OFCCP Week In Review: January 19, 2021

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:

• Opinion Letter Issued on the Scope of Legal Protections for Religious Liberty
• Negotiation Impasse Among Top Issues Requesting Ombud Service
• The EEOC Announced Dates for Three EEO Survey Data Collections
• Focused Review Survival Grid with New AAP Page
• DE Talk Podcast: Leverage Your Strengths with CliftonStrengths Finder
• Comment Now on the Registration & EEO in Apprenticeships Program
• Religious Discrimination in Employment – Report Released
• EEOC Final Rule on Its Conciliation Process Moves in the Direction of Employers, but is Ultimately Disappointing
• OFCCP Reveals Top Five Violations from Disability Focused Reviews
• EEOC Opinion Letter: No OWBPA Disclosures Required to Non-U.S. Citizens Outside the United States
• Clarity on EEOC’s Authority to Intervene in Litigation and Approve Amicus Curiae Recommendations
• Biden Transition Team Floats Trial Balloon: Jenny Yang for OFCCP Director?
• EEOC Director of State, Local, and Tribal Programs Appointed
• Three New FLSA Opinion Letters from WHD
• EEOC Revised Compliance Manual Section on Religious Discrimination

Friday, January 8, 2021: Opinion Letter Issued on the Scope of Legal Protections for Religious Liberty

The Office of Federal Contract Compliance Programs (OFCCP) quietly issued an Opinion Letter (the first since November of 2019) responding to an organization requesting clarification about the scope of legal protections for religious liberty in the workplace. In particular, the requesting organization stressed its “strong interest in ensuring that Jewish Americans are free to practice their faith in the workplace.” In addition, the organization stated its concern “that employees in the technology, education, public, and other sectors may face discrimination at work based on faith-related activities and beliefs.”

The Letter describes six possible religious discrimination scenarios, all of which would be violations of 41 C.F.R. 60-50, the Guidelines on Discrimination Because of Religion or National Origin.

The letter does not, however, address the possible collision of asserted religious freedoms with other asserted civil rights (i.e., a religious employer taking adverse action against a gay, lesbian or transgender applicant or employee.) Nonetheless, the letter provides an explanation about how OFCCP would address such a collision of rights by noting that the religious employer would be exempt from the EEO clause (thus not making the discrimination “unlawful”) in the following circumstances:

“However, Executive Order 11246 exempts any contractor or subcontractor that is a religious corporation, association, educational institution, or society from the equal opportunity clause with respect to the employment of individuals of a particular religion. In addition, the Religious Freedom Restoration Act may require an exemption or accommodation for a contractor under Executive Order 11246. Furthermore, the ministerial exception, a judicially recognized exemption grounded in the First Amendment, bars employment discrimination suits on behalf of employees who work at religious institutions in positions deemed to be “ministerial” based on all relevant circumstances.”

Monday, January 11, 2021: Negotiation Impasse Among Top Issues Requesting Ombud Service

OFCCP announced the release of the 2020 Ombuds Service Annual Report, its first such report. The 30-page report, compiled by Ombudsman Marcus Stergio, describes how the OFCCP Ombuds Service works, gives a breakdown of the issues uncovered through the use of the service, analyzes trends, and wraps up with recommendations.

The Referrals

Fiscal Year 2020 brought in a total of 128 “referrals” for the assistance of the Ombuds Service from a variety of sources.

The columns “open” and “closed” display the numbers as of the conclusion of FY 2020, corresponding to the quarter in which received.

The Issues

Not surprisingly, those hitting an impasse in the negotiation process were the most frequent Ombuds help users.

The Recommendations

In response to the trend analysis of the primary and secondary issues, Marcus proposed the following recommendations for the Agency:

• Setting Expectations for a Complainant
• OFCCP Field Officers can (and should) use the Ombuds Service
• Ensuring Compliance
• Conflict Resolution Training
• Addressing Bias

We reached out to Marcus and asked, “You give several recommendations after identifying the trends in the past year. How has your feedback been received at the National Office, and which, if any, of these recommendations do you feel will be proactively addressed in the near future?”

