The OFCCP Week in Review (WIR) is a simple, fast and direct summary of relevant happenings in the OFCCP regulatory environment, authored by experts John C. Fox and Candee Chambers. In today’s WIR, we cover:
- NLRB Concludes that student teaching assistants are common law employees subject to NLRA
- The USDOL publishes Fair Pay and Safe Workplaces final guidance and acknowledges DirectEmployers’ comments
Tuesday, August 23, 2016: The NLRB Concludes that Student Teaching Assistants, by Whatever Specific Title, are Common Law Employees Subject to the NLRA
The Trustees of Columbia University in the City of New York and Graduate Workers of Columbia – GWC, UAW. Case 02–RC–143012. Apart from the implications of the Columbia University decision for universities and colleges and the potential now for student teaching assistants to unionize and file Unfair Labor Practice Complaints, the decision also has immediate implications for OFCCP. This is because OFCCP, like the NLRB under the National Labor Relations Act (NLRA), determines who is an “employee” pursuant to the Common Law test. Moreover, the NLRA which the National Labor Relations Board enforces, was the font from which the Congress created the enforcement frameworks for Title VII and which President Johnson drew upon in enacting Executive Order 11246.
Accordingly, OFCCP could begin tomorrow to require universities and colleges to include paid student teaching assistants in Affirmative Action Plans and Disparity Analyses and to receive Complaints from student teaching assistants. Moreover, because the NLRB’s decision relies on only a legal interpretation of the Common Law to support its conclusion, similarly OFCCP need NOT undertake Rulemaking (i.e. regulations) to interpret its existing Rules which cover common law employees to sweep student teaching assistants into OFCCP’s definition of covered employees.
The broad scope of the NLRB’s decision is also noteworthy covering, as it does, numerous and various kinds of student teaching assistants engaged in various teaching, research, grading, discussion leader, and student meeting roles paid by either the University where the student is enrolled or via externally funded grants, including at least the following job titles at Columbia:
- Instructional Officers (including Teaching Fellows and Teaching Assistants)
- Graders (including Preceptors and Readers)
- Research Assistants
- Course Assistants
- Research Officers
- Department Research Assistants
Columbia will presumably appeal this decision, especially given that the issue of student teaching assistants as Common Law Employees within the reach of the NLRA has now changed three times in the last three political Presidential Administrations. To avoid inconsistent positions, colleges and universities may find it necessary to resist any OFCCP demands to include student teaching assistants in their AAPs if the institution also decides to resist the NLRB’s decision pending appeal.
Candee Chambers spoke at some great length about OFCCP’s definition of the term “employee” at last year’s National Employment Law Institute Affirmative Action Briefings in Austin, San Francisco, Washington D.C. and Chicago. A copy of Candee’s detailed PowerPoints are available upon request to her.
Thursday August 25, 2016: USDOL Publishes Fair Pay and Safe Workplaces Final Guidance and Acknowledges DirectEmployers’ Comments
The Obama Administration is going out of office, as predicted, “with both guns blazing.” Last Thursday, both the United States Department of Labor and the “FAR Council” (on behalf of all the federal contracting agencies in the Executive Branch of government) simultaneously published “Fair Pay and Safe Workplaces” Final “Guidance” (USDOL) and a Final Rule (FAR Council).
DirectEmployers had earlier filed written Comments with USDOL as to its proposed Guidance challenging the proposal to identify an OFCCP Show Cause Notice as an “Administrative Merits Determination” which bidders on federal contracts would have to report for the three years prior to a federal contract bid. DirectEmployers obviously struck a nerve as USDOL fired back against DirectEmployers’ comment and inked not less than a full one-third of a page in rejecting DirectEmployers’ position in its Final Guidance that Show Cause Notices were too premature and uncertain to require reporting. Here is a link to the full Final Guidance where you may find the reference to DE’s Comments: 81 Federal Register 58654-5858767 at p. 58667 middle column bottom & right column. Here is a cull of the USDOL shout out:
“Another commenter, DirectEmployers Association, stated that a show cause notice generally contains ‘‘alleged violations related to highly technical Action Program drafting and recordkeeping issues, or a failure to engage in adequate outreach and recruitment of women and/or minorities.’’ This commenter asserted that a ‘‘very small minority of the [show cause notices] that OFCCP issues may also contain allegations of unlawful discrimination (typically fewer than in 2 percent of all OFCCP audits).’’ The same commenter also stated that ‘‘routine’’ show cause notices are issued ‘‘prior to . . . completion of the investigatory phase of the audit’’ and ‘‘prior to considering the contractor’s response to the agency’s preliminary investigative conclusions’’ (emphasis in original). According to this commenter, ‘‘oftentimes the alleged violations raised in [a show cause notice] are voluntarily withdrawn by OFCCP,’’ ‘‘are resolved through conciliation, or are later dismissed by an administrative court.’’ The Department retains the OFCCP show cause notice as an administrative merits determination. OFCCP issues a show cause notice when it determines that a contractor has violated one or more of the laws under OFCCP’s jurisdiction. See Federal Contract Compliance Manual, ch 8D01 (Oct. 2014). OFCCP issues fewer than 200 show cause notices per year, and issues them after a substantial process. OFCCP typically issues show cause notices after it has investigated, made findings, issued a notice of violation,⁴⁹ given the contractor an opportunity to respond, considered any response from the contractor, and attempted to resolve the issue through conciliation. OFCCP may issue a show cause notice if a contractor fails, after being requested by OFCCP, to submit the affirmative action plans or other information that it is required by law to maintain. Contrary to the commenter’s assertion, OFCCP gives a contractor multiple chances, including extensions of time, to provide the requested information; and it gives a contractor the opportunity to explain its position before issuing a show cause notice. OFCCP must, if other efforts are unsuccessful, issue show cause notices in those few circumstances when contractors refuse to comply with their legal obligations to provide information. These obligations are crucial to OFCCP’s ability to enforce its laws and investigate potential violations. Indeed, OFCCP cannot determine whether there was in fact unlawful discrimination until it receives the plans or other information that the contractor is required by law to maintain and provide.
Additional information regarding the Fair Pay and Safe Workplaces final guidance and regulations can be found here.
NELI Webinar September 7, 2016: John Fox will team up with Washington D.C. government contracts lawyer Garry Grossman to present a two-hour webinar to discuss the numerous substantive details of the over 1000 pages of preamble and compliance requirements in the Final Guidance and Final Rule on Wednesday, September 7, 2016 which The National Employment Law Institute (NELI) will sponsor. Because of our partnership with nonprofit NELI, DirectEmployers’ Members will enjoy a 30% discount to attend the webinar. You may attend the September 7 webinar for free if you have signed up for any one of NELI’s four October Affirmative Action Briefings.
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 email Candee at firstname.lastname@example.org with your ideas.