand the importance of compliance with applicable laws and regulations.
Federal Acquisition Regulation (“FAR”) Mandatory Disclosure rules require reporting of credible evidence of actual or suspect violations. Early identification will help you to timely report and address such matters. If you become aware of a possible violation of covered laws or regulations, take appropriate steps to promptly investigate.

If you have any questions with regard to these matters, please contact Susan Warshaw Ebner , or the FortneyScott attorney with whom you work.

FAR Final Cybersecurity Rule Sets Basic Level of Safeguarding

Tue, 24 May 2016 00:00:00 GMT

The Federal Acquisition Regulation (FAR) Council has issued a final rule , effective June 15th, requiring government contractors to implement a basic level of safeguards on their contractor information systems. The final rule includes 15 requirements for the safeguarding of contractor systems that “process, store or transmit Federal contract information.” “Federal contract information” is broadly defined to include information that is not public and that is “provided by or generated for the Government under a contract to develop or deliver a product or services to the Government.”

The final FAR rule is in addition to other cybersecurity safeguarding rules and requirements specified by Federal agencies. Unlike the Defense FAR Supplement rule that we previously reported on , which requires compliance with NIST 800-171 but provides a mechanism for contractor deferment of final implementation until December 31, 2017, the new FAR rule will apply immediately in all contracts and procurements in which it is included. The rule applies to all procurements, including procurements of commercial items (CI) other than commercially available off-the-shelf (COTS) items. Contractors will be required to flowdown the new rule to their subcontracts for the acquisition of supplies or services, including CI other than COTS items, if the subcontractor may have Federal contract information “residing in or transiting through its information system”.

Stay alert for the inclusion of the new rule, 52.204-21 Basic Safeguarding of Covered Contractor Information Systems (JUN 2016), in your procurements, and in requests for bilateral modifications of your existing contracts. Compliance with the new rule may increase your costs and risks of performance. If you would like more information on the new rule and how it may affect you, please contact Susan Warshaw Ebner .

EEOC Holds Public Meeting on Diversity in Tech Industry

Thu, 19 May 2016 00:00:00 GMT

On May 18, 2016, the Equal Employment Opportunity Commission (EEOC) held a public meeting on the topic of diversity in the tech industry, entitled “Innovation Opportunity: Examining Strategies to Promote Diverse and Inclusive Workplaces in the Tech Industry.”

At the meeting, EEOC staff presented findings from a new report, “ Diversity in High Tech ,” which the agency released following the hearing. The EEOC report analyzes demographic data and other trends in the tech industry. EEOC Commissioners also heard remarks from a panel of experts across various fields who shared strategies and insights into the state of diversity in the tech sector and offered solutions for promoting equal employment in the high tech community.

EEOC Report Analyzes Employment Patterns in the Tech Industry

Ronald Edwards, Director of the Program Research and Surveys Division with the Office of Research, Information and Planning at the EEOC, testified about the findings from the new EEOC report. The report, which was based on a literature overview and analysis of EEO-1 data from tech firms, concluded that the high tech industry displays overall disparities in the employment of women, African-Americans, and Hispanics when compared to all industries nationwide. Among other things, the report found that:

African-Americans, Asian-Americans, and women may face barriers to advancement, as indicated by a pattern where women and nonwhite employment decreases as job group increases from technicians up to executives;
African-Americans and Hispanics had lower representation in the high-tech industry by a substantial margin, as compared to all private industries; and
Among the top 75 high tech firms in Silicon Valley, Asian-Americans make up 50% of professional jobs, yet only 36% of combined management positions.

While the report did not inquire into why or how these disparities arose, at the Commission meeting, the EEOC intends for the study to advance conversation around issues of diversity and to identify areas for future research. Throughout the meeting, Chair Jenny Yang along with other members of the Commission expressed a desire to dig deeper into the issues of diversity and inclusion that are impacting the high tech sector and to use the Commission’s resources to shine a light on and help the industry resolve these critical issues.

The EEOC Report underscores the significant role that the high-tech sector plays in fueling the U.S. economy and the industry’s pivotal role in creating high paying, sustainable jobs with strong growth potential. The EEOC has highlighted the well-known fact that the high-tech sector is falling short in diversity and inclusion efforts as it continues to employ a smaller percentage of women, African Americans and Hispanics as compared to the overall private sector.

