OFCCP Week In Review: November 16, 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:

• EEOC To Revise Compliance Guidance on Religious Discrimination
• Creating Inclusive Apprenticeships – National Apprenticeship Week
• NLRB Sets Standards for Mail-In Ballot Process Due to COVID-19
• Congrats to the 675 HIREVets Medallion Recipients!
• OFCCP Final “PDN Rule” Now Final
• The Weight of Honor: The Story of Military Caregivers
• Thank You For Your Service, Veterans!
• What to Expect with the Latest Governmental Initiatives Following the 2020 Election

Monday, November 9, 2020: EEOC To Revise Compliance Guidance on Religious Discrimination

The U.S. Equal Employment Opportunity Commission (EEOC) announced that by a vote of 3-2, the Commission will publish a proposed update to its Compliance Manual Section on Religious Discrimination for public comment. This section of the Manual provides guidance on how Title VII of the Civil Rights Act of 1964 protects individuals from religious discrimination in the workplace and sets forth the legal protections available to religious employers.

Reasons for Revisions

The current version of the Manual, last updated in 2008, does not reflect recent legal developments and emerging issues. Since 2008, several court cases have altered the legal landscape. The revisions will include updates to the discussion of protections for employees from religious discrimination in the context of reasonable accommodations and harassment. It also will expand the discussion of defenses that may be available to religious employers.

“I am heartened by the result of today’s meeting and the opportunity to inform the public about a topic that appears likely to generate a lot of interest in the near future. As the agency responsible for enforcing Title VII, it is imperative that we stay at the forefront of these issues to ensure compliance with the law,” Chair Janet Dhillon said.

The Agency will soon post a recording and transcript of the Commission meeting on its website.

Monday, November 9, 2020: Creating Inclusive Apprenticeships – National Apprenticeship Week

The U.S.Department of Labor hosted the sixth annual National Apprenticeship Week (NAW) to celebrate apprenticeship successes across the country. See the press release and Presidential Proclamation.

In recognition of NAW, Carolyn Jones and Lydia Parenteau, Policy Advisors in the Office of Disability Employment Policy (ODEP), released a blog titled “Inclusive Apprenticeships: Connecting Employers and Career Seekers“

In the blog, Jones and Parenteau highlight the ODEP-funded Apprenticeship Inclusion Models initiative, which focuses on apprenticeship and pre-apprenticeship programs that provide skills training to youth and adults with disabilities in high-demand, high-wage industries. Also discussed is Universal Design for Learning principles, workplace accommodations, and inclusive workplace technologies.

Monday, November 9, 2020: NLRB Sets Standards for Mail-In Ballot Process Due to COVID-19

The National Labor Relations Board (NLRB) announced a *decision that provides the Regional Directors with updated guidance to use to determine the appropriate election method to be used in light of the unique COVID-19 circumstances. The decision outlines six situations related to the COVID-19 pandemic that, when one or more is present, will generally suggest the appropriateness of conducting an election by mail rather than manual ballot.

The NLRB’s longstanding policy strongly favors manual elections. However, since the onset of the COVID-19 pandemic, the Board has permitted mail-ballot elections under an “extraordinary circumstances” exception to the manual ballot preference. Since March, approximately 90 percent of NLRB representation elections have been conducted by mail. The Board has approved the Agency’s Regional Directors’ decisions to conduct these elections by mail, recognizing the pandemic’s unique concerns.

The six circumstances include the following.

1. The Agency office tasked with conducting the election is operating under “mandatory telework” status.
2. Either the 14-day trend in the number of new confirmed cases of COVID-19 in the county where the facility is located is increasing, or the 14-day testing positivity rate in the county where the facility is located is 5% or higher.
3. The proposed manual election site cannot be established in a way that avoids violating mandatory state or local health orders relating to maximum gathering size.
4. The employer fails or refuses to commit to abide by GC Memo 20-10, Suggested Manual Election Protocols.
5. There is a current COVID-19 outbreak at the facility, or the employer refuses to disclose and certify its current status.
6. Other similarly compelling circumstances.

The Board will apply the new guidance retroactively, and therefore, remanded Aspirus to the Regional Director in light of the factors outlined in this decision.

* The case is Aspirus Keweenaw, 18-RC-263185, 370 NLRB No. 45 (2020).

Tuesday, November 10, 2020: Congrats to the 675 HIREVets Medallion Recipients!

U.S. Secretary of Labor Eugene Scalia, VETS Assistant Secretary John Lowry, and Sgt. Maj. of the Army Michael Grinston hosted a virtual ceremony recognizing the 2020 HIRE Vets Medallion Award recipients.

The Honoring Investments in Recruiting and Employing American Military Veterans Act of 2017 (HIREVets Act), signed by President Trump on May 5, 2017, created a program that recognizes employer efforts to recruit, employ, and retain veterans.

Employer-applicants meeting criteria established in the Rule receive a “HIREVets Medallion Award.” There are different awards for large employers (500-plus employees), medium employers (51-499 employees), and small employers (50 or fewer employees). Additionally, there are two award tiers: platinum and gold.

This year, there are 675 award recipients, including 217 repeat recipients from last year and 58 who have now received the award three years in a row – since the inception of the program. This year also boasts a 60% increase in participants over last year from 49 states and the District of Columbia. There are an estimated 160,000 – 200,000 transitioning veterans each year, and the HireVets recipients (combined) boast nearly 37,000 veteran hires!

