OFCCP Week In Review: July 8, 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:

• New Opinion Letters from WHD
• EEO-1 Component 2 FAQs Released
• EEOC Emails Component 2 Reminder
• Autism Support Resources
• New Disability Inclusion Award
• Trump Taps a Republican and a Democrat to be EEOC Commissioners in a Packaged Deal

Monday, July 1, 2019: New Opinion Letters from WHD

The Wage and Hour Division (“WHD”) of the U.S. Department of Labor announced the release of three new opinion letters that address compliance issues related to the Fair Labor Standards Act (“FLSA”).

New Opinion Letters

• FLSA2019-7 addresses the calculation of overtime pay for nondiscretionary bonuses paid on a quarterly and annual basis.
• FLSA2019-8 addresses the application of the highly compensated employee exemption to paralegals employed by a trade organization.
• FLSA2019-9 addresses permissible rounding practices for calculating an employee’s hours worked.

CAUTION!

Employers beware, state laws offering a more favorable outcome to the employee will supplement federal laws and guidance. Employers should think very carefully before adopting or maintaining a rounding system, particularly if their timekeeping systems are capable of capturing actual time worked. Often, rounding is a historical practice that was never changed after computerized timekeeping programs became available. Even a lawful rounding program invites legal challenges that are costly and time-consuming to defend and have uncertain outcomes.

Monday, July 1, 2019: EEO-1 Component 2 FAQs Released

Although the filing portal will not open until July 15, 2019, the website is up and running with the relevant survey information that is available at this time. The site does host links to the Federal Register Notice, the April 25 Court Order, and a variety of Frequently Asked Questions (“FAQs”).

FAQ topics covered include:

• Deadline for Filing (September 30, 2019)
• Filing Requirements (Including about the “snapshot period” below)
  • Q: Must an employer choose the same “workforce snapshot period” for Component 2 that it chose for its Component 1 EEO-1 reporting for 2017 and 2018?”
  • A: No. Employers are permitted to choose a different workforce snapshot period for reporting Component 2 data for each of these years if they so choose.
• Summary Compensation Data
• Hours Worked
• Multi-Establishment Reporting
• Component 2 EEO-1 Online Filing System
• Confidentiality of Component 2 Compensation Data (FOIA requests)

Confidentiality

The FAQ addresses FOIA requests. However, on the main page of the website, the following information is provided:

     Online Filing System Features and Benefits

•  Secure: Data is transferred over the internet using encryption, assuring your privacy.

     System Notification

    “ … The data in this system are being collected with software that is designed to secure your data and provide you with confidentiality. However, please be apprised that all Internet-based communication is subject to the remote likelihood of tampering from an outside source. Access or use of this website by any user constitutes consent to this term.” (emphasis added)

Tuesday, July 2, 2019: EEOC Emails Component 2 Reminder

Per the EEO-1 Component 2 Timeline, the EEOC emailed employers an initial notification to file their data (the snail mail version was sent July 1, 2019). This first notification did not include login information. The formal invitation to submit data, which will contain login information, is scheduled to be emailed on July 15, 2019 (when the filing portal is scheduled to open).

Tuesday, July 2, 2019: Autism Support Resources

WorkforceGPS is your online technical assistance website created to help build the capacity of America’s public workforce investment system. Sponsored by the Employment and Training Administration of the U.S. Department of Labor, WorkforceGPS was developed specifically for workforce professionals, educators, and business leaders. Here you will find curated communities of interest, useful webinars and other training resources, promising workforce development practices, and relevant evidence-based research – giving you the tools you need to help you create innovative approaches to improve the employment prospects of job seekers. We invite you to come and engage with your peers by joining WorkforceGPS today.[/caption]

The U.S. Department of Labor’s Employment & Training Administration released a webpage with a variety of resources to support individuals on the Autism Spectrum. “Workplace Resources for Autism Spectrum Disorder,” includes tools for employers, individuals on the spectrum, and family members of those individuals.

Tools to Support Employers

• Accommodation Ideas for Autism Spectrum: Job Accommodation Network (“JAN)” resource reporting accommodation ideas to support individuals with autism and help them succeed in the workplace.
• Understanding Autism: An Employer’s Guide: The Organization for Autism Research developed a guide to help front line supervisors know the strategies they can use to orient, train, and support the professional growth of their employees with autism.

Employing Individuals with Autism: The Ohio Center for Autism and Low Incidence Disabilities developed a video outlining the benefits Walgreens has seen in hiring employees on the autism spectrum.

Tuesday, July 2, 2019: New Disability Inclusion Award

The Office of Federal Contract Compliance announced the details and open application window for the highly anticipated Excellence in Disability Inclusion (EDI) Award. Proposed in October of 2018, the EDI Award will recognize federal government contractors which go above and beyond to recruit, hire, retain, and advance individuals with disabilities in the workplace.

Why Should You Apply?

The EDI Award will showcase successful programs and best practices that others can emulate. Become a role model and a recognized leader who understands and values all that individuals with disabilities bring to the workplace.

EDI Gold Award recipients will receive a three-year moratorium from OFCCP compliance evaluations.

Who is Eligible for the Award?

Federal Government contractors in good standing under the current regulations must meet four eligibility requirements to receive the EDI Award.

How Do You Apply?

The 2019 application process is now underway! Interested federal Government contractors may click the Apply Now button to get started.

Submit your completed nomination package by Saturday, August 31, 2019.

Wednesday, July 3, 2019: Trump Taps a Republican and a Democrat to be EEOC Commissioners in a Packaged Deal

Keith Sonderling (currently Deputy Administrator of USDOL’s Wage and Hour Administration) to fill one of the three Republican seats on the Commission to join fellow Republicans Chair Janet Dhillon (term expires July 1, 2022) and Commissioner Victoria Lipnic (term expires July 1, 2020). If the Senate were to confirm Mr. Sonderling’s nomination, his confirmation would complete the Republican slate of three Republican Commissioners on the five-Member Commission. Mr. Sonderling’s term would expire July 1, 2024. The Commission is structured to allow a sitting President to appoint three Commissioners of his own party. Mr. Sonderling will remain at USDOL pending a Senate Health, Education, Labor & Pensions (H.E.L.P.) Committee confirmation Hearing and a later Senate Floor vote if the Committee puts Mr. Sonderling forward to the full Senate. Confirmation is expected given Republican control of the H.E.L.P. Committee and a pre-packaged deal with Democrats. See below.

Charlotte Burrows (currently a sitting EEOC Commissioner and the lone Democrat on the Commission whose term expired on July 1 following a five-year appointment President Obama put forward to the Senate in 2014). NOTE: one Democrat Commission seat still remains vacant.  EEOC procedure allows Ms. Burrows to continue to serve as a Commissioner through the end of calendar year 2019, despite her expired term, while her nomination is pending in the Senate. If confirmed, Ms. Burrows would serve the remainder of a five-year term, expiring July 1, 2023.

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.