OFCCP Week In Review: July 27, 2020

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 FLSA and FMLA Guidance on Return to Work and the FFCRA
• The NLRB Draws the Line on Abusive and Offensive Statements
• Federal Government Contractors Must Review Compensation Systems
• OFCCP Updates on Conciliation, Mediation, and the Ombuds Service
• Senate Confirmed NLRB Board Members Kaplan and McFerran To New NLRB Terms In Office
• Honoring and Educating: The Celebration of the 30th Anniversary of the ADA

Monday, July 20, 2020: New FLSA and FMLA Guidance on Return to Work and the FFCRA

The U.S. Department of Labor’s Wage and Hour Division (WHD) announced the publication of new guidance to navigate return-to-work concerns and the Fair Labor Standards Act (FLSA), the Family Medical Leave Act (FMLA), and the Families First Coronavirus Response Act (FFCRA).

The question and answer page supporting the FLSA includes six new questions (numbers 14 -19). Highlights include:

• #14: I am an employer who allows my employees to telework during the COVID-19 emergency. Now that my employees are no longer at my worksite, how do I determine their hours of compensable work? Do I have to pay my employees for hours I did not authorize them to work? Do I have to pay them for hours worked even when they do not report those hours?

• #16: Can a salaried executive, administrative, or professional employee who is exempt from the Fair Labor Standards Act’s (FLSA’s) minimum wage and overtime requirements under Section 13(a)(1) perform other nonexempt duties during the COVID-19 public health emergency and continue to be treated as exempt?

• #17: Is hazard pay required under the Fair Labor Standards Act (FLSA) for employees working during the COVID-19 pandemic?

The question and answer page supporting the FMLA includes two new questions (numbers 12-13). These are:

• #12: Due to safety and health concerns related to COVID-19, many health care providers are treating patients for a variety of conditions, including those unrelated to COVID-19, via telemedicine. Telemedicine involves face-to-face examinations or treatment of patients by remote video conference via computers or mobile devices. Under these circumstances, will a telemedicine visit count as an in-person visit to establish a serious health condition under the FMLA?
• #13: I was out on FMLA leave unrelated to COVID-19. While I was out, my company implemented a new policy requiring everyone to take a COVID-19 test before they come to the office. Under the FMLA, can my employer require me to get a COVID-19 test under this policy?

As a reminder, other guidance provided by the WHD on FFCRA over the last few months includes:

• Fact Sheet for Employees
• Fact Sheet for Employers
• Q&A resource page on paid sick and expanded family and medical leave under the FFCRA
• Guidance poster for federal workers and one for all others as required under FFCRA
• Q&A resource page on FFCRA posting requirements
• Quick Benefits Tips to determine how much paid leave the FFCRA allows workers to take​

Tuesday, July 21, 2020: The NLRB Draws the Line on Abusive and Offensive Statements

In a new General Motors decision, the National Labor Relations Board (NLRB) announced the modification of the standard to determine whether employees have been lawfully disciplined or discharged after making abusive or offensive statements in the course of activity the National Labor Relations Act (Act) otherwise protects. Statements to which the new legal standard applies include profane, racist, and sexually unacceptable remarks.

Specifically, the new General Motors decision has now adopted the Wright Line standard for unacceptable employee remarks. The Board has long applied the Wright Line standard with court approval in mixed-motive cases. The Wright Line standard now becomes the applicable standard for ALL cases involving offensive or abusive conduct in the course of an otherwise-protected activity and now replaces a previous patchwork of more specific standards the Board had previously supplied to specific circumstances.

Under Wright Line, the General Counsel must first prove that the employee’s protected activity was a motivating factor in the discipline. If so, the employer must then prove it would have taken the same action even in the absence of the protected activity. The employer may do this, for example, by showing it consistently disciplined other employees who engaged in similar abusive or offensive conduct.

This new general standard replaces a variety of previously adopted specific standards for:

• encounters with management (Atlantic Steel),
• exchanges between employees and postings on social media (a “totality of the circumstances” test), and
• offensive statements and conduct on the picket line (Clear Pine Mouldings).

While mindful that employees should enjoy some leeway for impulsive behavior when engaging in activities the Act protects, the Board concluded that these previous tests often resulted in the reinstatement of employees discharged for highly offensive conduct. These decisions were out of step with most workplace norms and were difficult to reconcile with anti-discrimination law in the view of the new Board majority.

“This is a long-overdue change in the NLRB’s approach to profanity-laced tirades and other abusive conduct in the workplace,” said Board Chairman John F. Ring. “For too long,” he added, “the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today. Our decision in General Motors ends this unwarranted protection, eliminates the conflict between the NLRA and anti-discrimination laws, and acknowledges that the expectations for employee conduct in the workplace have changed.”