Panel Discussion Provides Insights into Disparities and Explores Possible Solutions

Five panelists offered further insights into the state of diversity in the tech industry: Ben Jealous, former head of the NAACP and current partner at Kapor Capital; Erin Connell, an employment attorney at Orrick, Herrington & Sutcliffe; Camilla Velasquez, head of product and marketing at JustWorks; Laurie McCann, an attorney with the AARP Foundation; and Kweilin Ellingrud, a partner at McKinsey & Company.

In their testimony, the panelists observed that:

There is a technology talent shortage and it is rapidly increasing. By 2020, there will be 1.4 million computing jobs in the United States, but only 400,000 suitably-skilled workers to fill them-a talent gap that makes it more imperative than ever for high-tech companies to focus on diversity and inclusion initiatives;

Hiring of women and minorities (particularly African-Americans and Hispanics) in tech jobs is not getting better and appear to be growing worse, largely due to the pipeline problem of those groups being discouraged (or not encouraged) from studying computer science, majoring in STEM fields or joining the industry; and

In addition to race and gender disparities exposed in the EEO-1 data and other studies, there are far fewer older workers in the tech sector; hiring policies and practices designed to attract and hire younger employees are making it even more challenging for older workers to join this critical segment of the workforce.

The panelists discussed strategies and best practices to promote diversity in the tech field, ranging from more traditional solutions-such as ensuring pay equity, expanding family-friendly leave and health benefits-to other innovations, like hidden bias training, incentive payments to recruiters for diverse candidates, and requiring at least one female or minority candidate to be considered when hiring for certain open positions.

For more information with regard to this meeting, please contact Leslie Silverman .

New Overtime Regulations Have Been Issued

Wed, 18 May 2016 00:00:00 GMT

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 .

EEOC Issues Final Rules Governing Employee Wellness Programs and Antidiscrimination Laws

Tue, 17 May 2016 00:00:00 GMT

On May 17, 2016, the Equal Employment Opportunity Commission (EEOC) issued two final rules (available here ) that establish the extent to which employers may offer incentives to encourage employees and their spouses to participate in corporate wellness programs. The rules offer guidance on the degree to which employers may, consistent with Title I of the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act (GINA), inquire about health and disabilities or conduct medical examinations as a pre-condition to receiving incentives for wellness programs. The new regulations allow employer-sponsored wellness programs to move forward, provided that employers follow EEOC’s roadmap designed to safeguard against discrimination.

While the final rules track the proposed rules in many respects, they contain a few significant changes that will limit the incentives employers may offer employees and their spouses to participate in wellness programs. The final rules will go into effect on January 1, 2017.

The EEOC’s final rules are intended to harmonize the Health Insurance Portability and Accountability Act (HIPAA), the Patient Protection and Affordable Care Act (ACA) and the joint regulations issued by the Departments of Labor, Health and Human Services, and Treasury (the “Tricare regulations”). Although the ACA permits employers to offer financial incentives to encourage participation in wellness programs, there has been a tension between the incentives allowable under the ACA and Tricare regulations and those permitted under the ADA, which precludes employers from making medical inquiries or conducting medical examinations on employees unless they are part of a “voluntary” health program. There has also been tension with GINA, which limits employers’ ability to ask questions about an employee’s family medical history. In order to address these inconsistencies, the EEOC proposed rules in April 2015 to carve out a narrow exception to the ADA in order to allow employers to gather this information as part of a wellness program. In October 2015, the EEOC proposed rules addressing the extent to which employers may properly offer incentives to an employee’s spouse to participate in a wellness program.

The most important changes from the proposed rules and the most significant changes from the ACA and Tricare regulations are:

Limits on Financial Incentives EEOC declined to revise financial incentive limits to make them consistent with those established in the Tricare regulations. In addition, employers will no longer be able to offer the same level of financial incentives to employees with family coverage as currently permitted under the ACA.

ADA Employers may only offer financial incentives of up to 30% of the total cost of self-only coverage premiums. This is contrary to the ACA, which permits employers to offer financial incentives of up to 30% of the plan premium in which the employee and any family members are enrolled.

