OFCCP Week In Review: February 1, 2021

• Comment Period Open for EEO-1 Comp Review Panel
• Biden Designates a New NLRB Counsel Even As An Employer Already Challenges Biden’s Firing of the Trump-era General Counsel
• Three WHD Opinion Letters Withdrawn–as Corresponding Rules Not Yet in Effect, and May Not Go into Effect
• Policy Differences Erupt: EEOC Pilot Programs End Early–Virtual Mediations Stay
• DOL “Good Guidance Rule” Goes Out the Window
• ODEP Turns 20! Look How Far We Have Come…
• Employers–You MUST Access This New Tool!
• EEOC Launches New FOIA Portal
• Stronger COVID-19 Guidance Available from OSHA
• Biden Wage-Hour Administration Sounding an Early “Enforcement” Theme: Employers Now Back on the Hook for FLSA Violations

Monday, January 25, 2021: Comment Period Open for EEO-1 Comp Review Panel

The National Academies of Sciences (“NAS”), Engineering, and Medicine provisionally appointed an ad hoc panel to review and evaluate the quality of compensation data that the Equal Employment Opportunity Commission (EEOC) was able to obtain from U.S. employers.

The 13-Member panel is comprised of various professionals with expertise ranging from economics to sociology. Thus far, this panel is heavily dominated by employee-friendly professionals, unlike the NAS panel which reported in 2012 which was evenly staffed between employer-friendly and employee-friendly professionals.

Interested parties may communicate with the NAS panel at any time over the project’s duration. However, formal comments on the provisional appointments to the committee are solicited during the 20-calendar day period following the posting of the membership.  These comments will be considered before committee membership is finalized.

Comment on the panel before February 15, 2021.

Tuesday, January 26, 2021: Biden Designates a New NLRB Counsel Even As An Employer Already Challenges Biden’s Firing of the Trump-era General Counsel

The National Labor Relations Board (NLRB) announced that President Biden designated Peter Sung Ohr as the Acting Counsel of the Board. Mr. Sung Ohr has been an NLRB employee for over 23 years.

This announcement comes on the heels of a very tumultuous first week for the Board as President Biden undertook the very controversial action to fire, in quick succession, both the then sitting General Counsel and thereafter the Acting General Counsel when she stepped up to replace the General Counsel. See our story last week (Several New Appointees (and a Termination) in the Labor World) covering these details.

Update: H&M Transportation Company, Inc has already filed an appeal to the Board from an ALJ decision handed down against H&M arguing that President Biden’s action to fire the Board General Counsel stripped the NLRB of its otherwise legal authority to prosecute unfair labor practice cases. Oh, it is starting already.

Tuesday, January 26, 2021: Three WHD Opinion Letters Withdrawn–as Corresponding Rules Not Yet in Effect, and May Not Go into Effect

The USDOL Wage and Hour Division (WHD) withdrew three Opinion Letters the Trump WHD recently issued stating, “These letters were issued prematurely because they are based on rules that have not gone into effect.” See our story last week “Day One for President Biden Included, Among Many Actions, Revoking EO 13950,” where we spotlighted the “Regulatory Freeze” of Pending Rules. Interestingly, Opinion letters a federal agency issues are supposed to interpret the Congressional statute the agency is enforcing, and not just the Rules which the agency writes to interepret and apply the at-issue statute.

Tipped Employees

The Tipped Employee Final Rule is scheduled to go into effect on March 1, 2021. As such, WHD also withdrew this recent Trump WHD Opinion Letter:

• FLSA2021-4: Addressing 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.

Independent Contractors

The Independent Contractor Final Rule is scheduled to go into effect on March 8, 2021. See John Fox’s blog “USDOL’s New Independent Contractor Final Rule is DOA, Or Is It? Not So Fast!” where he informs us that, “While the new Final Rule would give employers and workers greater flexibility to arrange their work relationships, it is unlikely to survive, absent court challenge, since President-elect Biden has already vowed to immediately retract it once he becomes President.”

