OFCCP Week in Review: July 3, 2017

• Why did employers like them? They could write into W-H, get advice about a specific wage or overtime issue, follow that advice and then offer compliance with the opinion as a defense to any claims of violation.
• More on opinion Letters: (https://www.reference.com/government-politics/legal-opinion-letter-78eb53336d229455)

• Next step is for OMB to greenlight W-H’s request. W-H would then publish its request for comment to the public in the Federal Register. No timeline reported.
• Meanwhile, the Obama OT Rule (narrowing the Fair Labor Standards Act’s exemptions for OT) remains enjoined by an injunction a federal court imposed in late November 2016 just prior to the date the Obama Rule was scheduled to become law. (http://fortune.com/2016/11/23/federal-judge-obama-administration-overtime-rule)
• On June 30, 2017, the USDOL filed a Reply brief in the US Court of Appeals for the Fifth Circuit (New Orleans) (where the litigation involving the Obama exemptions/OT Rule is now pending) declaring openly the USDOL’s intent to revise through new Rulemaking the dollar value of the salary necessary to qualify for exemption from OT:
  • “The Department requests that this Court not address the validity of the specific salary level set by the 2016 final rule ($913 per week), which the Department intends to revisit through new rulemaking.” http://src.bna.com/qoP  (see page 23).

Going to the top shelf and drawing from the “brain trust”, Trump sent to the Senate the nominations of Janet Dhillon to Chair the EEOC and Eric Dreiband to be the Director of the US Department of Justice Civil Rights Division as previously rumored. (See OFCCP Week in Review: May 8, 2017)

Civil Rights critics immediately lodged criticisms of both candidates, especially of Dreiband who has defended many prominent companies against discrimination claims.

Janet Dhillon to Chair the EEOC

She’s a superstar!

• Fun facts on Dhillon:
  • First in her class at UCLA Law School (one of the best in the nation). Former Skadden, Arps, Slate, Meagher & Flom lawyer (one of the nation’s best law firms). She is also a former General Counsel of US Airways and J.C. Penney Co, and is currently the GC at Burlington Stores. (https://www.linkedin.com/in/janet-dhillon-65797a15)
  • Her husband is a superstar! Trump appointed him, Uttam Dhillon, in January 2017 as a Special Assistant to The President and Deputy Counsel in the White House Counsel’s Office. (https://www.linkedin.com/in/uttamdhillon) Bottom line: she is going to have access and influence at the White House!
• If confirmed:
  • Her five-year EEOC Commissioner term would end July 1, 2022.
  • The acting EEOC Chair, Victoria Lipnic, would relinquish her role. https://www.linkedin.com/in/vicki-lipnic-6012228
  • Her appointment to the EEOC would bring the Commissioner count to two Republicans and two Democrats with one Commission seat remaining vacant.

Eric Dreiband to Direct USDOJ Office of Civil Rights

Dreiband would be the 15^th Jones Day lawyer to join the Trump Administration (https://www.linkedin.com/in/eric-dreiband-72633a15) The White House Counsel, Donald McGahn, (The President’s lawyer) is a former Jones Day partner. (https://www.linkedin.com/in/don-mcgahn-0a66105)

• Fun facts on Dreiband:
  • He is a native of Indianapolis and Fort Wayne, graduated from Princeton in 1986 where, towering at 6’4”, was an offensive lineman on the football team named to the All-Ivy League second team.
  • He was earlier both the Deputy Administrator of USDOL Wage-Hour Division and also the General Counsel of the EEOC (2003-2007) during the George W. Bush Administration (the son).
  • Apart from earning a law degree from Northwestern University in 1992, where he graduated with honors and was the Articles Editor of the Law Review, Dreiband also earned a Master’s Degree in 1989 from Harvard in Theological Studies, with a concentration in ethics and public policy.