GINA Spousal incentive are limited to up to 30% of the total cost of ?self-only? coverage under the group plan.

Tobacco Cessation Employers may not offer enhanced incentives for programs aimed at curbing tobacco use if the program tests for the presence of nicotine. Under the Tricare regulations, employers may offer incentives of up to 50% of the cost of coverage for smoking cessation.

New Rule Applies More Broadly The proposed rules only applied certain provisions, such as limits on financial inducements to wellness programs that were that were part of a group plan. The EEOC revised the proposed rule so that the entire rule now applies any employer-sponsored wellness program that offers incentives and asks disability-related questions or requires medical examinations, including a program offered outside a group health plan or a program offered by an employer who does not provide group health insurance.

Notice/Confidentiality The proposed notice and confidentiality provisions will apply to wellness programs regardless of whether they are offered as part of a group health plan or offered as a benefit by employers that do not offer group health insurance to their employees.

ADA Employers must provide participating employees with a notice that explains what information will be collected as part of a wellness program, with whom the information will be shared and for what purpose, limits on disclosure, and how personal health information will be kept confidential.

GINA The new rule includes statutory notice and consent provisions for health and genetic services provided to employees and their family members.

Reasonably Designed Standard As in the proposed rule, employee health programs must be reasonably designed to promote health and prevent disease. Employers protested that the requirement, which gives the EEOC the opportunity to determine the worthiness of an employer wellness program, is not only duplicative of the ACAs existing requirements, but goes well beyond the civil rights agency's area of expertise and statutory authority.

ADA Safe Harbor Despite two court decisions to the contrary, the EEOC reaffirmed its position that the ADA safe harbor would not apply to wellness programs that are part of a group health plan.

There are a few silver linings for employers:

No Affordability Standard - Although the EEOC did not include an ?affordability standard? in the proposed rule, the Commission requested public input on whether one would help the agency determine whether a wellness program is voluntary under the ADA.
No Prior Written Authorization - The agency declined to include a requirement in the final rule that employees provide prior written and knowing authorization. Employers argued that such authorization was unnecessary and would only increase administrative and compliance costs.

With the new rules in place, employers should review their wellness plans to determine if they fall within the limited permissible exceptions to the ADA and GINA. While the intent of rules is to offer clarity, they can also blur some lines on a plan-by-plan basis-as often happens in the regulatory space. Employers need to remain vigilant that their plans are compliant.

If you have any questions, please contact Leslie Silverman, or your FortneyScott attorney with whom you work.

DOL Issues Long-Awaited Final Rule on Overtime Regulations

Tue, 17 May 2016 00:00:00 GMT

On May 18, 2016, the Department of Labor (DOL) will finalize the rule implementing revisions to the overtime regulations of the Fair Labor Standards Act. The release of the rule ends months of intense speculation as to its major features-in particular, prognostication about the new “white-collar” exemption salary threshold and whether the final rule would alter the primary duty test.

According to a May 17, 2016 White House press release , the new rule will “extend overtime protections to 4.2 million more Americans who are not currently eligible under federal law, and it is expected to boost wages for workers by $12 billion over the next 10 years.”

As discussed below, notable provisions in the final rule include:

The salary threshold is increased from $23,660 per year to $47,476 (or $913 per week);
The salary threshold will automatically update every three years;
The highly compensated employee exemption salary threshold is increased to $134,004;
The final rule does not change the current primary duty test; and
The final rule has an effective date of December 1, 2016.

White Collar Exemption Salary Threshold Increased to $47,476

The final rule doubles the current salary threshold for the so-called “white collar exemptions” (i.e., executive, administrative, professional, and computer employees) from $23,660 a year to $47,476. The threshold is pegged to the 40 ^th percentile of full-time salaried workers in the lowest-wage Census Region, currently, the South. Even though the final figure is several thousand dollars below the $50,440 proposed by DOL last July, many employers believe the increase is far too drastic. In addition, for the first time, employers will be able to count certain bonuses and incentive payments (including commissions) toward as much as 10 percent of the salary threshold, so long as these payments are made at least quarterly. Examples of such payments include bonuses for meeting production goals, retention bonuses, and commission payments based on a fixed formula.

