OFCCP Week In Review: March 18, 2019

The DE 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:

• OFCCP Announced Financial and Legal Industry Town Halls
• Round One of Budgets Released
• Beach Confirmed By Senate
• WHD Issued Three Opinion Letters
• WHD issued an H-1B Compliance Reminder
• EEO-1 Survey Opens Today – March 18, 2019

Monday, March 11, 2019: OFCCP Announced Financial and Legal Industry Town Halls

The Office of Federal Contract Compliance Programs (“OFCCP”) announced the dates and locations of the next round of Town Hall events in their series. These upcoming meetings will be held in New York and focus on legal and financial industries. The goal is for the Agency to gain insight to enhance the scope and quality of compliance assistance materials and to create events geared towards the financial and legal industries.

Director Leen shared a great deal of insight and advice, for all industries, at the Tech Town Hall meetings held on the west coast in February.

When & Where?

• Tuesday, April 9, 2019, at the Millennium Hilton New York Downtown focused on the financial industry.
• Wednesday, April 10, 2019, at the Millennium Hilton New York Downtown focused on the legal industry.

Who Should Attend?  

The event is free and open to the public. However, the following types of positions are highly encouraged to attend.

• Human Resource Managers
• Equal Employment Opportunity Specialists
• Chief Compliance Officers
• Personnel in the financial and legal industries which are directly involved with ensuring their company’s compliance with OFCCP’s requirements.

Note: There are only two tickets available per organization on a first come, first serve basis.

DirectEmployers Members

If you plan to attend and would like to connect with other Members while there, please inform Jennifer Polcer. DE Members may also comment on the Member Alert and see these other upcoming events in the DE Connect calendar.

Tuesday, March 12, 2019: Round One of Budgets Released

The U.S. Department of Labor (“DOL”) released its FY2020 “Budget in Brief.” OFCCP is requesting $103,576,000 and 500 full-time employees (“FTE”). This request is almost flat from last FY (see photo below). However, it includes a program increase of $2,500,000 to fund the Worker Protection IT Modernization efforts. According to the DOL, the increase would be mostly offset by a modernization initiative that would bring operational efficiencies to conducting compliance evaluations, providing consistency in case processing, and allowing for real-time monitoring of performance and improvement in data quality across all field offices.

OFCCP FY2020 Budget Request

History of OFCCP Full-Time Staff

We broke this down last February along with the budget proposal at that time.

• 2018 = 508
• 2017 = 556
• 2016 = 615
• 2015 = 621
• 2014 = 683
• 2013 = 729
• 2012 = 755
• 2011 = 775
• 2010 = 788
• 2009 = 585

What Could It All Possibly Mean?

OFCCP needs the $2.5M to modernize its computerized audit selection system software and hardware to allow the agency to attempt to detect “patterns” of violations among industries OFCCP has previously audited as revealed in OFCCP’s internal database of audits and Conciliation Agreements. OFCCP wants to use its historical audit database to make selections for future audits by targeting those industries with a “pattern” of non-compliance. The House and Senate Appropriations Committees will now review the President’s proposed budget and then put forward their own proposed budgets. In a change of direction, the President did not this year propose a large percentage reduction to OFCCP’s budget which the Congress received in each of the past two years and which the Congress considered a “DOA budget” (“Dead on Arrival”). President Trump’s FY2020 budget proposal is thus the first “realistic” budget he has proposed for OFCCP. Nonetheless, The House, now governed, of course, by Democrats, can be reliably counted upon to suggest a much larger dollar budget for OFCCP. The Senate, which has been the leading force to set the OFCCP budget thus far during the Trump Administration, has been sponsoring slow, but steady, year-over-year step-down cuts to OFCCP’s budget. The bi-partisan efforts of the Congress over the last 16 years to downgrade OFCCP’s influence by slowly “letting the air out of the tire” has led to the steady erosion of OFCCP’s staff as noted in the above OFCCP staffing chart. Finally, it is doubtful that even if the Congress were to enact the President’s proposed “steady state” budget that OFCCP’s staffing would come in at 500 employees by September 30, 2020 (the last day of FY 2020). This is because there are so many empty positions currently within OFCCP that an especially large-scale and vigorous recruitment and hiring program now lies ahead of OFCCP. To be successful, enormous amounts of OFCCP mindshare, training time and time spent away from auditing would have to occur during this recruitment era when “the dugout is empty.” Contractors need to thus patiently wait to see how OFCCP’s budget will unfold this year and what it may mean for the number of audits for the remainder of 2019 (which is planned to be the highest number of audits in several years) and next year in 2020, and what this budget could mean for the mix of audit selections in 2020 and beyond.

