OFCCP Week In Review: March 1, 2021

• Exploration, Compliance, Competence, Competitive Advantage – Where is Your Company on the Disability Employment Maturity Curve?
• Biden Nominates His NLRB General Counsel
• USDOL’s Customized Employment Method to Hire Veterans with Disabilities Explained
• Exploring the Intersection of Black History and Disability Inclusion
• Driving Change Through Accessible Technology
• Persons with a Disability: Labor Force Characteristics – 2020
• Equality Act Passed the House
• New Leaders Appointed to the Women’s Bureau
• Tip Rule Delayed to April 30, 2021
• JAN’s New Blog Tips to Request and Negotiate Accommodations During the Pandemic
• Retaliation Remained the Top EEOC Charge in FY 2020
• EEOC Pledges Again to Redouble Efforts to Address Racism
• DE Masterclass Education Series Kicked Off With Astounding Reviews!
• OFCCP Contractor Assistance Portal Closed
• NEW: The “Flip-Flop Report” – Scorecard of the Biden Administration Executive Actions

Monday, February 22, 2021: Exploration, Compliance, Competence, Competitive Advantage – Where is Your Company on the Disability Employment Maturity Curve?

It’s that time of year again! The National Organization on Disability’s (NOD) 2021 Disability Employment Tracker is now open. NOD redesigned the tool to deliver even more valuable data and insights to employers which complete the assessment. A slide deck covers all of the updates, including a sample of new questions (pg. 17-18).

What is the Disability Employment Tracker?

• A free, confidential, on-line diagnostic tool for companies
• Developed by NOD employment experts, with NBDC + input from corporate leaders
• Includes a Scorecard benchmarking your performance against the full pool of participating companies
• Use the Tracker annually to chart year-over-year progress and demonstrate gains from launching or expanding disability and veterans’ inclusion initiatives.

Companies striving for recognition as one of DiversityInc’s Top 50 Companies for Diversity or securing NOD’s Leading Disability Employer Seal must register BEFORE Midnight March 26, 2021.

Send direct questions to tracker@NOD.org.

Monday, February 22, 2021: Biden Nominates His NLRB General Counsel

President Biden sent Jennifer Ann Abruzzo’s nomination for General Counsel of the National Labor Relations Board (NLRB) to the Senate.

Ms. Abruzzo is no stranger to the NLRB, having spent almost twenty-three years working for the NLRB in various capacities. Her positions included Field Attorney, Supervisory Field Attorney, and Deputy Regional Attorney in the Miami, Florida office. In addition, she served as Deputy Assistant General Counsel in the Division of Operations-Management in Washington, DC, where she oversaw regional operations in the Northeast and Midwest. She currently serves as Special Counsel for Strategic Initiatives for the Communications Workers of America (CWA).

According to a statement from President Biden, speaking more to campaign themes unrelated to the NLRB than to Ms. Abruzzi’s capability to support the NLRB’s mission to guarantee the right of most private sector employees to organize, to engage in group efforts to improve their wages and working conditions and to determine whether to have unions as their bargaining representatives, Ms. Abruzzo:

“…will bring her more than two decades of experience and knowledge at the NLRB to help rebuild America’s middle class. Abruzzo will be an important member in supporting the NLRB’s work to build a stronger, more resilient, and more inclusive economy that delivers every American a fair return for their work and an equal chance to get ahead.”

President Biden has given the NLRB considerable mindshare in his first month in office, as seen from his swift, although highly controversial action, to terminate the Trump-era General Counsel, possibly in violation of applicable law.

See our previous stories:

• Wednesday, January 20, 2021: Several New Appointees (and a Termination) in the Labor World
• 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

Tuesday, February 23, 2021: USDOL’s Customized Employment Method to Hire Veterans with Disabilities Explained

The U.S. Department of Labor premiered the “Customized Employment Works for Veterans” videos. The videos feature businesses that meet their hiring needs by using Customized Employment to hire veterans with disabilities. Check out these videos and see how Customized Employment may work for your organization!

• Customized Employment: A Job that I Love
• Customized Employment Works for Veterans: A Win-Win Strategy

Tuesday, February 23, 2021: Exploring the Intersection of Black History and Disability Inclusion

In honor of Black History Month, Nakisha Pugh, senior policy advisor in the Office of Disability Employment Policy (ODEP), posted a blog on “Exploring the Intersection of Black History and Disability Inclusion.”

In the blog, Pugh recounts Brad Lomax’s story, a Black American who played an essential role in the civil rights and disability advocacy movements. Lomax was among the disability rights activists who conducted the 1977 sit-in at the San Francisco Federal Building that resulted in the signing of the regulations for Section 504 of the Rehabilitation Act of 1973. Pugh also discusses her commitment to increasing equity in underserved communities.

“I’m proud to be part of the team at ODEP charged with developing and influencing policies and practices that increase employment opportunities for all people with disabilities, including Black Americans with disabilities,” said Pugh.