As a result, the Agency withdrew the following two Opinion Letters:

• FLSA2021-8: Addressing whether certain distributors of a manufacturer’s food products are employees or independent contractors under the FLSA.
• FLSA2021-9: Addressing whether requiring tractor-trailer truck drivers to implement safety measures required by law constitutes control by the motor carrier for purposes of their status as employees or independent contractors under the FLSA, and whether certain owner-operators are properly classified as independent contractors.

Wednesday, January 27, 2021: Policy Differences Erupt: EEOC Pilot Programs End Early–Virtual Mediations Stay

The Equal Employment Opportunity Commission (EEOC) announced the conclusion of its conciliation and mediation pilots, both announced in July 2020.

According to the press release, “The Commission will incorporate into the mediation program some of the practices the agency has found useful over the past several months, including the use of video technology to hold virtual mediations whenever possible. Pilot participants generally, and employees in particular, expressed an overwhelming preference for video mediations over audio-only conferences. The EEOC will also continue to send electronic surveys to program participants who are able to respond electronically and will incorporate feedback from participants and agency mediators on how to improve virtual mediations. Finally, the parties may request mediation at any point during the administrative process.”

Editor’s Note: This story points up not just the power of the EEOC Chair position, as constituted under Title VII, to have the sole power to make decisions “for the administrative operations of the Commission”, but also that there are real differences between Democrats and Republicans as to enforcement strategies and policies. As we pointed out in our WIR story  last week, Title VII itself prescribes special powers to the EEOC Chair. In that January 20, 2021 story, we reported that President Biden had hit the ground running on Inauguration Day by announcing, among many other things, his selection of EEOC Commissioner Charlotte Burrows (D) to now Chair the Commission and Commissioner Jocelyn Samuels (D) to assume the Vice-Chair position. With that change in Commission jobs, the Democrat Commissioners have now been able to reverse the Commission’s position on the two EEOC Pilot Programs despite being outgunned 3 Republicans to 2 Democrats on the Commission. This show of force and will shows that the Democrats do still have some power on the 5-Member bi-partisan Commission, even though Burrows and Samuels can be outvoted 3-2 (and will continue to be outvoted through at least July 1, 2022) by Republicans on matters which come before the Commission. Please recall that only three weeks ago–on January 6th, (before Inauguration Day), the Commission announced it was pleased with both pilot programs designed to increase Commission transparency to employers and to hopefully resolve a greater percentage of disputed Charges on a voluntary basis. Indeed, then EEOC Chair Dhillon announced with great pleasure that the Commission was EXTENDING the two Pilot Programs through September 30, 2021 as we reported here, despite concerted opposition from Commissioners Burrows and Samuels. For more on this “running gun battle” between Republicans and Democrats, please see our prior WIR stories on this developing policy difference between “showing your cards” in mediation and conciliation vs holding that information back for use at an agency trial: December 31, 2020 (First EEOC Meeting of the Year); August 18, 2020 (Lone Commissioner Dissents). Please also recall that we have written several WIR stories too, about the OFCCP struggling with this very same policy issue, in parallel, at USDOL. The tug-of-war continues.

Wednesday, January 27, 2021: DOL “Good Guidance Rule” Goes Out the Window

On January 20, 2021, President Biden issued the “Executive Order on Revocation of Certain Executive Orders Concerning Federal Regulation,” which, among other things, revoked E.O. 13891 and directed agencies to promptly take steps to rescind any orders, rules, regulations, guidelines, or policies, or portions thereof, implementing or enforcing the Executive Orders.

Per President Biden’s Order above, the Department of Labor (DOL) now has rescinded its Final Rule “Promoting Regulatory Openness through Good Guidance Rule.”

Backstory

On August 28, 2020, the Department of Labor published a Final Rule, “Promoting Regulatory Openness through Good Guidance Rule.” See the details in our story, Decluttering the Department of Labor. The Rule was established in accordance with EO 13891, “Promoting The Rule Of Law through Improved Agency Guidance Documents.” EO 13891 required that Departments use guidance appropriately, transparently, and in a manner that is accessible to the public.

Editor’s Note:  It is not clear whether this revocation signals that the Department of Labor is now proposing to be less transparent to stakeholders than the Trump Administration and whether the Department will no longer endeavor to render its databases digitally accessible.