The Case

General Motors LLC, 14-CA-197985 369 NLRB No. 127 (2020)

Wednesday, July 22, 2020: Federal Government Contractors Must Review Compensation Systems

The OFCCP “Branch of Expert Services” presented for the 2020 NILG webinar series. The Branch consists of Timothy Li, Statistician with OFCCP, Ryan Peterson, Labor Economist for OFCCP’s Southeast Region, Andy Leu, Senior Statistician with OFCCP, Bret Phillips, Statistician for OFCCP’s Southwest and Rocky Mountain Region, and David Garber, Economist with OFCCP. During the presentation, the group suggested several methods employers might consider using to review their compensation practices, while noting that many of their suggestions were not analyses OFCCP is free to use and noting that OFCCP is bound to apply Title VII law principles. The group offered a number of suggestions for “Assessing Small Groups,” including:

• Fisher’s Exact test,
• Rank Sum tests such as Mann-Whitney U,
• K-Nearest Neighbor (KNN) method to predict pay,
• Cohort Analysis, and
• Multiattribute Utility Analysis (MAUT)

The group did not discuss whether Title VII law finds it appropriate to apply pay prediction models as opposed to analyzing the actual pay standards the employer used to make pay decisions.

The Bottom Line

Nicely summarized by Bob LaJeunesse, Acting Director of Enforcement for OFCCP, the bottom line is that federal Government Contractors have “an obligation to review their pay” (See 41 CFR §60-2.17(b)(3)). [EDITORIAL NOTE: While this Rule is quite broad and vague, each covered contractor nonetheless has to annually decide how it will pour content into the Rule’s requirement to do something and this cannot be put under Attorney-Client Privilege due to the regulatory requirement to review]. Acting Director LaJeunesse stated that each organization must determine what kind of review would work best for that company. This determination should include what characteristics and attributes to include in a compensation analysis and also take into consideration the company’s risk tolerance level.

To view the presentation, visit the NILG’s website.

Friday, July 24, 2020: OFCCP Updates on Conciliation, Mediation, and the Ombuds Service

The Office of Federal Contract Compliance Programs (OFCCP) announced an upcoming webinar with updates on Conciliation, Mediation, and the Ombuds Service.

The webinar will address:

• How OFCCP strives for consistency and transparency in the conciliation of claims, and how the Agency seeks an efficacious settlement framework to keep its aged caseload low;

• How OFCCP plans to use its recently implemented Pre-Referral Mediation Program;

• How the Ombuds Service functions both independently and in conjunction with other OFCCP dispute resolution procedures.

The webinar presenters (tentative) include Director Craig Leen, Deputy Director Bob Gaglione, Deputy Director Patricia Davidson, Director of Enforcement Bob LaJeunesse, Ombudsman Marcus Stergio, and Director of the Division of Policy and Program Development Tina Williams.

Webinar Details

Tuesday, August 4, 2020
11:30 a.m. – 1:30 p.m. EST
Register online

Prior WIR reports of OFCCP Ombuds Marcus Stergio are here:

• Wednesday, July 15, 2020: OFCCP Ombuds Tells What Types of Issues He is Handling
• Friday, May 8, 2020: OFCCP Ombudsman Tells it as it is to the Indy ILG
• Friday, April 17, 2020: OFCCP Published Three New Directives
• Friday, August 9, 2019: Ombudsman On Board at OFCCP

Monday, July 27, 2020: Senate Confirmed NLRB Board Members Kaplan and McFerran To New NLRB Terms In Office

By unanimous consent the Senate waived a quorum call which would have otherwise summonsed all United States Senators to come to the Senate Floor to vote on President Trump’s nominations of Marvin Kaplan and Lauren McGarity McFerran to be reappointed to the National Labor Relations Board (NLRB) for additional terms. The Senate’s Unanimous Consent Order provides Mr. Kaplan will serve on the Board for a term of five years, expiring August 27, 2025. Ms. Lauren McGarity McFerran will serve a term of five years, expiring December 16, 2024.

The Current NLRB Board Continues To Run Short By One Democrat Member

1. John Ring (R) (Chairman), term expires December 16, 2022
2. William Emanuel (R), term expires August 27, 2021
3. Marvin Kaplan (R), term expires August 27, 2025
4. Lauren McFerran(D) term expires December 16, 2024
5. Vacant

The National Labor Relations Board (NLRB) has five Members and primarily acts as a quasi-judicial body to decide contested cases based on formal records in administrative proceedings. The President appoints Board Members to 5-year terms with the Advice and Consent of the Senate. The term of one Member expires each year.

Honoring and Educating: The Celebration of the 30th Anniversary of the ADA

On July 26, 1990, President George H.W. Bush (#41) signed the Americans with Disabilities Act into law.On July 26, 1990, President George H.W. Bush (#41) signed the Americans with Disabilities Act into law.

