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, Candee Chambers and Jennifer Polcer. In today’s edition, they discuss:
- DOJ appealed permanent injunction on Overtime Rule
- Federal Paid Leave Bill proposed with state pre-emption
- Draft Strategic Plan released by USDOL
DOJ Appealed Permanent Injunction on Overtime Rule
|Monday, October 30, 2017|
|The Department of Justice, on behalf of the Department of Labor, filed a notice to appeal a permanent injunction against the Obama administration’s overtime rule. The appeal did not detail the administration’s legal reasoning. It is widely assumed that Secretary Acosta wishes to appeal ONLY that portion of the lower court’s injunction which seemed to have struck down the right of the USDOL Wage-Hour Division to set a salary level for exemption from overtime for Executives. Secretary Acosta is on record of having agreed with the Court’s judgment that the precise salary level the Obama Administration had proposed was far too high. Indeed, USDOL has sought comment from the public as to what the proper salary level should be to trigger the Executive exemption from overtime.
Finalized in 2016, the rule doubled to $47,476 the salary threshold under which virtually all workers are guaranteed time-and-a-half pay if they work more than 40 hours in a given week. It never took effect though, because a federal judge issued a preliminary injunction against it. In August, that same judge made the injunction permanent.
Summary of the Litigation by the DOL can be found here.
Federal Paid Leave Bill Proposed with State Pre-emption
|Thursday, November 2, 2017|
|Three Republican members of the House of Representatives proposed a federal paid leave bill that would exempt employers from state and local paid leave laws if they give workers scheduling flexibility and a certain number of days off.
The Workflex in the 21st Century Act, introduced by Rep. Mimi Walters, R-Calif., and co-sponsored by Reps. Elise Stefanik, R-N.Y., and Cathy McMorris Rodgers, R-Wash., requires businesses to offer one of six flexible scheduling options to qualify for the federal alternative, which calls for between 12 and 20 days of “compensable leave.”
The bill, which amends the Employee Retirement Income Security Act, sets leave minimums based on the size of an employer and an employee’s length of service.
The Society for Human Resources Management President and CEO Hank Jackson, whose group worked on the bill, said in a statement that it, “addresses employers’ concerns over navigating a myriad of complex and confusing state and local paid leave mandates while answering employees’ call for flexibility on the job.”
Draft Strategic Plan Released by USDOL
|Friday, November 3, 2017|
|The United States Department of Labor released a Draft Strategic Plan for FY2018-2022, including as to sub- agencies. The Draft Strategic Plan emphasizes new job creation in America and was released to coincide with the USDOL Bureau of Labor Statistics history-making announcements on Friday about the surging US economy:
USDOL Secretary R. Alexander Acosta released his 38-page draft USDOL “Fiscal Years 2018-2022 Strategic Plan” starting with these words emphasizing job growth:
The Secretary’s Message preceding the Strategic Plan noted pointedly that America was facing a “Skills Gap” with “more than six million job seekers and more than six million job openings in our nation”. “Yet, we have a ‘skills gap’ – the difference between skills job creators need and the skills job seekers offer, leaving too many jobs open.”
There are five things noteworthy about the USDOL Draft Strategic Plan:
“Strong Enforcement and Emphasizing High-Impact Projects”
While emphasizing the virtues of voluntary compliance and compliance assistance, OFCCP explains this seemingly important strategic objective in a single sentence: “OFCCP will also emphasize systemic and high-impact cases to leverage the deterrence value”.
OFCCP does not define “high-impact,” but the agency is nonetheless making reference to the Obama OFCCP strategy of auditing fewer contractors while trying to find larger systemic cases by way of “deep dig” investigations into contractor data which “grind fine and slow”, creating both 3-4 year long audit runways and a “winners and losers” market composed of those few Government Contractors in audit in great distress, while the remaining 99% of Government Contractors which are not in audit wonder what all the fuss is about.
“Expand Compliance Assistance and Stakeholder Engagement”
The mainstay of every Republican Administration is an increase in OFCCP hours spent providing “technical assistance” to the Government Contractor community. However, it may have escaped the attention of Secretary Acosta’s executive team that half of OFCCP’s technical assistance promise, as stated in the Strategic Plan for OFCCP, relates to controversial initiatives taken right out of the Obama OFCCP playbook and which are antithetical to the interests of Government Contractors:
Secretary Acosta gave no indication as to why he was publishing a “Draft” Strategic Plan rather than a Final Plan.
Special Note: The sudden and unexpected surge in US worker productivity, an economic indicator very important to increased wages and higher standards of living, has now unleashed in Washington D.C. renewed debate about the size of the federal government and whether it should be further shrunk since many economic pundits credit the rise in productivity with the current ongoing reduction in federal regulations. OFCCP, and its budget and enforcement program, is caught up with many other agencies in that larger debate now unfolding with special intensity following BLS’ Friday jobs and productivity reports.
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 firstname.lastname@example.org with your ideas.
John C. Fox, Esq. is President and Partner at Fox, Wang & Morgan P.C. where he represents companies and tries cases in state and federal courts throughout the United States. Mr. Fox has extensive trial experience, having spent more than 300 days in trial. Mr. Fox was also lead trial counsel in the first of the six wage-hour class actions known to have been tried in California and was lead trial counsel in what are believed to have been the two largest disability law suits in the United States. He is an across-the-board employment lawyer representing management nationwide. Full Bio »