The “OFCCP Week in Review” is a simple, fast and direct summary of relevant happenings in the OFCCP regulatory environment published every Monday. Here are this week’s developments:
July 14, 2015: DOL and FAR Council Extend Comment Dates on Labor Law Blacklisting Proposals: The public comment deadline dates for both proposals now move from July 27, 2015 to August 11, 2015.
Acting in concert, both the US Department of Labor and the FAR Council (DoD, GSA & NASA) have published notices extending the deadlines for the public to comment on their respective proposed Rules to implement President Obama’s controversial Fair Pay and Safe Workplaces Executive Order 13673. The USDOL Extension concerns its Proposed Guidance which it published on May 28, 2015. The FAR Council Extension concerns its May 28, 2015 Proposed Rule to implement EO 13673.
See DirectEmployers’ Week-in-Review report and DirectEmployers’ Recent Significant OFCCP Developments Webinar for more background on both of these very important Proposed Rules.
At the request of our Members, DirectEmployers (DE) will submit written comments to the USDOL’s and FAR Council’s proposed Fair Pay and Safe Workplaces Rules. To assist with the drafting of those comments and to faithfully represent our Members’ views to OFCCP and The FAR Council, we have drafted the below abbreviated “check the box” 13 question survey. It takes only 5 minutes to complete and your input is extremely valuable. Take the survey at: https://www.surveymonkey.com/r/SMWQ8L9
July 15, 2015: US DOL Wage and Hour Division Administrator Issued Interpretation No. 2015-1 concluding that the FLSA’s Definition of the Term “Employee” includes virtually all workers. Click here for the Administrator’s Interpretation 2015-1: The Application of the Fair Labor Standards Act’s “Suffer or Permit” Standard in the Identification of Employees Who Are Misclassified as Independent Contractors. This interpretation, the first in 2015, was issued today from The U.S. Department of Labor’s Wage and Hour Division.
It is important for DE Members to recall that as to OFCCP compliance obligations, the Fair Labor Standards Act’s “Economic Realities” legal test used to determine whether a worker is covered by the FLSA is NOT the legal test for the definition of the term “employee” as used in OFCCP’s three programs. Rather, Executive Order 11246, Section 503 and Section 4212 rely on the “Common Law Test” as John C. Fox and Candee Chambers discussed at some length in a DE “Who Does OFCCP Think is an Employee?” Webinar devoted exclusively to this topic on February 11, 2015.
NOTE: Candee, John and Rosemarie Falcone from Entergy Corporation in New Orleans will be discussing the “Who is An Employee” topic at some length at the upcoming four National Employment Law Institute (NELI) annual (one-day) Affirmative Action Workshops and (1 ½ day) Affirmative Action Briefing this October in San Francisco, Chicago, Austin and Washington D.C. DE Members enjoy a special Member’s Discount of 30% off of NELI’s Affirmative Action Workshop and Affirmative Action Briefing seminar rates.
July 16, 2015: OFCCP IS SEEKING OMB APPROVAL OF THE FAAP PROGRAM, WITHOUT CHANGE TO THE PROGRAM. OFCCP published a Notice in the Federal Register on this date requesting comments from the public about its every three-year “Information Collection Request” (“ICR”) to renew its 2012 approval from the Office of Management and Budget (“OMB”) of OFCCP’s Functional Affirmative Action Program (“FAAP”). OFCCP’s ICR is OMB Control Number 1250-0006. OMB’s renewal/approval of OFCCP’s ICR would allow OFCCP to continue to approve federal contractor use of FAAPs, when appropriate, to satisfy their Affirmative Action Program obligations. Currently, 91 federal contractors have FAAPs OFCCP has approved or is in the process of reviewing/approving. This OMB renewal/approval process is routine pursuant to OMB’s Paperwork Reduction Act (“PRA”) approval authority. The PRA allows and requires OMB to review and approve all data collections of the federal agencies which the President controls in the Executive Branch and which affect 10 or more members of the public. (OMB typically and generally exercises its PRA approval authority in 3-year cycles over “paperwork” affecting OFCCP stakeholders). The public Comment Period ends at midnight on September 14, 2015.
THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.
Reminder: If you have specific OFCCP compliance questions and/or concerns or wish to offer suggestions about future topics for the OFCCP Week In Review, please contact your membership representative at 866-268-6206 (for DirectEmployers Association Members), or send an email to Candee Chambers at candee@directemployers.org with your ideas.
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