OFCCP Week In Review: November 9, 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:

• OFCCP Grants National Interest Exemptions for Recent Natural Disasters
• USDOJ Touts Win in Disability-Related Childcare Case
• EEOC TO Meet on Religious Discrimination
• New Initiative to Help Americans Obtain Employment
• Controversial MOU Between OFCCP and EEOC Now Vests OFCCP With Authority to Investigate Title VII Charges and Apply Tilte VII Liability and Remedies
• Comment Now on HIRE Vets Medallion Program
• Two New WHD Opinion Letters
• OFCCP Released a Supply & Service Technical Assistance Guide
• OFCCP Compliance: Looking Back and Ahead
• OFCCP’s “New Gold Standard” in Resolving Potential Discrimination
• The October Employment Situation Shows Slight Improvements
• Mark Your Calendar – Happening THIS week!

Monday, November 2, 2020: OFCCP Grants National Interest Exemptions for Recent Natural Disasters

The Office of Federal Contract Compliance Programs (OFCCP) granted several new National Interest Exemptions due to the country’s recent hurricanes and fires. For those organizations signing federal contracts involving clean-up, recovery, and aid to these areas, some of your OFCCP administrative burdens are on hold.

New federal contracts to provide relief efforts for the respective incidents will be exempt from some obligations under Executive Order 11246, VEVRAA, and Section 503. All exemptions are subject to a possible extension.

• Hurricane Zeta National Interest Exemption: Oct 28, 2020, to Jan 28, 2021, FAQs
• Hurricane Delta National Interest Exemption: Oct 9, 2020, to Jan 9, 2021, FAQs
• Hurricane Sally National Interest Exemption: Sept 15, 2020, to Dec 15, 2020, FAQs
• 2020 Oregon Wildfire National Interest Exemption: Sept 14, 2020, to Dec 14, 2020, FAQs
• 2020 California Wildfire National Interest Exemption: Sept 11, 2020, to Dec 11, 2020, FAQs

Monday, November 2, 2020: USDOJ Touts Win in Disability-Related Childcare Case

The Nation continues to celebrate the 30th Anniversary of the Americans with Disabilities Act. As such, the U.S. Department of Justice (USDOJ) released another ADA-related blog, this one outlining a recent case promoting equal access to childcare.

The Agency recently entered into a settlement agreement with one of the country’s largest child care providers. The United States alleged that Spring Education violated Title III of the ADA when it refused to make reasonable modifications to its toileting policy for children with disabilities. It expelled a child at one of its New Jersey centers, Margaret (Maggie) Miller, because she had toileting delays related to her disability, Down syndrome.

Monday, November 2, 2020: EEOC TO Meet on Religious Discrimination

The U.S. Equal Employment Opportunity Commission (EEOC) announced it will hold a remote, audio-only Commission meeting on Monday, November 9th at 1:00 PM (Eastern Time).

According to the Sunshine Act, the public may listen to the meeting. On November 8th, the Agency will post the listening instructions on its website. Closed captioning services will be available.

Agenda

• Update to the Compliance Manual Section on Religious Discrimination.

Meeting Attendance Details

The Commission’s agenda is subject to revision.  The Agency will post a recording and transcript of the meeting on its website.

For additional information, contact Kimberly Smith-Brown, (202) 663-4191 (voice) or (800) 669-6820 (TTY).

Monday, November 2, 2020: New Initiative to Help Americans Obtain Employment

The Trump Administration announced that the U.S. Departments of Health and Human Services (HHS), Labor, and Agriculture will be joining efforts “to put American workers first in a post-coronavirus economic recovery initiative to help more families experience the benefits of work.”

Through the “Engaging as One Workforce for America” initiative, HHS’ Administration for Children and Families (ACF), the Department of Labor’s Employment and Training Administration (ETA), and USDA’s Food and Nutrition Service (FNS) will work to increase the capacity of state and local governments to:

• engage unemployed individuals to shorten durations of unemployment and reduce disconnections from the workforce that make it harder for individuals to return; and
• connect individuals who were not working before the pandemic to the workforce through a comprehensive and coordinated public and private effort.

“We’re doing everything we can to help struggling Americans secure the training, support resources, and job opportunities they need to provide for their families,” said Assistant Secretary Lynn Johnson at the Administration for Children and Families at the U.S. Department of Health and Human Services. “Our goal in this partnership is to lift up our American workers and help set them up for success.”

Concurrent with the initiative’s announcement, a limited number of states will receive a letter proposing to partner and pilot a collaborative workforce program initiative to help more households enter, re-enter, and remain in the workforce.