Congratulations to all of the winners, and thank you for all you do to employ our veterans!

The next application window for the HIREVets Medallion Award is January 31, 2021, through April 30, 2021, with the award recipients announced before Veterans Day.

Tuesday, November 10, 2020: OFCCP Final “PDN Rule” Now Final

The Office of Federal Contract Compliance Programs (OFCCP) announced (again) a new 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.”

The Public Inspection File link published last week is no longer valid (FYI, it received 118 views), and the Final Rule is now officially published in the Federal Register. There are no changes to report.

Get up to speed on this Final Rule by reading our previous stories below, and an in-depth blog is in the works!

• Thursday, November 5, 2020: OFCCP’s “New Gold Standard” in Resolving Potential Discrimination
• Monday, December 30, 2019: OFCCP Issued a Proposed Rule

Tuesday, November 10, 2020: The Weight of Honor: The Story of Military Caregivers

We take the month of November to recognize the more than 90 million Americans who care for loved ones with chronic conditions, disabilities, disease, or the frailties of old age. Of that group, 5.5 million are military and veteran caregivers; the spouses, parents, family members, and friends who care for America’s wounded, ill, or injured warriors. These hidden heroes provide invaluable service to the nation, but their unique journeys are not always well understood.

The Caregiver Action Network (CAN) began promoting national recognition of family caregivers in 1994. President Clinton signed the first NFC Month Presidential Proclamation in 1997, and every President since has followed suit by issuing an annual proclamation recognizing and honoring family caregivers each November. (See President Trump’s 2020 Proclamation).

For many, America’s wounded servicemembers’ story is a reminder of the perils of war and the uncertainty that exists for those individuals serving our country. What about the story of the resilient men and women who take on the role of nurse, caregiver, and medical advocate after wounded loved ones return home? We may assume that these caregivers are military spouses, who are often recognized for their endless sacrifices to support their partners throughout their service. In many cases, these spouses do become caregivers, which drastically shifts the dynamic of the relationship. However, in many cases, caregivers are actually the parents, siblings, or “battle buddies” of their loved veterans.

It’s entirely fitting that the release of DirectEmployers podcast, DE Talk: Season Two, Episode Three, gets real and raw with the interview of Stephanie Howard, the executive producer, director, and writer of the documentary film, “The Weight of Honor.” This one-of-a-kind documentary film sheds light on the underserved community of 1.1 million post-9/11 military caregivers.

Wednesday, November 11, 2020: Thank You For Your Service, Veterans!

The History of Veterans Day

World War I, known as “The Great War,” officially ended with the Treaty of Versailles, signed on June 28, 1919, in the Palace of Versailles outside Versailles, France. However, the fighting actually ceased seven months earlier when an armistice, or temporary cessation of hostilities, between the Allied nations and Germany went into effect on the eleventh hour of the eleventh day of the eleventh month. For that reason, November 11, 1918, is generally regarded as the end of “the war to end all wars.”

On October 8th, 1919, President Dwight D. Eisenhower issued the first “Veterans Day Proclamation,” which stated:

“In order to insure proper and widespread observance of this anniversary, all veterans, all veterans’ organizations, and the entire citizenry will wish to join hands in the common purpose. Toward this end…. I am also requesting the heads of all departments and agencies of the Executive branch of the Government to assist the National Committee in every way possible.”

President Eisenhower signing HR7786, changing Armistice Day to Veterans Day. From left: Alvin J. King, Wayne Richards, Arthur J. Connell, John T. Nation, Edward Rees, Richard L. Trombla, Howard W. Watts

Veteran Day Shout-outs & Resources

• EEOC Chair Janet Dhillon released a statement in honor of Veterans Day.
• OFCCP honored Veterans Day by spotlighting its Veteran Resources.
• The U.S. Census honored Veterans Day with a wealth of veteran-related statistics.
• The U.S. Wage & Hour Division issued “How the Wage and Hour Division Serves our Veterans.”

DirectEmployers would like to take the opportunity to recognize its Veterans, and for DE Members, all of the Veteran Resources available to you!

Friday, November 13, 2020: What to Expect with the Latest Governmental Initiatives Following the 2020 Election

The Indiana Industry Liaison Group “Indy ILG” held its quarterly meeting providing attendees with updates from Brien Shoemaker of the EEOC and David Smith from the Indianapolis OFCCP office.

Guest speaker, John Fox, provided an in-depth analysis of “What to Expect with the Latest Governmental Initiatives Following the 2020 Election.” Covering topics including:

• How The Transition Will Physically Work
• The Biden Policy Agenda For His First Two Years Requires The Senate To Be Democrat Controlled
• 2020 Democratic Party Platform
• The Hullabaloo Over Executive Order 13950
• OFCCP’s Current Compliance Evaluation Jungle
• Craig Leen’s 4 “Pillars”: The Strategic Plan (Bonus here – each item under each pillar has a link to the relative story with details from our Week In Review)
• California Will Require Pay and Hours Worked Data Confidentially Reported In A New EEO-1 Component 2 “Look-A-Like” Reporting Law

OFCCP Staffing Updates in the Midwest

David Smith of the OFCCP announced that he was recently promoted to District Director of the Indianapolis District Office (to which the St. Louis, Omaha and Kansas City Area Offices report). David also announced that Margaret Kraak (currently the Acting Branch Chief for Quality Assurance in the National Office) will assume the Midwest Deputy Regional Operations Director role at the end of this month. Congrats to both!

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.