Pictured from left to right: (seated) are Evan Kemp, then Chairman of the EEOC, the Reverend Harold Wilke, a United Church of Christ minister born without arms and an early leading disability rights advocate, President Bush signing, Sandra Parrino, the then White House Press Secretary, and Justin Dart (seated), the country’s then leading disability rights activist and widely credited for causing the ADA to pass into law.

In his 1990 speech introducing the Act, President Bush stated, “The Americans with Disabilities Act presents us all with an historic opportunity. It signals the end to the unjustified segregation and exclusion of persons with disabilities from the mainstream of American life. As the Declaration of Independence has been a beacon for people all over the world seeking freedom, it is my hope that the Americans with Disabilities Act will likewise come to be a model for the choices and opportunities of future generations around the world.”

The Equal Employment Opportunity Commission (EEOC) Chair, Janet Dhillon, released a statement in support and celebration of the 30th Anniversary of the Americans with Disabilities Act (ADA). She stated, “Those who work at the EEOC bring President Bush’s words to life each day as they carry out EEOC’s mission to “prevent and remedy unlawful employment discrimination and advance equal opportunity for all in the workplace.” To mark the Anniversary, the Agency created a website landing page, The ADA@30: The Americans with Disabilities Act 1990-2020 that provides:

• information about disability rights and responsibilities in the workplace
• a short description of the ADA
• a selection of resources to assist applicants, employees, employers (including small businesses), staffing firms, and veterans with disabilities to better understand the ADA

Throughout this 30th anniversary year, the Department of Justice (DOJ) has published blogs to highlight the impact that its recent ADA enforcement efforts have made in people’s everyday lives and to honor the individuals that brought those matters to its attention. The latest blog, “Furthering the Promise of Equal Access to Health Care,” highlights how the ADA guarantees that individuals with disabilities receive equal access to medical providers like doctor’s offices, pharmacies, and hospitals. The DOJ vigorously enforces the ADA to eliminate physical and attitudinal barriers that keep individuals with disabilities from accessing the medical care they need. As the nation battles the COVID-19 pandemic, the ADA’s fundamental principles of equality and fairness remain strong and vital guideposts.

As Eric S. Dreiband, the Assistant Attorney General in charge of the Civil Rights Division, recently stated, “We are dedicated to the equal dignity of individuals with disabilities and will take action against anyone who violates federal law in dispensing healthcare in response to COVID-19. The Americans with Disabilities Act . . . protects the right of individuals with disabilities to have access to healthcare on the same basis as nondisabled people.”

Read more about the recent wins from the DOJ’s Barrier-Free Health Care Initiative. This initiative allows the U.S. Attorneys’ Offices across the country to partner with the DOJ’s Civil Rights Division to ensure that individuals with disabilities can access health care.

In honor of the Anniversary, the U.S. Department of Labor’s Office of Disability Employment Policy (ODEP) launched an ADA 30th anniversary website. The site features a timeline of advancements in disability and employment since the ADA’s passage and a list of celebration ideas. Examples include issuing a press release expressing your organization’s commitment to the ADA, featuring the Anniversary on your company website and social media platforms, and conducting employee training on disability inclusion.

Jennifer Sheehy, Deputy Assistant Secretary of Labor for Disability Employment Policy, wrote a blog titled, “#ADA30: Increasing Access and Opportunity and the Thrill of Discovering What You Can Do.” In the blog, Sheehy, a competitive swimmer permanently injured when a fellow swimmer clowning around at pool’s edge unexpectedly pushed her back into the pool, shares her personal story about the effect the ADA has had on her life and discussed the importance of equal access and opportunity for all Americans.

The Council of State Governments (CSG), in collaboration with ODEP’s State Exchange on Employment & Disability (SEED), will host a six-part webinar series to explore the foundation and impact of the ADA. The webinars will feature policymakers, subject matter experts, and other leaders in the field discussing inclusive policies and programs to improve employment outcomes for individuals with disabilities. Each participant will receive a certification upon completion.

• Webinar 1: The Legacy of the ADA: Celebrating 30 Years of Increasing Access and Opportunity! Thursday, July 30^th from 12:00 p.m. – 1:30 p.m. EST
• Webinar 2: The State as a Model Employer (SAME) of People with Disabilities (Aug. 13)
• Webinar 3: Getting Ready for Work – Youth Transition and Guideposts for Success (Sept. 10)
• Webinar 4: Stay-at-Work/Return-to-Work Policy and Practice (Sept. 24)
• Webinar 5: Accessible Transportation and Workplace Technology (Oct. 15)
• Webinar 6: Ensuring a Disability Perspective in State Policy (Nov. 19)

The Job Accommodation Network (JAN) posted a blog titled “Reflections on the 30th Anniversary of the Americans with Disabilities Act.” In the blog, JAN consultants share their thoughts on what the ADA means to them, both personally and professionally.

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.