Tuesday, February 23, 2021: ODEP at 20: Driving Change Through Accessible Technology

Nathan Cunningham, a Policy Advisor in the Office of Disability Employment Policy (ODEP), posted a blog on “ODEP at 20: Driving Change through Accessible Technology.”

Cunningham, who has low vision, discusses how accessible technology, including emerging technology, plays a vital role in allowing employees with disabilities to succeed in the workplace. He outlines ODEP’s policy priorities to ensure that technology tools are accessible to all as part of the future of work.

“Full inclusion means employees with disabilities can access a range of necessary supports to excel and help their teams and businesses succeed,” said Cunningham. “Technology is one such support.”

Wednesday, February 24, 2021: Persons with a Disability: Labor Force Characteristics – 2020

The U.S. Bureau of Labor Statistics released “Persons with a Disability – Labor Force Characteristics 2020.” The Current Population Survey, a monthly sample survey of about 60,000 households that provides statistics on employment and unemployment in the United States is the source for these data on persons with a disability.

Employment Data For 2020

• 9% of persons with a disability were employed, down from 19.3% in 2019
• 8% of persons without a disability were employed, down from 66.3% in 2019

This is approximately an 8% decrease in employment for persons with a disability and about a 7% decrease in employment for persons without a disability because of the COVID-19 pandemic in calendar year 2020.  This is not a statistically meaningful difference in the loss of employment through the COVID-19 pandemic. However, persons with a disability continue to well exceed the employment challenges of those without a disability– as seen by the startling difference in employment percentages outlined above (only 19.3% vs 66.3%).

Unemployment Data For 2020

• 6% for persons with a disability, up from 7.3% in 2019
• 9% for persons without a disability, up from 3.5% in 2019

The percentage of unemployment for persons with a disability thus grew about 72% through the COVID-19 pandemic in calendar year 2020 while the percentage of unemployment for persons without a disability grew about 125% during the year–so the COVID-19 pandemic had a lesser impact on the unemployment rate of persons with a disability than it did on the unemployment percentage of persons without a disability. However, again, persons with a disability were starting out from a FAR worse percentage (in this case) of unemployment than persons with a disability: persons without a disability started the COVID-19 pandemic with over twice the percentage rate of unemployment than persons without a disability (7.3% vs 3.5%).

Thursday, February 25, 2021: Equality Act Passed the House

By a vote of 224 to 206, H.R.5 – Equality Act, passed the U.S. House of Representatives. The bill needs support from all 48 Democrat Senators, both Independents and at least10 Republicans in the Senate to pass before presentation to President Biden. While President Biden supports H.R.5 and urged the Congress, before the House vote, to pass it, the bill faces considerable opposition. Its passage is not assured. Nonetheless, signaling its importance, Democrats have moved this bill through the legislative process early in this new 117th Congress hoping it might be one of the few major and controversial bills President Biden will be able to squeeze through the Senate before the competition with other pending bills overtakes it and it gets lost in the traffic.

Through 23 “Findings” in the preamble to the specific amendments the bill seeks, H.R.5 seeks to be a comprehensive overhaul of numerous federal statutes protecting against “gender discrimination” in every context (beyond just employment where Title VII already protects against discrimination based on one’s gay, lesbian and/or transgender status).

While the bill aims primarily to protect the Lesbian, Gay, Bi-Sexual, Transgender and Queer communities–referenced collectively through the legal phrase “LGBTQ people” — which H.R.5 newly coins (See section 2(a)(3) of the bill) — H.R.5 also seeks to expand the protection of women in public accommodations:

“Women also have faced discrimination in many establishments such as stores and restaurants, and places or establishments that provide other goods or services, such as entertainment or transportation, including sexual harassment, differential pricing for substantially similar products and services, and denial of services because they are pregnant or breastfeeding. (See section 2(a)(4) of the bill). (Note: Expect the Personal Care Industry (hair salons and spas) to lobby heavily against this provision since this industry heavily practices price differentiation between men and women.)

The bill also seeks to introduce a new concept into discrimination law protecting against so-called “intersectional” discrimination described in the bill as the “intersection of multiple protected characteristics. Discrimination against a pregnant lesbian could be based on her sex, her sexual orientation, her pregnancy, or on the basis of multiple factors.”  (See section 2(a)(2) of the bill).