Marcus graciously responded to us:

“The goal of the annual report is to present the numbers, share how I interpret those numbers, and provide recommendations accordingly. From there, I want people to make their own interpretations, and that’s why it’s important to me that the report itself is only the beginning of a longer conversation. So far, I’ve been pleased to see that not only the National Office but field offices too have been receptive to my recommendations. Discussion has already taken place about properly setting expectations, ensuring compliance, and how field offices can more frequently utilize the Ombuds Service. I look forward to having similar conversations about the report with external stakeholders so that their own questions, concerns, and reactions can be accounted for as I continue to advocate for fair and efficient processes at OFCCP.”

To request his participation or make an Ombuds Service referral, please contact Marcus Stergio at stergio.marcus@dol.gov.

Tuesday, January 12, 2021: The EEOC Announced Dates for Three EEO Survey Data Collections

The U.S. Equal Employment Opportunity Commission (EEOC) announced the opening in 2021 of the 2019 EEO-1 Component 1 and the 2020 EEO-3 and 2020 EEO-5 Reports/Surveys. You may recall that the EEOC on May 8, 2020 delayed these Surveys and Reports in light of the COVID-19 public health emergency.

Here is the EEOC’s new timeline for filing:

• April 2021 for2019 and 2020 EEO-1 Component 1 Data Collection (Private Sector Employers)
• July 2021 for 2020 EEO-5 Data Collection (Public Elementary/Secondary School Districts)
• August 2021 for 2020 EEO-3 Data Collection (Local Referral Unions)
• October 2021 for 2021 EEO-4 Data Collection (State/Local Governments)

The EEOC has promised to announce (via its website and the data collection site) the exact opening and deadline dates of its collection portals. No timeline has yet been set for this announcement.  The EEOC has however promised to send eligible filers a notification letter.

Tuesday, January 12, 2021: Focused Review Survival Grid with New AAP Page

OFCCP announced yet another new “landing page” on its website. This latest page describes the agency’s newest investigative tool which OFCCP is calling the “Affirmative Action Program (AAP)” Focused Review. This Focused Review replaces the Focused Review OFCCP previously announced to investigate Diversity and Inclusion programs pursuant to the now defunct Executive Order 13950.  Here is how OFCCP describes what is now coming:

“While still limited compared to full compliance evaluations, AAP focused reviews have a broader scope than compliance checks and include the full review of a contractor’s AAPs and support data under Executive Order 11246, Section 503, and VEVRAA. They also include an on-site (virtual or physical) and compliance assistance such as best practices in developing an AAP. If OFCCP finds AAP and/or recordkeeping violations, the focused review can conclude in a conciliation agreement between OFCCP and the contractor. In addition, if OFCCP finds widespread or serious violations, the focused review may expand into a full compliance evaluation.”

What’s the Scoop On All of the Focused Reviews?

The Agency released DIR 2018-04 in August of 2018, announcing that it was preparing to establish three types of Focused Reviews, one for each set of regulations (Section 503, VEVRAA, EO11246). Since then, we have witnessed a flurry of activity creating and defining various types of Focused Reviews. See below to catch up.

Tuesday, January 12, 2021: DE Talk Podcast: Leverage Your Strengths with CliftonStrengths Finder

It’s a new year and the perfect time to concentrate on self-improvement, and we’re here to help you do just that! Instead of focusing on your weaknesses, JoDee Curtis from Purple Ink LLC shares how the CliftonStrengths assessment (workshop coming soon in DE Academy!) can help you identify your strengths and put those essential skills to work for you in 2021.

If professional development is on your to-do list for 2021, be sure to check out this episode so you can explore how to name, claim, and aim your strengths. Learn how to turn your workplace from a weakness-fixing to a strengths-based culture while creating the roadmap to becoming your best self. Listen on our website using Spotify, or via your preferred podcast provider.

Wednesday, January 13, 2021: Comment Now on the Registration & EEO in Apprenticeships Program

The Department of Labor’s (DOL) Employment and Training Administration (ETA) issued a Notice, technically known as an “Information Collection Request” (“ICR”), to allow it to gather more information about certain apprenticeship programs and metrics. This ICR requests the public to comment on a proposed revision to ETA’s authority to collect data concerning the registration of apprenticeship programs and apprentices with DOL/ETA’s Office of Apprenticeship and recognized State Apprenticeship Agencies. ETA also seeks information to help it properly assess the types of sponsors that are seeking to register an apprenticeship program and the level of growth in apprenticeship. ETA also wishes to collect the data necessary to calculate national registered apprenticeship program and apprentice totals, and implement the requirements of the Veterans Apprenticeship and Labor Opportunity Reform (VALOR) Act (Pub. L. 115-89). ETA also hopes this ICR will continue to enable ETA to collect data from registered apprenticeship programs relating to equal employment opportunity, and from applicants and/or apprentices, who file a discrimination complaint.