Salary Threshold Will Automatically Update Every Three Years

The new rule provides that the salary threshold will update automatically every three years, with the first update taking place on January 1, 2020. The administration has projected that the threshold will increase to $51,000 in 2020. The DOL will publish all updated rates in the Federal Register at least 150 days before their effective date, and also post them on the Wage and Hour Division’s website. A number of commentators have argued that this indexing feature may be vulnerable to legal challenges, so stay tuned for further developments.

Highly Compensated Employee Exemption Threshold Increased to $134,004

The salary requirement for the highly compensated employee exemption has increased by 34%, from $100,000 per year to $134,004-a figure tied to the 90th percentile of full-time salaried workers nationally. As with the white-collar salary threshold, the highly compensated employee threshold will increase every three years.

No Change to “Primary Duty” Test

Significantly, the final rule does not change the requirements of the current “primary duty” test, which allows an employee to be exempt even if she spends less than 50% of her time performing exempt duties, so long as her primary duty or duties are exempt duties. While the DOL’s proposed regulations did not offer any specific changes to the primary duty test, the Department did invite comments on whether any adjustments were necessary, fueling speculation about whether the rule would impose a strict new standard akin to the one currently in place in California.

The New Standards Become Effective on December 1, 2016

As something of a silver lining for employers, the final rule has an effective date of December 1, 2016, giving employers nearly 200 days to comply after the rule’s final publication in the Federal Register. This far exceeds the 60 days that many commentators were anticipating and gives employers significantly more time to come into compliance with the new rule. The DOL has released three technical guidance documents designed to help private employers, non-profit employers, and institutions of higher education come into compliance with the new rule.

In addition to the above, these new overtime rules will have an effect on government contracts. Government contractors should review their contracts to determine the impact these changes may have on their contract performance, direct and indirect rates, and pricing.

FortneyScott’s subject matter experts will present a complimentary webinar to discuss the details of the regulations and modes of response on May 25, 2016. To register, CLICK HERE .

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

Thu, 12 May 2016 00:00:00 GMT

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 disabilities.

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 employees disability. Although the resource document was not voted on by the Commission and cannot be considered official EEOC guidance, it is still worthy of employers attention. The guidance is divided into the following subject areas:

Equal Access to Leave Under an Employers 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 disability.

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 employers 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 employees absence on coworkers and on whether specific job duties are being performed in an appropriate and timely manner, and the impact on the employers 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 accommodation.

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

New FAAP Guidelines Approved by OMB

Tue, 10 May 2016 00:00:00 GMT

On May 9, 2016 the OFCCP announced the OMB approval of the new Functional Affirmative Action Plan (FAAP) guidelines effective April 28, 2016. The new guidelines , 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 questions.

Key Steps to Prepare for Expected Federal Blacklisting Rules

Wed, 04 May 2016 00:00:00 GMT

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 “non-responsible.”

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 subcontracts.

2. 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.

3. 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.)

4. 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.”

5. 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.”

6. 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.

7. 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.

New Guide to FMLA Issued by DOL

Mon, 25 Apr 2016 00:00:00 GMT

The 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 poster .

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

Wed, 23 Mar 2016 00:00:00 GMT

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, 2016.

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 conduct;
Coordinating or planning counter-organizational campaign;
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 services . 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 conduct;

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.

FortneyScott Selected as a Member of the Employment Law Alliance

Thu, 17 Mar 2016 00:00:00 GMT

FortneyScott has been selected as the District of Columbia member of the Employment Law Alliance (ELA), the world’s largest network of labor, employment and immigration lawyers. The ELA provides employers coverage across the U.S., in every Canadian province and in 120 countries. More details about FortneyScott’s selection are available here .

Proposed Overtime Exemption Regulations are Imminent

Tue, 15 Mar 2016 00:00:00 GMT

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 employees 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.

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

Tue, 15 Mar 2016 00:00:00 GMT

This 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.

Although 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.

OFCCP’s 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.”

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

Paid Leave NPRM Published in Federal Register

Thu, 25 Feb 2016 00:00:00 GMT

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.

