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:

 

Tuesday, March 6, 2018: Program Announced to Expedite Employee Payment Errors

The U.S. Department of Labor’s Wage and Hour Division announced the coming of a new employer self-audit program it will pilot for six months. The program aims to expedite payment resolutions to employees by having employers self-audit and resolve basic minimum wage and overtime violations in the absence of either a USDOL Wage-Hour investigation or an employee Complaint.

The Payroll Audit Independent Determination (PAID) program, intends to expedite resolutions of inadvertent overtime and minimum wage violations under the Fair Labor Standards Act. The PAID program hopes that more employees will receive back wages they are owed—faster.  Under the program, employees will receive 100 percent of the back wages paid, without having to pay any litigation expenses, attorneys’ fees, or other costs that may apply to private actions.

Start date is to be determined. You can sign up for alerts here.

 

Wednesday, March 7, 2018: Transitioning Transgender Protected

In the first-of-its-kind, a decision by the U.S. Court of Appeals for the Sixth Circuit (Cincinnati) ruled that Title VII protects employees from adverse action because of their sex when transitioning sex from one gender to the other (male to female or female to male). This is the second significant win in 10 days for LGBT workers on issues that most likely will go to the U.S. Supreme Court.

Here is what happened:

  • S. Court of Appeals: The Sixth Circuit (Kentucky, Michigan, Ohio, Tennessee)
  • The Case: EEOC on behalf of Aimee Stephens v. R.G. & G.R. Harris Funeral Homes Inc. The American Civil Liberties Union intervened on the plaintiff’s behalf.
  • The Question: Whether Title VII of the 1964 Civil Rights Act’s covers transgender workers in transition.
  • The Decision: Reversed a lower court, granting judgment to the EEOC (so yes, transgender status is)
    • The Court Held:
      1. the funeral home engaged in unlawful discrimination against Stephens on the basis of her sex;
      2. the funeral home did not establish that applying Title VII’s proscriptions against sex discrimination to the employer would substantially burden Rost’s (the owner) religious exercise, and therefore the employer was not entitled to a defense under RFRA (Religious Freedom Restoration Act😉
      3. even if Rost’s religious exercise were substantially burdened, the EEOC established that enforcing Title VII is the least restrictive means of furthering the government’s compelling interest in eradicating workplace discrimination against Stephens; and
      4. the EEOC may bring a discriminatory-clothing-allowance claim in this case because such an investigation into the employer’s clothing-allowance policy was reasonably expected to grow out of the original charge of sex discrimination that Stephens submitted to the EEOC.

You may recall that the U.S. Court of Appeals for the Second Circuit ruled Feb. 26, 2018 that discrimination against a worker who is gay, lesbian, or bisexual is also covered by Title VII and considered discrimination based on sex. See OFCCP Week In Review: March 5, 2018.

Although the issues are closely connected, most courts are handling them as distinct legal questions.

 

Friday, March 9, 2018: Latest Employment Situation Numbers Released

The Bureau of Labor Statistics released the most recent “Employment Situation.” Check out the summary here, but of particular interest is that total nonfarm payroll employment increased by 313,000 in February. Employment rose in construction, retail trade, professional and business services, manufacturing, financial activities, and mining. February Statistics:

The Kessler Foundation released the nTIde (National Trends in Disability Employment) monthly report based on the BLS statistics. The update points out that by addressing policies that hinder employment opportunities, state-level initiatives are making progress toward greater inclusion of people with disabilities in the workforce. Gains for job seekers with disabilities moved higher for the 23rd consecutive month. In February 2018, among workers ages 16-64, the 4,623,000 workers with disabilities represented 3.2 percent of the total 145,020,000 workers in the U.S.

 

Friday, March 9, 2018: Reminder – March is Women’s History Month

In 1987, the U.S. Congress designated March as National Women’s History Month. This creates a special opportunity in our schools, our workplaces, and our communities to recognize and celebrate the often-overlooked achievements of American women. Each year there is a special theme and women whose lives exemplify that theme are selected as National Honorees. This year’s theme:

 NEVERTHELESS SHE PERSISTED:
Honoring Women Who Fight All Forms
of Discrimination Against Women

Victoria Lipnic, Acting Chair of the EEOC, sent out a statement on March 9, 2018, reminding us about Women’s history month and highlighting the new Harriet Tubman Underground Railroad Visitor Center in Dorchester County, Maryland. Read more about this year’s National Women’s History Month theme and honorees here.


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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Jennifer Polcer
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