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:
John C. Fox and Candee Chambers

August 27, 2015: Browning-Ferris Industries (“BFI”) of California, Inc. et al, and Sanitary Truck Drivers and Helpers Local 350, International Brotherhood of Teamsters: new “codetermination” legal standard for joint employment. This is an NLRB decision which has restated and re-set the legal standard for joint-employment under the National Labor Relations Act. The decision is of importance to federal contractors because the OFCCP test for joint-employment mirrors that of the National Labor Relations Act which served as the font for both Title VII of the 1964 Civil rights Act and Executive Order 11246. Both OFCCP and the NLRB, use for example, the common law test of employment which finds employment to exist if the employer “controls” or has the “right to control” the work of the worker. The Browning-Ferris decision has great potential to affect OFCCP’s enforcement of contractor relationships with staffing agencies:

“The Board (meaning the National Labor Relations Board) may find that two or more entities are joint employers of a single work force it they are both employers within the meaning of the common law, and if they share or codetermine those matters governing the essential terms and conditions of employment. In evaluating the allocation and exercise of control in the workplace, we will consider the various ways in which joint employers may ‘share’ control over terms and conditions of employment or ‘codetermine’ them… .”

In the BFI case, the NLRB reversed the decision of the NLRB Regional Director in Northern California that BFI (a waste recycler) and a staffing agency (Leadpoint Business Services) BFI hired to sort recyclable material inside its waste processing facility in Oakland were NOT joint employers of Leadpoint’s employees. The Board found joint-employment of Leadpoint’s employees even though Leadpoint had multiple onsite supervisors at BFI and who supervised, hired, fired, disciplined and paid Leadpoint’s employees but pursuant to general limitations and general protocols BFI prescribed in its service contract with Leadpoint (as most host companies do vis-à-vis their staffing companies.)

NOTE: Both Candee Chambers and John Fox are scheduled to discuss at some length the common law test of employment and the new BFI “codetermination” test of joint employment at the National Employment Law Institute’s Affirmative Action Briefings in October around the country.

September 4, 2015: Veterans’ Unemployment Drops to 4.2%. Amid an expanding economy, federal contractor focus on recruiting protected veterans and the continued shrinkage of armed forces personnel, veterans unemployment dropped in August to a mere 4.2%….a drop of 8/10ths of one percentage point from a year ago this time and a full two percentage points down from August 2013 when veteran unemployment was 6.2%. NOTE: 4% unemployment is “full employment” in America where 4% of Americans are in the process of changing jobs each week when the Bureau of Labor Statistics takes its unemployment “snapshot” (which transition unemployment economists call “structural unemployment”). Happily, as a result, very few protected veterans are currently unemployed.

The drop of the veterans’ unemployment rate does not relieve federal contractors of their continuing regulatory duty to recruit and undertake outreach to protected veterans pursuant to OFCCP’s VEVRAA regulations nor does it mean OFCCP’s 7% “Hiring Benchmark” now shrinks to 4.2% (The “Hiring Benchmark” is OFCCP’s estimate of the percentage of protected veterans in the workforce and on the unemployment rolls available to contractors to employ, while the unemployment percentage merely records the percentage of the unemployed who are veterans (almost all of whom these days are in fact “protected veterans”). What the 4.2% unemployment percentage implies is that contractors will increasingly be hiring protected veterans from each other, rather than from the rolls of the unemployed.

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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John C. Fox
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