OFCCP Week In Review: July 23, 2018

by | Jul 23, 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:

 

Wednesday, July 18, 2018: NASWA Veterans Conference – Record Attendance

Among a record-breaking crowd of over 500 attendees representing 48 states and the District of Columbia, the National Association of State Workforce Agencies (NASWA) kicked off its 5th annual Veterans Conference, “Serving those who have Served,” at the Grand Hyatt in Washington DC. Twitter hashtag #NASWAVETS18.

Green Beret Commander, Mark Nutsch, walked us through his tumultuous post-9-11 combat mission to fight the Taliban. The Horse Soldiers, featured in the book and movie, “12 Strong”, are nothing less than heroes in every sense of the word. It was an honor to be in Commander Nutsch’s presence and to hear firsthand the mission he and his team endured on our behalf. DirectEmployers was proud to be the sponsor for Mark Nutsch.

Still swirling from the impact of Commander Nutsch’s story, day three rocked us again with the heroic story of combat both on and off the field by Major Mary Jennings Hegar. An Air National Guard officer, Major Hegar re-lived her heroic mission as she was shot down on a Medevac mission in Afghanistan. She went on to tell us of her historic efforts to convince the U.S. government to allow women to serve openly on the front lines. In Hegar v Mattis, Major Hegar, along with the American Civil Liberties Union (ACLU), lead the fight to repeal the Combat Exclusion Policy which forbids women from being in a direct combat mission. A hero both on and off the battlefield, her story will also soon be a major motion picture and is currently captured in the book, “Shoot Like a Girl.” Major Hegar’s presentation was sponsored by Amazon.

As if these two inspiring and heroic stories were not enough, once again, the NASWA Veterans Conference was packed with amazing breakout sessions. Information shared included endless amounts of education, resources and best practices by employers doing exceptional work in the Veteran Employment space. As always, there was priceless networking with professionals working in all fields to help serve our Veterans and ensure that they, and their families, thrive in today’s workforce.

Are you an employer looking to ramp up your Veteran hiring and retention efforts? Here are a few resources and top employers who can help:

  • LinkedIn – currently 2.5 million users are listed as Veterans on LinkedIn. In reality, that number is much higher. Learn how to identify yourself as a Veteran or a Veteran spouse. Recruiters, learn the powerful resources available to find these highly skilled candidates.
  • PsychArmor Institute: FREE (due to incredible sponsors) courses educating employers, caregivers & families, volunteers, educators, and healthcare providers on all things military. Recruiters and Hiring Managers, check out “15 Things Veterans Want You to Know.”
  • These employers took the stage and shared how they are doing great things to hire and retain Veterans. Check out their career sites:

*Donates DirectEmployers Member. Members can reach out in the DE Community or to their Membership Representative to connect with other Members. To connect to the experts to enhance your career site, contact RecruitRooster.

Mark your calendar! The NASWA 6th Annual Veterans Conference will be held again at the Grand Hyatt Washington DC in July 2019. We hope to see you there! Follow NASWA and DirectEmployers for more details as they become available.

 

Wednesday, July 18, 2018: “Persuader Rule” Rescinded

The U.S. Department of Labor (DOL) formally rescinded the Rule interpreting the “Advice” Exemption in the Labor-Management Reporting and Disclosure Act. 

The Regulation

The Obama administration enacted the Regulation which became effective on April 25, 2016. It provides for the increased transparency to workers without imposing any restraints on the content, timing, or method by which an employer chooses to make known to its employees its position on matters relating to union representation or collective bargaining.

The “Persuader Rule” of the Regulation

Section 203(c) of the Rule, known as the “Persuader Rule,” requires that employers and their consultant’s report to DOL any “persuader activities” performed. DOL previously only required these disclosures when employers undertook “direct” activities, such as giving presentations to employees. Under the Rule, “indirect persuader activities,” for example, recommending what managers should say to employees involved in unionization efforts, were exempted from required reporting.

The Court Stepped In

In 2016, the National Federation of Independent Business (NFIB) fought the Rule (and subsequently are quite happy with the recent repeal) alongside several groups in Texas. The U.S. District Court for the Northern District of Texas on November 16, 2016, granted summary judgment to the business groups, finding the Rule “unlawful.”

The Final Word

The DOL’s Office of Policy’s Deputy Assistant Secretary Nathan Mehrens remarked:

“For decades, the Department enforced an easy-to-understand regulation: Personal interactions with employees done by employers’ consultants triggered reporting obligations, but advice between a client and attorney did not. By rescinding this Rule, the Department stands up for the rights of Americans to ask a question of their attorney without mandated disclosure to the government.”

 

Wednesday, July 18, 2018: Full 11th Circuit Won’t Hear LGBT Employment Discrimination Suit En Banc

Against a vigorous and biting dissent by Circuit Judge Robin S. Rosenbaum, the Eleventh Circuit Court of Appeals (“Atlanta”) decided last week to stick to a 39 year-old case decision precedent (which had held that “discharge for homosexuality isn’t prohibited by Title VII” of the Civil Rights Act of 1964) and refused to hear en banc (i.e. all eleven judges of the Eleventh Circuit Court of Appeals) a 3-Judge panel’s earlier decision last May in Bostock v. Clayton County Board of Commissioners, No. 17-13801 (unpublished opinion) May 10, 2018.

The First (3-Judge Panel) Bostock Decision

The 3-Judge panel decision in May was Bostock v. Clayton County. Bd. of Commissioners (11th Cir., No. 17-13801, 5/10/18). The court agreed that Bostock DID suffer discrimination based on sexual orientation and gender stereotyping. However, the 3-Judge panel went on to conclude nonetheless that, “…we cannot overrule a prior panel’s holding, regardless of whether we think it was wrong, unless an intervening Supreme Court or Eleventh Circuit en banc decision is issued.”

Note: The previous Eleventh Circuit case decision that the Bostock 3-Judge panel found “tied its hands” as to the issue of gays rights under Title VII, was one which the court published in 1979: Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979).

Note: The Fifth Circuit Court of Appeals (New Orleans) used to include Atlanta and the Southeast within its jurisdiction until October 1981 when it split off the Eleventh Circuit Court of Appeals located in Atlanta. Old Fifth Circuit case law is still binding, nonetheless, in the Eleventh Circuit until the Eleventh Circuit issues an en banc decision setting a new course for that circuit.

What Just Happened

The court decided NOT to take the issue en banc, which would allow the court to overturn prior precedent.

The Current Landscape

The Second (New York) and Seventh (Chicago) federal Circuit Courts of Appeals have both decided that discrimination on the basis of sexual orientation IS a form of sex discrimination that Title VII of the 1964 Civil Rights Act prohibits. These cases are currently pending review by the U.S. Supreme Court. However, as Judge Robin S. Rosenbaum of the Eleventh Circuit Court pointed out in her dissent last week, the caseload awaiting the Supreme Court is quite daunting and the SCOTUS may not accept either the Second Circuit or Seventh Circuit case to review. She was highly disappointed in the decision her colleagues made last week to not agree to en banc review of the earlier 3-Judge panel decision in the Bostock case and thus penned her blistering dissent which has caught the eye of gay and lesbian rights activists across the country.

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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John C. Fox
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