Tuesday, November 3, 2020: Controversial MOU Between OFCCP and EEOC Now Vests OFCCP With Authority to Investigate Title VII Charges and Apply Title VII Liability and Remedies

As reported last week, the EEOC, the OFCCP, and the U.S. Department of Justice (DOJ) met to discuss the revision of the existing (2011) Memorandum of Understanding (MOU) between the EEOC and the OFCCP.

By a vote of 3-2, EEOC voted to approve entering into a revised MOU to include the U.S. Department of Justice. The MOU “has broadly promoted interagency coordination in the enforcement of equal employment opportunity (EEO) laws and has also served to maximize effort, promote efficiency, and eliminate conflict, competition, duplication, and inconsistency among the operations, functions, and jurisdictions of the parties to the MOU. It has included specific coordination and referral procedures for complaints/charges of employment discrimination filed with OFCCP under E.O. 11246.  Further, the MOU has included provisions for sharing information as appropriate and to the extent allowable under law.”

EEOC Chair Janet Dhillon said, “I am very pleased with the outcome of today’s meeting and look forward to continuing the decades’ long collaboration with our sister agencies.”

OFCCP also released an announcement outlining the significant revisions to the MOU.

The MOU was effective November 3, 2020.

Take a deep dive to learn more in our exclusive bonus feature by clicking the image below, or navigate directly to the post here.

Tuesday, November 3, 2020: Comment Now on HIRE Vets Medallion Program

The USDOL’s Veterans’ Employment and Training Service (VETS) issued a Notice soliciting public comments regarding the extension, without changes, of the HIRE Vets Medallion Program.

The HIRE Vets Medallion Program is a voluntary employer recognition program which VETS administers. The awards recognize employer efforts to recruit, employ, and retain our Nation’s veterans. All employers which employ at least one veteran are eligible to apply for the Award.

Comment on:

1. Whether the collection of information is necessary for the proper performance of the functions of the DOL, including whether the information will have practical utility;
2. if the information will be processed and used in a timely manner;
3. the accuracy of the DOL’s estimates of the burden and cost of the collection of information, including the validity of the methodology and assumptions used;
4. ways to enhance the quality, utility, and clarity of the information collection; and
5. ways to minimize the burden of collecting information on those who are to respond, including automated collection techniques or other forms of information technology.

Comments are due on or before January 6, 2021.

Note: See “Mark Your Calendar” for the 2020 Awards Ceremony.

Tuesday, November 3, 2020: Two New WHD Opinion Letters

The U.S. Department of Labor’s Wage & Hour Division announced two new Opinion Letters that address compliance issues related to the Fair Labor Standards Act (FLSA).

Note: An Opinion Letter is an official, written opinion by the Department’s Wage and Hour Division (WHD) on how a particular law applies in specific circumstances presented by the person or entity that requested the letter.

The new Opinion Letters are:

• FLSA2020-15: Addresses the compensability of time that employees spend attending voluntary training programs in six different situations.
• FLSA2020-16: Addresses the compensability of employee travel time in certain situations involving construction sites located away from the employer’s principal place of business.

“The opinion letters issued today demonstrate the Wage and Hour Division’s commitment to providing clear guidance and compliance assistance to workers and employers,” said Wage and Hour Administrator Cheryl Stanton. “As the workforce continues to reopen, it remains important that we provide clarity to ensure workers are paid all the wages they have legally earned, and that employers compete on a level playing field.”

Tuesday, November 3, 2020: OFCCP Released a Supply & Service Technical Assistance Guide

OFCCP released the long-anticipated Technical Assistance Guide (TAG) for Supply and Service federal Government contractors. OFCCP believes the TAG may be used as a self-assessment tool when creating, reviewing, and updating affirmative action programs.

This 158-page resource outlines the various requirements under Executive Order 11246, Section 503 of the Rehabilitation Act, and VEVRAA (the Vietnam Era Veterans Readjustment Assistance Act) for covered contractors. It includes a breakdown of written requirements, recordkeeping requirements, and numerous other “to-do’s.” The TAG also contains the various types of Compliance Reviews (“audits”) and how to prepare for each one.

The Agency now has three Technical Assistance Guides. See also:

• The Construction TAG (issued November 13, 2019)
• The Educational Institutions TAG (issued October 11, 2019)

DE will publish a Blog in coming weeks discussing the “new” advice and insight contained in this latest TAG.