Proposed Revisions

• ETA also wants to change the name of its Rule from “Title 29 CFR Part 29—Labor Standards for the Registration of Apprenticeship Programs” to the “Registration and Equal Employment Opportunity in Apprenticeship Programs” (emphasis added) to reflect the collection of information contained in this revised ICR;

  Note: See more on Equal Employment Opportunity in Apprenticeships in 29 CFR Part 30

• Modifications to ETA Form 671 (Program Registration and Apprenticeship Agreement);
• The addition (with minor modifications) of the information collection requirements currently approved under OMB Control Number 1205-0224 (titled “Equal Employment Opportunity in Apprenticeship Training”), including ETA Form 9039 (Complaint Form—Equal Employment Opportunity in Apprenticeship Programs); and
• The addition of an information collection via a new form (ETA Form 9186: State Apprenticeship Agency (SAA) Self-Assessment Report for Program Data and Apprentice Demographics) which applies to state program and apprentice registration

Note: Comments must be mailed (no on-line submissions) and received by March 15, 2021, to be considered.

Wednesday, January 13, 2021: Religious Discrimination in Employment – Report Released

EEOC General Counsel Sharon Fast Gustafson and Commissioner Andrea Lucas announced the release of “Religious Discrimination in Employment: General Counsel Listening Sessions Final Report.” This 17-page report summarizes the dialogue sessions on religious discrimination the EEOC hosted in November and December 2020. During these sessions, stakeholders (listed in Appendix A of the Listening Session Report) shared thoughts on how the EEOC can improve its development and litigation of religious discrimination claims.

The Listening Session Report includes examples from participants of religious discrimination in the workplace that their members or clients experience, their experiences working with the EEOC on religious discrimination issues, the lack of awareness about religious discrimination rights and obligations, and the need for training and guidance.

The Listening Sessions coincided with the Commission’s post for public comment of its updated Compliance Manual Section on Religious Discrimination. See our WIR 11/9/20.

“We thank those who participated representing a rich diversity of religions—Buddhist, Christian, Hindu, Jewish, Muslim, and Sikh, to name a few,” said General Counsel Gustafson. “Participants candidly shared their experiences with religious discrimination in the workplace. We are motivated by their experiences to redouble our efforts to prevent and remedy religious discrimination in the workplace.”

The Religious Discrimination Work Group, comprised of EEOC attorneys, the deputy direc­tor, investigators, data analysts, and training and outreach liaisons from various EEOC offices across the country, conducted the listening sessions. The EEOC established this Work Group in May of 2020.

Thursday, January 14, 2021: EEOC Final Rule on Its Conciliation Process Moves in the Direction of Employers, but is Ultimately Disappointing

As we reported last week, the EEOC has now published its Final Rule on its Conciliation Process. The comment period closed on November 9, 2020. The 13-page document addressed the comments the agency received and the final (minimal) changes the Commission made to its Proposed Rule.

In the end, it was significant that the Commission moved the Commission staff and lawyers half way down the path by requiring the EEOC to make detailed written (but only) initial disclosures of position. However, it is disappointing to employers that the Commission now continues to allow subsequent rounds of negotiation to only permissively be in writing (they may be only oral in the Commission’s discretion) and to only permissively allow a Commission response to the employer and only permissively to contain the details of the Commission’s new understanding of the relevant facts and pertinent law.

It continues to be troubling to employers that Commission staff does not intuitively and immediately appreciate the need to be detailed and transparent at each turn of the bargaining if the parties wish to understand and eliminate differences in position and come to a reasoned and defendable conclusion. “Pig-in-the-poke” bargaining is rarely satisfying or acceptable to General Counsels, Senior HR Managers and CEOs and only breeds corporate scorn and contempt for the Commission as engaging haphazardly through the process.

The Commission’s Rule continues the Commission and employers on their existing course to fail to successfully conciliate in a large percentage of contested EEOC Charge investigations, especially systemic or other complex investigations.

