OFCCP Week in Review: January 2, 2018

James has been a member of Heritage’s Board of Trustees since 2005. She served as Director of the Office of Personnel Management under President George W. Bush and in Ronald Reagan’s Department of Health and Human Services. She also served as Virginia’s Secretary of Health and Human Resources and as a member of the State Board of Education.

Significance? Well, an interesting twist – the former OFCCP Director Charles James, who served during the George W. Bush administration (#43 – the son), is married to Ms. James.

The full press release can be found here.

• Kate O’Scannlain, Solicitor for the Department of Labor
• Preston Rutledge, Assistant Secretary of Labor to lead the Employee Benefits Security Administration
• Patrick Pizzella, Deputy Labor Secretary
• Janet Dhillon, Chair of the EEOC

What about the others? Well, the Senate rules require the President to restart the process for nominees who didn’t get a Senate vote by the end of the year. That means renominating President Trump’s picks for open posts and restarting the committee vetting process before those nominees can move forward to the Senate for a full-floor vote.

How we got here:

• In Browning-Ferris Industries of California, Inc., the NLRB held in 2015 that a recycling company and a staffing service could be considered joint employers under the National Labor Relations Act even if they only shared indirect or potential control over a group of employees. See ‘New “codetermination” legal standard for joint employment is set’ OFCCP Week in Review: October 8, 2015.
• Browning-Ferris asked the D.C. Circuit to review and reverse the decision. The court heard oral arguments in March but had not issued any ruling in the case.
• On December 14, 2017, in a 3-2 decision, the National Labor Relations Board overruled the Board’s 2015 decision in Browning-Ferris Industries and returned to the pre–Browning-Ferris standard that governed joint-employer liability. See OFCCP Week in Review: December 18, 2017.
• Earlier this month, the NLRB asked the circuit court to remand the case in light of the board’s Dec. 14 decision. The court agreed and remanded the case on December 22, 2017.

In Hy-Brand, the NLRB ruled 3-2 to revert to a joint employment test based on traditional principles the board followed before its Browning-Ferris decision.

Under the traditional test affirmed in Hy-Brand, the board will require a showing of direct and immediate control to support a finding that multiple entities are joint employers.

Kaplan was confirmed by the Senate in August for an appointment to the five-seat board that will expire in August 2020. President Trump designated Kaplan to serve as Chairman after Philip A. Miscimarra (R), the former Chairman, left the board when his term expired on Dec. 16.

Kaplan, who earned a bachelor’s degree from Cornell University and a law degree in 2006 from Washington University in St. Louis, began working in the Labor Department’s Office of Labor-Management Standards in 2007. He moved to the House Oversight and Government Reform Committee in 2009 and served as a staff lawyer for two years. Kaplan worked on oversight and investigations involving the NLRB, as well as the DOL and other agencies.

Kaplan served as Chief Counsel to the Chairman of the Occupational Safety and Health Review Commission before his appointment to the labor board.

There is one vacancy left to fill.

The Board now has four members: Republicans Kaplan and William J. Emanuel (See OFCCP Week in Review: October 2, 2017) and Democrats Mark Gaston Pearce and Lauren McFerran.

While appointments to the Board require Senate confirmation, the President designates which Board Member serves as Chairman or Acting Chairman of the agency.

The NLRB Chairman has the same authority as other Board Members to vote on decisions in unfair labor practice cases and union representation proceedings. The Chairman also handles administrative functions for the board and shares with the NLRB’s General Counsel (See OFCCP Week in Review: November 13, 2017) some responsibilities for management of the agency.

• Prohibits companies from writing off settlements related to sexual harassment complaints.
• Includes a provision offering tax incentives for companies that provide paid family and medical leave.
• Reels in some tax deductions for companies offering fringe benefits often used to recruit and retain workers.
• Reduces the amount a company can deduct related to costs for providing free food to employees.
• Removes the tax incentives for businesses to provide commuter and parking benefits for employees.

Congressional Republicans have touted it as a tax reform package to benefit the middle class, but Democrats have criticized the legislation, labeling it a remake of “trickle-down economics.” No congressional Democrats voted in favor of the bill, which also includes altering individual and corporate tax rates and deductions.

• Stop inquiring applicants about their previous pay.
  • January 1st, California (San Francisco has had its own rules) joins Delaware, Massachusetts, Oregon, New York City, Philadelphia, New Orleans, Pittsburgh and Puerto Rico. Whether you make this list or not, it’s time to start thinking about this question and how it fits into your company’s overall compensation plan. Google, Facebook, and Cisco are among those who have stopped asking altogether, regardless of location. Cisco is even looking to expand the practice globally.
• Stop inquiring applicants about their previous convictions.
  • January 1st, California becomes the 10th state to require private-sector employers to “Ban the Box.” Nationwide, 29 states and over 150 cities and counties have adopted ban-the-box laws and in 2013, California passed a similar law that applied to state agencies, cities and counties. Ten states and 15 major cities have adopted ban-the-box hiring laws that cover both public- and private-sector employers.
• Stop thinking “Sexual harassment isn’t a problem here. We don’t need to do training.” See OFCCP Week in Review: December 18, 2017 for links to the increasing “me too” movement sweeping the nation.
  • January 1st, California adds the requirement of training on gender identity, gender expression and sexual orientation harassment. S.B. 396