Thursday, November 5, 2020: OFCCP Compliance: Looking Back and Ahead

For the 3rd year in a row, OFCCP Director Craig Leen spoke candidly to the National Employment Law Institute’s (NELI) Affirmative Action Briefing audience. Co-Chaired by John Fox and DE’s own Candee Chambers, this highly anticipated event brought as much education and discussion in this tumultuous year as it did during its debut 39 years ago!

In a whirlwind three hours, Candee and John laid the groundwork for Director Leen to discuss his legacy, the Agency’s achievements, setbacks, and even late-breaking news (see the PDN story below which broke in the hour before the NELI Webinar conference began). At the same time, Director Leen’s future remains up in the air. While his current appointment to OFCCP will terminate on January 20, 2021 when President-Elect Biden is sworn into office, Director Leen is still hoping the U.S. Senate will vote to confirm him between now and Monday January 3, 2021 when the 116th Congress will end. President Trump’s nomination of Mr. Leen to become the next Inspector General of the U.S. Office of Personnel Management will also expire with the end of the 116th Congress.

That said, when asked about the legacy he hopes to leave, to no one’s surprise, he answered that #1 was his primary focus and drive pursuant to OFCCP’s Section 503 regulations, supporting individuals with disabilities. #2 is the new “PDN” Rule (see story below) and its approach to “transparent” and “fair” OFCCP treatment of contractors. Finally, #3 is “A LOT” of interaction with the affirmative action community in a myriad of events and activities over the past several years.

Additional topics included the recent, and quite controversial, Executive Order (EO) 13950, directed at Diversity and Inclusion (D&I) training (see our recent blog). Director Leen stressed that contractors should not stop D&I training, but rather review it against the prohibitions of EO 13950 and EO 11246 and make any necessary changes.

Director Leen’s speech wouldn’t be a speech without mention of the Agency’s four “pillars” to success. Each initiative, Directive, Rule, and activity coming from the Agency is tied to one or more of the four core principles of the strategic plan to promote certainty, efficiency, recognition, and transparency. The NELI handout materials link to a DE Week In Review story about each of the hundreds of major OFCCP initiatives within each of the four “Pillars” and in turn contain a link to the underlying original documents of interest so you may read what was actually written.

Thursday, November 5, 2020: OFCCP’s “New Gold Standard” in Resolving Potential Discrimination

OFCCP announced at the National Employment Law Institute’s 39th annual Affirmative Action Briefing (see above story) that it will soon publish a Final Rule titled “Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination.” OFCCP senior staffers informally describe the Rule among themselves as the “PDN Rule.” PDN is a reference to a “Pre-Determination Notice.” This is the document this Administration revived and changed from a prior Administration and now uses to put contractors on notice that OFCCP is alleging that  the contractor is guilty of unlawful discrimination. OFCCP’s Final “PDN Rule” not only describes the use of certain documents OFCCP must now use when seeking to resolve alleged unlawful discrimination claims, but also describes a process of engagement between OFCCP and the accused Contractor as well as the substantive law OFCCP will apply. Director Leen told the NELI audience that he is incredibly proud of the Final Rule and that it will be the “new gold standard” for the Agency to use hereafter when resolving potential discrimination findings.

When OFCCP originally proposed the Rule, it solicited written comments from the public. (only 34 received in December 2019 despite the great importance of this Rule: see our story for the essential details). OFCCP invited comment on four policy issues, identified below. The Final Rule and supplementary information make up 79-pages. DE will publish in coming weeks a BLOG discussing what is new and what is important to know.  Here is a short version outlining the content of OFCCP’s Final Rule (which we expect to see in the Federal Register this week: our above embedded hyper-link copy is to the final draft OFCCP sent to the Federal Register to publish to the public):

1. Proposal: Codify procedures for two formal notices OFCCP uses when the agency finds potential violations: the Predetermination Notice (PDN) and the Notice of Violation (NOV).Outcome: The final rule “clarifies that issuance of NOVs is governed by the same evidentiary standards as issuance of PDNs; clarifies the standards OFCCP will use when determining whether to issue a pre-enforcement notice under a disparate treatment and/or disparate impact theory of discrimination; requires OFCCP to provide qualitative evidence (i.e. previously called anecdotal evidence) supporting a finding of discriminatory intent to proceed under a disparate treatment theory, subject to certain enumerated exceptions; requires OFCCP to identify the policy or practice of the contractor causing the alleged adverse impact with factual support demonstrating why the at-issue policy or practice has a discriminatory effect so as to warrant the issuance of a PDN or NOV under a disparate impact theory; requires OFCCP to explain in detail the basis for its finding (including, if applicable and as described further below, the reasons for any lack of qualitative evidence) and obtain the Director’s (or acting agency head’s) approval to issue a PDN or NOV; and provides that, upon the contractor’s request, OFCCP will provide the model and variables used in its statistical analysis and an explanation for any variable that was excluded from the statistical analysis.” (pg 31-32)
2. Proposal: Clarify that contractors have the option to expedite OFCCP’s standard resolution procedures for discrimination findings and other “material violations” (not defined) by entering directly into a Conciliation Agreement before issuance of a PDN or NOV, including use of a so-called “expedited conciliation option.” This accelerated option involves the use of (new to this Administration) “ERPs” (Early Resolution Procedures”) and ERCAs (Early Resolution Conciliation Agreements) which OFCCP has been using for the last few years on an informal basis.
   
