OFCCP Week in Review: July 3, 2017

Week In Review New

OFCCP Week in Review: July 3, 2017

OFCCP Week in Review, Authored by John C. Fox, Candee Chambers & Jennifer PolcerThe 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, Candee Chambers and Jennifer Polcer. In today’s edition they discuss:

  • The return of Opinion Letters as announced by the USDOL’s Wage-Hour (W-H) Division
  • OMB received formal “Request for Information” regarding the controversial Obama Administration Overtime Rule from the USDOL’s Wage-Hour (W-H) Division
  • Trump finally nominated his Civil Rights team

USDOL Wage-Hour (W-H): Announced the Return of Opinion Letters

Tuesday, June 27, 2017
Opinion letters were abolished under Obama.

 

USDOL Wage-Hour (W-H): Sent OMB a Formal “Request for Information” Regarding the Controversial Obama Administration Overtime Rule

Tuesday, June 27, 2017
This is the first step and signal that USDOL is planning to ask the public for comments on the OT Rule and then withdraw or modify it.

  • 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).

 

Trump Makes His Move; Finally Nominated his Civil Rights Team

Thursday, June 29, 2017
Reacting to continued criticism that he has been slow to fill Labor and Civil Rights positions in his new administration, President Trump aimed a double-barreled shotgun blast at critics by nominating his Civil Rights team.

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 15th 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.

 


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 Jennifer at jpolcer@directemployers.org with your ideas.

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About the Author

Jennifer PolcerJennifer Polcer, PHR, SHRM-CP, is the VP of Compliance at DirectEmployers Association. Jennifer brings over 15 years of HR experience to the Association, as well as a skilled background in both OFCCP compliance and employment law analysis. In her current role, Jennifer looks to be a resource to Members providing guidance on compliance matters related to Affirmative Action, audit advocacy and additional education surrounding government contractor obligations. Along with her dedicated team, Jennifer manages the relationship with the National Association of State Workforce Agencies (NASWA), and co-manages the National Labor Exchange (NLx)—the nation’s first electronic labor exchange developed as a collaborative effort between employers and state workforce agencies.View all posts by Jennifer Polcer »

(2) Comments

  1. OFCCP Week in Review: July 24, 2017 | DirectEmployers AssociationJul 24, 2017

    […] The Wage-Hour Division is proposing an “information collection” (i.e. request for comment from the public) with respect to the controversial Obama Administration so-called “overtime” Rule which raised dramatically the minimum salaries exempt professionals had to earn to meet the “salaried basis” test. (See OFCCP Week in Review: July 3, 2017) […]

  2. OFCCP Week in Review: August 7, 2017 | DirectEmployers AssociationAug 07, 2017

    […] EEOC seats are being filled. As highlighted in the OFCCP Week in Review: July 3, 2017, Janet Dhillon has been nominated as the new EEOC Chair, pending Senate approval. President Trump […]