OFCCP Week In Review: July 9, 2018

Tuesday, July 3, 2018: Joint-Employer Issue Looking For A Venue To Decide Its Future

The Issue

The Joint-employer standard. We last broke it down in March. The case is back in the headlines as oral arguments were heard before the DC Circuit Court of Appeals.

The Recent Scoop

Browning-Ferris Industries urged a D.C. Circuit three-judge panel in oral argument not to review an Obama-era decision from the National Labor Relations Board (“NLRB”) against the company expanding the joint employer standard that controls when multiple companies can be deemed jointly responsible for the employees of the other company.

 Rather, Browning-Ferris Industries urged the Court to remand to the NLRB the pending dispute about the joint employer standard.

Significantly, the current Trump dominated NLRB plans to propose rulemaking to soon address the issue.

The Bottom Line

Browning-Ferris obviously feels comfortable that it will get a better reception this time around before the Trump NLRB than it did before the Obama NLRB. Moreover, if not, Browning-Ferris can nonetheless appeal the Trump NLRB’s decision to the DC Circuit and get a “second bite at the apple.”

Tuesday, July 3, 2018: Department of Justice Rescinds 24 Guidance Documents

The U.S. Department of Justice rescinded 24 guidance documents in accordance with President Trump’s Executive Order 13777, the Regulatory Reform Agenda.

Attorney Jeff Sessions stated:

“In the Trump administration, we are restoring the rule of law. That’s why in November I banned this practice at the Department and we began rescinding guidance documents that were issued improperly or that were simply inconsistent with current law.”

One of the documents rescinded includes the May 6, 2014 “Dear Colleague Letter on the Supreme Court Ruling in Shuette v Coalition to Defend Affirmative Action.”

This guidance letter supported the case and recognized using race as a factor to reach diversity goals. The opening paragraph states:

“We are writing to confirm that the decision of the United States Supreme Court issued on April 22, 2014 in Schuette v. Coalition to Defend Affirmative Action, et al., leaves intact the Court’s prior holdings recognizing that institutions of higher education and elementary and secondary schools may use all legally permissible methods to achieve their diversity goals. These include, absent any restrictions in state law, appropriately tailored programs that consider the race of individual applicants as one of several factors in an individualized process to achieve the educational benefits that flow from a diverse student body.”