FortneyScott 2nd Lunch & Learn: Mandatory Annual Compensation Disclosure: The Revised EEO-1 Report

Fri, 12 Feb 2016 00:00:00 GMT

FortneyScott is offering the second in its complimentary, five-part Lunch & Learn series
to assist you in responding to the new workplace regulations and compliance obligations. The second session is entitled, Mandatory Annual Compensation Disclosure: The Revised EEO-1 Report.

At the White House on January 29, 2016, President Obama announced the Equal Employment Opportunity Commission (EEOC)’s proposed revision of the EEO-1, converting it into a vehicle to collect pay data. The proposed revision will add a component to the current EEO-1 report which requires disclosure of compensation and hours worked data by seven race and ethnicity categories and ten job categories, all to be displayed in the 12 pay bands proposed by the EEOC.

Early estimates have counted well over 1,000 different cells to be reported in each EEO-1 Report. This annual obligation is imposed on employers who have 100 or more employees beginning with the 2017 report.

The proposal to report W-2 pay data by pay band and EEO-1 job group raises many compliance questions for employers, from the scope of the compliance burden to the security of confidential compensation information. Join the Lunch & Learn to hear the issues discussed in depth.

EEOC to Collect Employee Compensation through EEO-1 Report

Tue, 02 Feb 2016 00:00:00 GMT

At 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 report.

The 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 determined.

Specifically, 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 30 ^th .

The 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.

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

FortneyScott Announces its 2016 Lunch & Learn Series

Fri, 08 Jan 2016 00:00:00 GMT

FortneyScott is offering a complimentary, five-part, 2016 Lunch & Learn series to assist you in responding to the new workplace regulations and compliance obligations. The series starts January 26, from 12 noon to 1:30 pm (Eastern) . The first session is entitled Overview of Employers’ New Compliance Obligations – What to Expect in 2016 .

NOTE TO REGISTRANTS: Attendees who register for all five Lunch & Learn series will receive both a complimentary white paper providing an overview of the 2016 regulations and a detailed chart outlining the 2016 regulatory schedule.

Proposed Changes to Clarify Federal Gift Rules May Muddy Waters on Gift-Giving

Thu, 24 Dec 2015 00:00:00 GMT

Federal contractors of all types are subject to specific rules on gifts to government officials. When considering whether to host a holiday party, give a gift or event commemorative, or provide a service or intangible to a public official or employee (the “official”), Federal contractors need to consider the special ethics rules that apply to the official with whom they interact.

Federal statutes prohibit the offer or acceptance of bribes, kickbacks and gratuities. In addition, Federal ethics rules restrict the giving of gifts, including invitations to events, to an official because of the official’s position, or because the contractor has an interest that may be substantially affected by the performance or non-performance of the official’s public duties. Under existing gift rules, an official is not permitted to solicit or accept gifts from outside sources unless an exception or exclusion applies.

The Office of Government Ethics (OGE) has proposed changes to clarify its rules on solicitation and acceptance of gifts that may make gift-giving more uncertain. Examples of these changes include the following:

1.Currently, the giving of a gift to a public official because of his/her position is prohibited unless it falls under an applicable exception or exclusion. Gifts may cover any “thing of value”, such as discounts, loans, food, events, artwork, transportation, in-kind services. The proposed rules would change the definition of “gifts” and applicable exclusions and exemptions.

2. OGE proposes to encourage government officials to consider declining otherwise permissible gifts based on a new “flexible non-binding” standard -i.e., if a reasonable person would question the official’s integrity if he or she were to accept a gift from an outside source such as a federal contractor. OGE proposes eight potential factors to be considered by the official in making the assessment:

(i) market value of the gift,
(ii) whether the donor may be substantially affected by performance or nonperformance of the official’s duties,
(iii) whether the official would feel a sense of obligation,
(iv) whether the gift would create an appearance of preferential treatment,
(v) for an event gift, whether the government provided persons with views or interests that differ from the donor,
(vi) whether the event is open to the public or news media,
(vii) whether the gift would cause a reasonable person to question the official’s ability to act impartially,
(viii) whether the gift would interfere with the official’s conscientious performance of duties.