Here is a taste of the Commission’s attitude underscoring streamlined, quick, simple and aloof negotiations in a hard put-down of employer pleas of EEOC detailed engagement and transparency:

“As the Supreme Court made clear in Mach Mining, Congress afforded the Commission wide latitude to pursue voluntary compliance with a statutory provision, “every aspect” of which “smacks of flexibility.” Mach Mining, 575 U.S. at 492; 42 U.S.C. 2000e-5(b). And like the Supreme Court in that case, the Commission declines to infuse the conciliation process with a rigid code of rules that handcuffs the agency by limiting the broad strategic leeway Title VII affords to it to execute its mission. See Mach Mining, 575 U.S. at 492 (rejecting the petitioner’s “proposed code of conduct” and “bargaining checklist” because “Congress left to the EEOC such strategic questions about whether to make a bare-minimum offer, to lay all its cards on the table, or to respond to each of an employer’s counter-offers, however far afield.”). The Commission meets its statutory obligation by providing the basic factual and legal information for the respondent to evaluate the claim and identify the discriminatory action or practice. But once this is accomplished, the Commission retains “discretion over the pace and duration of conciliation efforts, the plasticity or firmness of its negotiating positions, and the content of its demands for relief.” Id. The Commission declines to adopt such proposals because they damage the flexibility critical to its ability to conciliate claims without any concomitant benefit.”

This passage misses the point that the discussion is less about what the Commission “may do” within the boundaries of its mandate from Title VII, but rather it is about what the best course of action is for the Commission and employers to help them amicably resolve disputed Charges from among the choices available to the Commission and given the discretion Title VII makes available to it.

EEOC Rules of Engagement of Note

The EEOC’s initial disclosure of its claim will be in writing, but subsequent offers and counter offers may be oral and need not have any accompanying explanation or detail. That remains true even if the employer’s response to the Commission’s initial claim(s) sets the Commission off on an entirely new course of factual claims and law allegedly supporting that new Commission claim of liability and/or damages. Here are the guts of the seminally important disclosure matter:

1601.24 Conciliation: Procedure and authority.

*   *   *   *   *

“(d) In any conciliation process pursuant to this section, after the respondent has agreed to engage in conciliation, the Commission will:

• 1. …provide the respondent with a written summary of the known facts and non-privileged information that the Commission relied on in its reasonable cause finding, including identifying known aggrieved individuals or known groups of aggrieved individuals for whom relief is being sought, unless the individual(s) has requested anonymity.

     *     *     *     *     *     *     *     *     *     *     *     *

  2. …provide the respondent with a written summary of the Commission’s legal basis for finding reasonable cause, including an explanation as to how the law was applied to the facts. In addition, the Commission may, but is not required to, provide a response to the defenses raised by respondent;
  3. Provide the respondent with the basis for monetary or other relief, including the calculations underlying the initial conciliation proposal and an explanation thereof in writing. A written explanation is not required for subsequent offers and counteroffers;
  4. …if there is a (Commission) designation at the time of the conciliation, advise the respondent in writing that the Commission has designated the case as systemic, class, or pattern or practice as well as the basis for the designation;”

The Rule will become effective on February 16, 2021. It will apply to charges as to which the EEOC has sent a Letter of Determination inviting the employer to engage in conciliation.

Backstory

• Thursday, January 7, 2021: EEOC Shuts Down Democrat Commissioners’ Objections to More Transparent Commission Conciliation Negotiations with Respondent Employers
• Thursday, December 31, 2020: EEOC Announces It will Hold Its First Commission Meeting of 2021
• Tuesday, August 18, 2020: EEOC Republican Commissioners Vote for Transparency; Lone Democrat Commissioner Dissents

Thursday, January 14, 2021: OFCCP Reveals Top Five Violations from Disability Focused Reviews

“The full inclusion of people with disabilities is something everyone should be working towards…make this a focus!” These were the words of wisdom OFCCP Director Craig Leen passionately passed along during his final (see our story “OFCCP Director Craig Leen Timed Out: Does Not Make it to OPM“) stakeholder call to review the first-ever Section 503 Focused Review Annual Report.

OFCCP released the 22-page report, which includes an overview of the Program, the results to date, best practices, and contractor recognition.