Wednesday, March 14, 2019: Beach Confirmed by Senate

The U.S. Senate confirmed William Beach by a vote of 55 – 44 to be the Commissioner of the Bureau of Labor Statistics. Beach is an expert in labor, econometric models, tax laws, and the national economy. He is the Vice President for Policy Research at the Mercatus Center at George Mason University. Before joining the Mercatus Center, Beach served as the Chief Economist for the Senate Budget Committee, Republican Staff. Prior to that position, he was at The Heritage Foundation as the Director of the Foundation’s Center for Data Analysis. In that role, Beach oversaw original statistical research on topics such as Social Security, education, and trade.

Thursday, March 14, 2019: WHD Issued Three Opinion Letters

The Wage and Hour Division (“WHD”) of the U.S. Department of Labor issued its first three Opinion Letters in 2019.

FLSA2019-1

This Opinion Letter addresses questions concerning the conflict of FLSA regulations and state law requirements regarding residential janitors.

FMLA2019-1-A

This Opinion Letter addresses questions whether an employer may delay designating paid leave as Family and Medical Leave (“FMLA”) or permit employees to expand their FMLA leave beyond the federal statuary 12-week entitlement for eligible employees. Given the circumstances the Letter outlines, the employer may not delay the designation of FMLA-qualifying leave or designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave.

Note: Once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave (29 CFR 825.220(d)).

FLSA2019-2

This Opinion Letter answers in the negative the question whether a bonus an employer pays to a “volunteer” providing service in an employer’s optional volunteer program is compensable under the Fair Labor Standards Act (“FLSA”) given the precise circumstances the employer presented in its Letter.

Friday, March 15, 2019: WHD Issued an H-1B Compliance Reminder

The Wage and Hour Division (“WHD”) of the U.S. Department of Labor issued a Field Assistance Bulletin (No. 2019-3) reiterating the “posting” requirement for employers seeking to hire H-1b nonimmigrant workers.

The Immigration and Nationality Act (“INA”), as amended, requires an employer (the H-1b petitioner) seeking to employ H-1b nonimmigrant workers to comply with various requirements. Among other things, the H-1b petitioner must “post” information to notify affected U.S. workers of its intent to hire H1-b nonimmigrant workers. The “posting” informs U.S. workers of the terms of the employment of the nonimmigrant workers, the right of U.S. workers to examine certain documents, and the ability of U.S. workers to file complaints if they believe that violations have occurred.

H-1b petitioners must choose from three methods to notify existing workers of their intent to hire H1-B workers:

1. Posting Hard-Copies (in at least two conspicuous places);
2. Electronic Notifications (must be readily available to all affected employees, including those employees a third-party hires for the Petitioner);
3. Notification to a collective bargaining representative (when applicable);

The Bottom Line

If an H-1b petitioner selects the electronic notification option, it is imperative that the employer ensure that all affected workers, including those employed by a third party, have access to and are aware of the electronic notification.

Reminder: EEO-1 Survey Opens Today–March 18, 2019

As we announced last week, the EEO-1 Survey opens March 18, 2019.

The EEOC released a reminder email today including:

“The EEOC is working diligently on next steps in the wake of the court’s order in National Women’s Law Center, et al., v. Office of Management and Budget, et al., Civil Action No. 17-cv-2458 (TSC), which vacated the OMB stay on collection of Component 2 EEO-1 pay data. The EEOC will provide further information as soon as possible.”