OFCCP Week In Review: March 5, 2018

by | Mar 5, 2018 | Week In Review (WIR)

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:

 

 

Joint-Employer Standard – Back to Browning-Ferris Test

Monday, February 26, 2018
The National Labor Relations Board issued a Decision and Order to vacate its recent Hy-Brand joint-employer ruling because Board Member, Bill Emanuel, improperly participated in the case.

The improper participation arises because Emanuel’s former law firm represents Leadpoint, a party in Browning-Ferris. Executive Order 13770, the President’s ethics pledge, prohibits an appointee from participating in a “particular matter involving specific parties” when the appointee’s former employer or client is a party or represents a party. Although the two cases started out as two distinct and separate matters, the manner in which the former Chairman marshaled Hy-Brand through the Board’s deliberative process effectively resulted in a consolidation of the two matters into one “particular matter involving specific parties.”

How we got here:

Date Event Outcome
3/01/18 The NLRB filed a motion to the D.C Circuit Court of Appeals to reopen Browning-Ferris Industries and resume the Court’s review of the 2015 Board decision. To be determined. The appeals court can uphold Browning-Ferris or reject it, but it may also hold the NLRB ruling was merely one possible interpretation of the NLRA, leaving the NLRB room to develop and adopt another reading of the law.
02/26/18 Hy-Brand decision vacated, due to Emanuel’s participation. Revert to the Browning-Ferris decision, the expanded test for joint-employer.
12/19/17 The NLRB asked the D.C. Circuit court to remand Browning-Ferris so the board could take appropriate action in light of the new joint employer ruling. The court granted the request and sent Browning-Ferris back to the board, but Hy-Brand unraveled within a few weeks.
12/14/17 Browning-Ferris decision overruled in the Hy-Brand joint-employer case.

 

Note: Now a Republican-majority NLRB.

 A return to a position that multiple entities can be joint employers of a group of employees only if each has exercised direct and immediate control over a group of employees.

See OFCCP Week in Review: December 18, 2017
03/09/17 Browning-Ferris petitioned for review to the D.C. Circuit Court of Appeals. The case was fully briefed, argued and submitted, but no decision on the merits issued.
8/27/15

 

 

 A 3-2 decision of the Browning-Ferris Industries case.

 

Note: Democratic-majority NLRB

 The NLRB held that multiple organizations could be joint employers if they exercise indirect control over workers. That decision:

  • Drew criticism from employers and business groups that the NLRB standard created confusion about the bargaining obligations and business relationships of franchisers and franchisees, contractors and subcontractors, and other business entities.
  • Sparked criticism of the agency and a vigorous effort to tighten the joint employment standard in Congress.

See OFCCP Week in Review: September 8, 2015

The bottom line, for today, is:

The 2015 Browning-Ferris test for determining joint-employment is once again the law of the land. This “test” means that two or more entities are joint-employers of a single workforce if

  1. they are both employers within the meaning of the common law;
  2. they share or codetermine those matters governing the essential terms and conditions of employment.

In evaluating whether an employer possesses sufficient control over employees to qualify as a joint-employer, the Board will – among other factors – consider whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary, or whether it has reserved the authority to do so.

Another resource when tackling the “joint-employer” conundrum is the DOL’s Wage and Hour Division Fact Sheet #35 Joint Employment Under the Fair Labor Standards Act (FLSA) and Migrant and Seasonal Agricultural Worker Protection Act (MSPA).

 

 

2nd Court of Appeals Ruled LGBTQ Workers ARE Protected Under Title VII

Monday, February 26, 2018
In a 10-3 decision, the Second Circuit Court of Appeals (New York, Connecticut, Vermont), reversed its ruling and now takes the stance that discrimination on the basis of sexual orientation violates Title VII the Civil Rights Act of 1964.
The ruling came in the case of the late Donald Zarda, a New York skydiving instructor who claimed he was fired from his job because he told a client he was gay. Lambda Legal filed a friend-of-the-court brief in support of Zarda’ s estate and argued the case before the Second Circuit.Significance?
A split in the courts. It is likely that the Supreme Court ultimately will have to rule on the issue.How we got here:

Date Court of Appeals Sexual Orientation IS Covered under Title VII Sexual Orientation NOT Covered under Title VII
2/26/18 (Reversal)

 

 2nd Circuit Zarda v. Altitude Express, Inc.
7/7/17 (Reversal)

 

 7th Circuit Hively v. Ivy Tech Community College
7/26/17 The DOJ takes the stance sexual orientation is NOT sex discrimination under Title VII.

Zarda v. Altitude Express, Inc.
4/18/17

 

 2nd Circuit Zarda v. Altitude Express, Inc.

 
12/11/17 The Supreme Court announced it would not resolve the split among the appeals courts.
3/10/17

 

 11th Circuit Evans v. Georgia Regional Hospital; Moss, et al.

 See OFCCP Week in Review March 13, 2017
7/28/16

 

 7th Circuit   Hively v. Ivy Tech

Community College
7/15/15 The EEOC takes the stance that sexual orientation IS sex discrimination under Title VII.

David Baldwin v. Dep’t of Transportation

 

Anti-Harassment Training Act for Federal Contractor Introduced

Monday, February 26, 2018
Rep. Nanette Diaz Barragán introduced the Federal Contractor Anti-Harassment Training Act, which would require contractors to complete annual anti-harassment and anti-discrimination training.  If resources are a challenge, the legislation would allow contractors to access employee training resources that federal agencies provide to their employees.

This Act was introduced on the same day that the Department of Justice (DOJ) launched the Sexual Harassment in the Workplace Initiative (SHWI). This initiative focuses on workplace harassment in the public sector. The first enforcement action brought under the SHWI will be a lawsuit against the City of Houston, alleging that the Houston Fire Department (HFD) discriminated against two female firefighters on the basis of sex, in violation of Title VII, when it allowed them to be subjected to sexual harassment in the workplace.

 

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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