Thursday, January 28, 2021: ODEP Turns 20! Look How Far We Have Come…

This year, the U.S. Department of Labor’s Office of Disability Employment Policy (ODEP) celebrates 20 years since its establishment!

Jennifer Sheehy, Deputy Assistant Secretary of Labor for Disability Employment Policy at the U.S. Department of Labor, kicked off what will be a series of blogs celebrating and reflecting on the past 20 years.

Sheehy starts off her blog…

“ODEP was established by Congress in fiscal year 2001, but our roots trace back to the Presidential Task Force on Employment of Adults with Disabilities that was formed in 1998. The task force proposed and designed ODEP, establishing the interagency connections that are the hallmark of our work today. ODEP’s creation also heralded an important shift in how we talk about disability and employment in America, one focused not on whether people with disabilities can work, but rather the strategies and supports that drive the change needed to make work happen. And how do we know what those strategies and supports are? The answer lies in evidence-based data.”

Read on as Jennifer dives into the evidence-based data now available. Stay tuned for more from ODEP during this historic anniversary year!

Friday, January 29, 2021: Employers–You MUST Access This New Tool!

The Job Accommodation Network (JAN) launched the MyJAN portal on its website. The MyJAN tool allows users to save and organize resources in one location, including:

• accommodation solutions by disability,
• legal resources,
• information by topic area,
• JAN newsletter articles and more.

Users can create a free MyJAN account and then add links to JAN web pages, file them by category, include notes about the resources, and set the list and grid view order. Resources can be added, organized, and deleted at any time. The site also displays recommended and newly released JAN resources in a “Recommended Resources” tab in the portal.

Personalize and organize all your disability accommodation resources today!

Friday, January 29, 2021: EEOC Launches New FOIA Portal

The EEOC announced that effective February 1, 2021, it will begin using a new software system to receive and process Freedom of Information Act (FOIA) requests and appeals. This new system replaces the one the Commission created in 2015 .

Requesters may now initiate new FOIA requests using the latest 2021 system at https://eeoc.arkcase.com/foia. Requesters who submitted FOIA requests before Feb. 1 will be able to check the status of those requests through the Public Access Link through March 12, 2021. After that date, requesters must access all EEOC FOIA requests using the 2021 system. Current users are encouraged to create an account in the new system as soon as possible to avoid any service interruption.

FOIA requesters may continue to monitor their requests and appeals online and may also electronically exchange correspondence and documents with the EEOC. In addiition, the EEOC posts many agency documents on its website and in its online FOIA public reference room. However, individuals may also submit FOIA requests for other records.

Friday, January 29, 2021: Stronger COVID-19 Guidance Available from OSHA

In response to President Biden’s Executive Order on Protecting Worker Health and Safety, the U.S. Department of Labor announced that the Occupational Safety and Health Administration (OSHA) issued Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace. This information provides more robust guidance identifying coronavirus exposure risks and outlines the critical areas employers should address in their COVID-19 prevention programs in the workspace.

According to the announcement:

“This guidance is not a standard or regulation, and it creates no new legal obligations. It contains recommendations as well as descriptions of existing mandatory safety and health standards. The recommendations are advisory in nature, informational in content and are intended to assist employers in recognizing and abating hazards likely to cause death or serious physical harm as part of their obligation to provide a safe and healthful workplace.”

Friday, January 29, 2021: Biden Wage-Hour Administration Sounding an Early “Enforcement” Theme: Employers Now Back on the Hook for FLSA Violations

The U.S. Department of Labor announced the immediate termination of its Payroll Audit Independent Determination (PAID) program launched by the department’s Wage and Hour Division in 2018. See our story from Tuesday, March 6, 2018: Program Announced to Expedite Employee Payment Errors. The program allowed employers to self-report federal minimum wage and overtime violations under the Fair Labor Standards Act to avoid litigation, penalties or damages, and prohibited affected workers from taking any private action on the identified violations.

Wage and Hour Division Principal Deputy Administrator Jessica Looman stated:

“Workers are entitled to every penny they have earned. The Payroll Audit Independent Determination program deprived workers of their rights and put employers that play by the rules at a disadvantage. The U.S. Department of Labor will rigorously enforce the law, and we will use all the enforcement tools we have available.”

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.