At pages 3 to 4, OFCCP’s Annual Report highlights a nine-point commitment to disability OFCCP recommends (i.e., “Best Practices”) to the 25,000 federal contractor community to help move it to a minimum of 7% employment of individuals with disabilities in their workforces. Checkout OFCCP’s 9-point list and compare it to your company’s practices!

Director Leen also pointed out that the Agency provides everything a company needs to do (and should do in the agency’s opinion) to conduct a self-audit. See the Sample Section 503 On-site Guide located on the Section 503 Focused Review landing page.

Disability Utilization Goal Findings

OFCCP did not identify any contractors that met the 7% utilization goal in all of their job groups. However, a “majority” met, or exceeded, the 7% goal in at least one job group, and eight contractors met the goal in more than 50% of their job groups.

Four contractors subject to audit had a workforce-wide goal (those with 100 or fewer employees measure workforce-wide, see §60-741.45 Utilization goals). Two of those contractors exceeded the 7% goal in their company.

The top 5 violations OFCCP found were:

1. Failure to conduct appropriate outreach and positive recruitment of individuals with disabilities that were reasonably designed to effectively recruit qualified individuals with disabilities;
2. Failure to invite applicants and employees to self-identify as an individual with a disability;
3. Failure to document the computations or comparisons pertaining to applicants and hires, as described in 41 CFR 60-741.44(k), or, if documented, to maintain these data for three (3) years;
4. Failure to design and implement an acceptable audit and reporting system which measured the effectiveness of its affirmative action program; and
5. Failure to develop and submit acceptable Section 503 AAPs and support data.

The report goes on to discuss best practices, including Director Leen’s recommendation that companies hire a Chief Accessibility Officer, use job coaches and allow remote work (now quite common, of course during the pandemic).

Finally, the report showcases the two EDI award winners, CVS Health and PepsiCo, and links to these organizations’ successful disability programs. There is also a section in the report titled “Certificates of Merit.” Although this section is currently blank, Director Leen stated there are10 or 11 organizations that stood out during the course of these reviews. The Agency will recognize these companies soon.

Final Words/Swan Song

Director Leen took a few moments at the end to express his final thoughts on his three + years at OFCCP. He cautioned concerning the rising popularity of Artificial Intelligence (AI) in hiring. He did not discourage the use of AI, but instead expressed concern for its potential to discriminate against people with disabilities. You may recall our previous story, also on this topic from Tuesday, December 8, 2020: Nine Democrat Senators Ask The EEOC To Investigate Hiring Processes Using Artificial Intelligence Tools.

“If there is one thing I’m remembered for, I hope it is this,” (referring to the Section 503 Focused Reviews and OFCCP’s emphasis during his administration on disability inclusion).

Thursday, January 14, 2021: EEOC Opinion Letter: No OWBPA Disclosures Required to Non-U.S. Citizens Outside the United States

The EEOC announced a new Opinion Letter:

Employers subject to the requirements of the Age Discrimination in Employment Act of 1967 (ADEA) are not required to include the Older Workers Benefit Protection Act (OWBPA) in disclosures to employees working outside the United States who are not U.S. citizens.

Rationale: Such individuals are not “employees” for purposes of the ADEA. The EEOC’s Letter explains that the OWBPA requires that only “covered employees” within the applicable “decisional unit” must be included in an OWBPA disclosure.

Relevant Regulations: Section 7 of the ADEA and the Commission’s Regulations, including 29 C.F.R. § 1626.21. 

Thursday, January 14, 2021: Clarity on EEOC’s Authority to Intervene in Litigation and Approve Amicus Curiae Recommendations

The EEOC announced it approved a Resolution concerning the Commission’s authority to commence or intervene in litigation (3-2 vote) as well as Revised Procedures for Commission approval of amicus curiae participation (5-0 vote).

What’s up? Why is this a 3-2 vote along Republican/Democrat party lines, and why did this need to be done now less than a year since the Commission last modified its rules of engagement as to how the EEOC General Counsel will undertake litigation? The effect of the Resolution is to return power to the full Commission to go forward with litigation of most significant matters and to divest the Chair of the Commission of authority to exercise discretion over a broad range of litigation issues and Complaints which will now automatically go to the full Commission for review.

