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FortneyScott’s COVID-19 Weekly Briefings and Employer Help Desk

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.

New Nominations to EEOC and NLRB

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

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

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

The EEOC’s Component 2 Has Been Closed

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

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

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

House Passes Sweeping Pro-Labor Bill

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

The main provisions of the PRO Act would:

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

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

OFCCP Director Leen to be Nominated for OPM Inspector General

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

OFCCP Issues Technical Assistance Guide for Educational Institutions

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

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

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

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

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

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

EEO-1 Component 2 Deadline Extended

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

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

DOL Issues Long-Anticipated Update to Overtime Rule

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

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

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

Other significant components of the final rule include:

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

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

Next Steps

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

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

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