   Outcome: New section 60-1.33(d) Expedited Conciliation Option. The option to bypass the PDN and NOV procedures to enter directly into a conciliation agreement when there are preliminary findings of material violations, regardless of whether those violations involve discrimination.In a reversal from its proposal, which had sought to codify the use of ERPs and ERCAs,  OFCCP stopped short of hardening their use into the Final Rule:  “While the Department fully endorses use of ERP and ERCAs as an expedited conciliation option, and the agency intends to continue using this option where a contractor is interested, it declines to codify the procedures at this time.”(p. 46)
3. Proposal: Addition of two definitions, “Nonstatistical evidence” and “Statistical evidence.”Outcome: In response to comments on the proposed definitions, the Agency revised the terms to “qualitative evidence” and “quantitative evidence,” respectively, and provides additional clarifying language to address commenters’ issues. (p. 9)

• “Qualitative evidence” (previously “anecdotal evidence”) is defined to include the various types of documents, testimony, and interview statements that OFCCP collects during its compliance evaluations relevant to a finding of discrimination and clarifies the purposes for which it will be used.
• “Quantitative evidence” is the support needed for OFCCP to determine that there is a statistically significant disparity in a contractor’s employment selection or compensation outcomes affecting a group protected under OFCCP’s laws. The definition of “quantitative evidence” includes quantitative analyses, such as cohort analyses, which compare similarly situated individuals or small groups of applicants or employees that are numerical in nature but do not use hypothesis testing techniques.

“OFCCP will issue a PDN or NOV only if there is quantitative (i.e., statistical or other numerical) evidence, practical significance, and qualitative evidence. The broader definition of quantitative evidence means that OFCCP does not necessarily need statistical evidence.” (p. 10)

4. Proposal: Replace outdated references of OFCCP’s agency head’s official title from “Deputy Assistant Secretary” to “Director.”Outcome: No comments received; the title is now officially “Director.”

Friday, November 6, 2020: The October Employment Situation Shows Slight Improvements

As stated by U.S. Secretary of Labor Eugene Scalia, “The strong economic rebound continues, with approximately 900,000 private-sector jobs gained back in September and again in October, and the October unemployment rate dropping a full point, to 6.9 percent.  Labor force participation increased, and Asian, Black, and Hispanic Americans all saw substantial decreases in unemployment…” and women (20+) currently enjoy the lowest unemployment rate at 6.5%.

The Employment Situation – October 2020

Mark Your Calendar – Happening THIS week!

There are many events and resources for Veterans and Caregivers Month! See the U.S. Department of Veterans Affairs website for a full calendar of activities.

245th U.S. Marine Corps Birthday

As the 245th Marine Corps birthday draws near, Gen. David H. Berger reminds us how the Corps’ legacy lives on in every Marine. Join us in celebrating the U.S. Marine Corps on November 10th!

2020 HIRE Vets Medallion Awards ceremony!

The OFCCP announced an open invitation to this year’s HIRE Vets Award ceremony.

• Tuesday, November 10, 2020, @ 1:00 PM (Eastern Time)
• Register for the event, which will be live-streamed on the USDOL YouTube page.

What You Need to Know about Hiring Military Spouses

The Women’s Bureau announced it will honor Veterans Day and National Veterans and Military Families Month with a live virtual event. The webinar will offer insights into best practices for how employers can connect with military spouses and veterans. Moderated by Director Laurie Todd-Smith, Ph.D., the discussion will answer essential questions for employers and open the door to resources offered through the U.S. Department of Labor, Hiring Our Heroes, and iRelaunch.

• Tuesday, November 10, 2020, 2:30 – 3:30 PM (Eastern Time)
• Log-In to join

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.