Title VII gives the Commission the authority to commence or intervene in litigation against private-sector employers to enforce the nation’s employment discrimination laws. The revised litigation delegation, last modified March 10, 2020, maintains the existing categories of litigation which the Commission must approve. However, for cases that do not fall under the identified categories, the revised delegation requires the General Counsel to transmit the case to all Commissioners for a five business-day review period and not, as previously, to just the EEOC Chair to consider whether to involve the entire Commission. A majority of Commissioners may then decide if the case should be submitted for a vote before the General Counsel may file a Complaint in a federal District Court. For more information, see the “What You Should Know” document.

Policy Drivers Underlying the New Resolution

• The Biden Administration is coming to town this week.
• Title VII gives the President of the United States the right to designate a Chair of the bi-partisan EEOC to be of his party, even if a majority of the Commission’s five seats are otherwise held by the other party—as will be the case when President-elect Biden is sworn in as the President.
• So, the three Republican Commissioners are getting ready to control Commission litigation policy for the remainder of their control of the Commission (presumably through mid-2022 at the Commission level, assuming none of the three Republican Commissioners quit before then, or die in office).
• What me worry? Republican Commissioners are worried about the Commission’s litigation strategy in a Biden Presidency since it is shaping up to be run largely by the senior managers of the Obama-Biden Administration: Obama-II as many are calling it. (The Biden Administration might therefore be one of the most experienced groups of “old hands” political appointees the White House has ever seen). But, the Obama-Biden Administration EEOC litigation strategy which ended four years ago nearly ran off the rails with avant-garde Title VII stretching “test case” litigation which did not go well for the Commission. The Commission lost many notable case decisions as it sought to stretch Title VII law interpretations. Several federal courts also ruefully ordered the EEOC to pay employers unprecedented and substantial financial damages in the way of their attorneys’ fees for frivolous and non-meritorious lawsuits. Not the EEOC General Counsel’s Office finest hour.

So, the jockeying for position has already begun at the EEOC at the starting gate even before the Biden Administration has gotten on the track, and even while a General Counsel President Trump appointed will remain in office, if she chooses not to leave earlier, until 2023.

The Commission also unanimously approved revised procedures to consider and approve amicus curiae (i.e., “friend of the Court”) briefs. (These are recommendations the Office of General Counsel makes to the Commission for the Commission to appear in the Courts, not as a party to the litigation, but to helpfully inform the Court of the EEOC’s interpretation of a statute it enforces which is before the Court in a pending case).  Just routine here. No fireworks, since the Commission GC already presents all Amicus Curiae recommendations to the full Commission. The new Amicus procedures supersede the “Revised Procedures for Obtaining Commission Approval of a Recommendation to Participate Amicus Curiae,” approved by the Commission on June 25, 1985. In eighteen (18) months, the Commission will evaluate practical experience to assess whether alterations to the procedures are warranted.

“I believe the amicus procedures adopted today will serve to elevate the significance of the Commission’s decision to weigh in on any particular case, and that the unanimous vote in favor of these procedures reflects the Commission’s bipartisan commitment to maintaining excellence in our highly regarded amicus program,” said EEOC Chair Janet Dhillon.

Friday January 15, 2021: Biden Transition Team Floats Trial Balloon: Jenny Yang for OFCCP Director?

It had all the early earmarks of the classic four-part political “trial balloon.”

First, the rumors began to swirl (two weeks ago) that the US DOL Transition Team had selected a candidate to be the next OFCCP Director.

Second, early last week, the rumors named Jenny Rae Yang as that candidate, but with uncertainty: A Member of the US DOL Transition Team and a well-known civil rights advocate and former Commissioner (appointed on August 2, 2012: President Barack Obama), and then Vice-Chair in 2014, then Chair of the EEOC from September 1, 2014 until January 25, 2017 (departed with the arrival of the Trump Administration). In 2016, Ms. Yang also announced, championed and ushered in the EEOC’s Component 2 “hours worked” and “pay data” collection from employers.  Sterling credentials to be sure as the OFCCP is slated to be “Ground Zero” in the Biden Administration’s enforcement of employment discrimination based on race, sex and ethnicity.