In applying these factors, OGE would focus employees and ethics officials on “whether acceptance of the gift could affect the perceived integrity of the employee or the credibility and legitimacy of the agency’s programs.” 80 Fed. Reg. 700

3. Current OGE rules provide that written authorization to accept an invitation to a widely attended gathering (WAG) is only required where the individual entity, or members of the organization inviting the official, have interests that may be substantially affected by the performance or nonperformance of the official. The proposed OGE rule would exempt a WAG expected to provide an opportunity to exchange ideas and views among invited persons, but only if the invited official obtains advance written authorization. Depending on the circumstances, an event that is not expected to be attended by more than 100 people may not qualify as a WAG.

Conclusion:

Gift-giving rules are numerous, complex and changing. Before offering any “thing of value” to an official, it’s important to carefully analyze whether the “gift” would fall under an exception or exclusion to current or proposed Federal gift-giving restrictions.

Contact us for assistance analyzing your requirements under these rules and/or seeking formal agency ethics officer approval of applicable exemptions or exclusions.

DOD Meeting Makes Clear DOD Cybersecurity Rule Will Trigger New Requirements

Brad@automationlinks.com (Brad Smith) — Tue, 15 Dec 2015 00:00:00 GMT

We previously notified you of a meeting on the new updated Department of Defense (DOD) rule on cybersecurity, DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting (August 2015), and its October 2015 Class Deviation. The meeting, hosted by DOD, made clear that these new updated rules pose significant new obligations for DOD contractors and subcontractors. Your company's procurement and legal compliance representatives need to be on top of these matters.

Key Developments:

DOD considers the new obligations to be triggered under the clause when performance of the DOD contract or subcontract involves ?Covered Defense Information? (CDI) or operationally critical support (OCS). These significant obligations require contractor information systems to comply with new NIST 800-171 standards and, where the contractor uses cloud services, require notification and use of Government-approved cloud services providers for cloud storage or transmission under DOD contracts. Contractors are required to report a cyber incident that affects a covered system or the CDI, or that affects the contractors ability to perform the OCS requirements. Contractors have the right to seek additional compensation to meet these obligations, but to do so they must initiate specific steps before agreeing to the new terms.

Triggers:

Application of the clause is triggered if a DOD contract would provide the contractor, or the contractor otherwise would collect, develop, receive, transmit, use or store, of any of the following four types of CDI in support of performance of your DOD contract or subcontract:

Controlled technical information [CTI].
Critical information (operations security).
Export controlled information.
Any other information, marked or otherwise identified in the contract, that requires safeguarding or dissemination controls pursuant to and consistent with law, regulations, and Government-wide policies (e.g., privacy, proprietary business information).

The clause also is triggered if the contractor would provide OCS, meaning supplies or services the Government designates as ?for airlift, sealift, intermodal transportation services, or logistical support that is essential to the mobilization, deployment, or sustainment of the Armed Forces in a contingency operation.

Requirements:

Compliance with the clause requires that a contractors covered systems and protection of CDI meet the new NIST SP 800-171 standards. Use of cloud services (CS) to store or transit CDI in performance of the contract requires DOD notice and use of DOD-approved cloud services. Contractors must rapidly report directly to DOD on a cyber incident that affects, or risks affecting, a covered contractor information system or CDI, or that affects the contractors ability to perform the operationally critical support requirements. Only pre-approved personnel can do the reporting. The requirements apply to contractors and subcontractors.

Takeaways and Next Steps:

Ensure your company's procurement and legal compliance representatives are up to speed on these new, significant changes for DOD contracts.

If asked to include the new clause in your existing contract, you have the right to seek compensation for the increased costs and time needed to address the additional requirements. You must notify the Contracting Officer (or your prime) of the impact of this change and your right to an equitable adjustment, and negotiate the terms before you accept the clause, or risk losing your right to seek compensation.

New DOD procurements and contracts will include the clause. Proactively check whether they trigger clause requirements and factor your compliance costs, and any required waiver or approvals, into proposal preparations and the ultimate contract. Its likely that most companies will need to do something.

You have options. If you would like to understand your requirements or would like assistance in this area, please contact a FortneyScott attorney.

FortneyScott

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Register for FortneyScott's Next Webinar on Wednesday, April 30th

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