Third, as media inquiries then began researching the swirling rumor mill, suddenly the “unidentified sources in-the-know” (in this case from the US DOL Labor Transition Team itself) predictably appeared out of the mist and darkness and confidentially (so everyone could hear) confirmed that the US DOL Transition Team was giving “serious consideration” to Ms. Yang—but, of course, they could not talk about it or confirm this news “on the record” due to the reigning confidentiality rules of the Transition Team (but which are not sufficiently strong to stop a leak like theirs, of course. They are willing and able to be only a little bit naughty.)  Reporters on the other end of those “leak calls” always wonder: “Who is playing who?” Or is it whom? Better pull the New York Times Style-Guide on that one.  And, of course, the Transition Team then would not return press phone calls (this is also in the “trial balloon” playbook along with leaks up against a weekend), but significantly did not deny the story…another classic tell-tale sign: the DNA evidence of a trial balloon story unfolding as planned.

• What is happening now is that the Transition Team is waiting to see if it gets significant backlash from Black civil rights groups and Black spokeswomen/men influential within the Democrat Party. The expression for this kind of cautious “testing of the waters” in the military is: “Run it up the flag pole and see if anybody shoots at it.” If not, proceed to Step Four.

Fourth, in the “trial balloon” formula will be the formal announcement from the Transition Team, or Labor Secretary-nominee Walsh, that Ms. Yang has the job…if she can survive the three-day weekend without the President getting called into yet another intra-party spat among loyal Democrats.

Friday, January 15, 2021: EEOC Director of State, Local, and Tribal Programs Appointed

The EEOC announced Cheryl Mabry’s appointment to Director of State, Local, and Tribal Programs. She has held several leadership roles during her 20-year tenure at the EEOC, most recently as the Cleveland Field Office Director.

Mabry will coordinate efforts between the EEOC and more than 90 Fair Employment Practices Agencies (FEPAs). FEPAs receive and investigate discrimination claims that are dual-filed under state and local laws prohibiting employment discrimination and federal laws enforced by EEOC. In addition, she will direct the work with over 60 Tribal Employment Rights Offices (TEROs) to enhance the employment opportunities of Native Americans.

Friday, January 15, 2021: Three New FLSA Opinion Letters from WHD

The U.S. Department of Labor’s Wage and Hour Division (WHD) announced three new Opinion Letters that address compliance issues related to the Fair Labor Standards Act (FLSA). An Opinion Letter is an official, written opinion by the Department on how a particular law applies in specific circumstances presented by the person or entity that requested the Letter.

The new Opinion Letters:

• FLSA2021-3: Addresses whether certain entities satisfy the “establishment” requirement under Section 13(a)(3) of the FLSA and whether an accrual method of accounting may be used to satisfy the “Receipts Test” under Section 13(a)(3)(B).
• FLSA2021-4: Addresses whether a restaurant may institute a “tip pool” under the FLSA that includes both servers, for whom the employer takes a “tip credit,” as well as hosts and hostesses, for whom a tip credit is not taken.
• FLSA2021-5: Addresses the proper calculation of overtime pay under the FLSA for tipped employees receiving tips and amounts charged as automatic gratuities or service charges.

Friday, January 15, 2021: EEOC Revised Compliance Manual Section on Religious Discrimination

Does the news of educational materials regarding religious discrimination ever end in this Administration, and even with the finish line in sight (or maybe it is stepped-up because the finish line is in sight)?

The EEOC announced it had approved revisions to EEOC’s Compliance Manual Section on Religious Discrimination. A 3-2 vote approved the Manual. (Uh-oh…that 3-2 split vote, again! The Democrat Commissioners do not like to write about the rights of employers and also separately remain concerned about that ultimate (coming) collision of rights protecting religious liberties and Title VII’s protection of gay, lesbian and transgender applicants and employees.)

The updated guidance describes how Title VII of the Civil Rights Act of 1964 protects individuals from religious discrimination in the workplace and describes the legal protections available to religious employers.

According to the EEOC, the Manual, last updated in 2008, did not reflect recent legal developments and emerging issues. Since 2008, several U.S. Supreme Court decisions, as well as the lower courts, have altered the legal landscape, according to the Commission (just as we heard from OFCCP when it recently issued its controversial Religious Discrimination Final Rule). The revisions to the guidance include what the Commission asserts are important updates to the discussion of protections for employees from religious discrimination in the context of reasonable accommodations and harassment. The Manual also expands the discussion of defenses that may be available to religious employers.

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.