Federal statutes which H.R.5 would amend include:

• virtually every major section of the 1964 Civil Rights Act (protecting against discrimination in employment and public accommodations in restaurants, federal, state and local government civic centers, stores, entertainment venues, government offices, adoption (See section 2(a)(20) of the bill) and foster care (See section 2(a)(21) of the bill), transportation and health care, apparently also requiring the provision of so-called “gender reassignment surgery.”) (See section 2(a)(14) of the bill). (Note: Expect the insurance lobby and some religious health care systems to lobby heavily against this provision);
• the Fair Housing Act (protecting against discrimination in the rent or purchase of housing). (See section 2(a) (15 & 16) of the bill);
• the Equal Credit Opportunity Act (protecting against credit discrimination). (See section 2(a)(17) of the bill);
• the United States Code (to protect against discrimination in the selection of jurors in federal trials). (See section 2(a)(19) of the bill);
• federal statutes authorizing federal financial assistance (aka “grants”) to prohibit discrimination in the award and oversight of federal grants. (See section 2(a)(8) of the bill);

H.R.5 also seeks to limit the Religious Freedom Restoration Act of 1993 from denying the protections H.R.5 makes available to LGBTQ people. (See section 1107 (Claims) within the specific amendments the bill proposes). (Note: Expect the religious lobby to weigh-in heavily against this provision).

H.R.5 also seeks to outlaw the attempt to change a person’s sexual orientation, gender identity, or gender expression (known as “conversion therapy”). (See Section 2(a)(7) of the bill).

H.R.5 also seeks to prohibit sexual orientation and gender identity discrimination and to elevate those protections to constitutionally protected rights under the 14th Amendment (which limits the actions of state and local governments). (See section 2(a)(10) of the bill).

See our previous story which reported the introduction of H.R.5 within the U.S. House of Representatives: “Equality Act Back on the Table.”

Thursday, February 25, 2021: New Leaders Appointed to the Women’s Bureau

The new Director of the Women’s Bureau, Wendy Chun-Hoon, issued a statement introducing herself and her Deputy Director, Analilia Mejia. In the statement, she says,

“For 10 years, I’ve advocated for both paid family medical leave and sick and safe days, access to child care and good wages, and working conditions. Through Family Values @ Work, a national network of grassroots coalitions, I’ve learned how certain policies can make a difference in workers’ lives. I’m excited and humbled to advance this work with the Agency during a critical time in our country’s history.”

The U.S. Department of Labor’s Women’s Bureau is celebrating its Centennial in 2020.

Friday, February 26, 2021: Tip Rule Delayed to April 30, 2021

A new Final Rule the USDO Wage and Hour Division has issued delays the effective date of its new Final Rule until April 30, 2021.We previously reported that per President Biden’s “Regulatory Freeze Pending Review,” the Tip Regulations Under the Fair Labor Standards Act (“Tip Rule”) was under review. The USDOL Wage and Hour Division published the Final Rule on December 30, 2020 with the originally legally effective date of March 1, 2021.

Friday, February 26, 2021: JAN’s New Blog Tips to Request and Negotiate Accommodations During the Pandemic

The Job Accommodation Network (JAN) published two new blogs.

Linda Carter Batiste, JAN Principal Consultant and Legislative Specialist, provides questions and answers on “Requesting and Negotiating Accommodations During the Pandemic.”

“A Conversation with Julia Martensson of Specialisterne” presents an interview between JAN Lead Consultant Melanie Whetzel and Julia Martensson, Senior Talent Acquisition Manager of Specialisterne. They discuss Specialisterne’s employment programs for individuals with autism and other members of the neurodivergent community.

Friday, February 26, 2021: Retaliation Remained the Top EEOC Charge in FY 2020

The U.S. Equal Employment Opportunity Commission (EEOC) announced 2020 Enforcement and Litigation Data. The data describe the various kinds of charges among the total of 67,448 charges of workplace discrimination the Agency received in Fiscal Year (FY) 2020 (Oct. 1, 2019 – Sept. 30, 2020).

Earlier this year, the Agency touted $535 Million in Discrimination Recoveries in FY2020 in its Performance Review.

The FY 2020 data show that retaliation remained the most frequently cited claim in charges filed with the Agency – accounting for a staggering 55.8% of all charges filed. True to previous years, disability, race, and sex round out the top percentages of charges.

And, despite the federal government’s preoccupation with alleged compensation discrimination in employment, as usual, compensation claims under the Equal Pay Act and GINA’s prohibition on genetic discrimination in health insurance and genetic discrimination in employment brought up the bottom of the charge list with 1.5% and less than ½ of one percent, respectively, of the Commission’s FY 2020 charge inventory.

Friday, February 26, 2021: EEOC Pledges Again to Redouble Efforts to Address Racism

EEOC Chair Charlotte Burrows released a statement for Black History Month. In the statement, she stresses that,

“…the tragic killing of George Floyd, Breonna Taylor, and so many other African American mothers, fathers, sons, and daughters remain a painful reminder of systemic racism. Systemic bias and discrimination are an issue not only in policing and criminal justice, but in many areas, including employment and economic opportunity, with implications for our own work with the U.S. Equal Employment Opportunity Commission (EEOC).”

She goes on to say,

“Last summer, the Commission unanimously adopted a resolution condemning “the violence that has claimed the lives of so many Black persons in America” and committing the agency “to redouble our efforts to address institutionalized racism, advance justice, and foster equality of opportunity in the workplace. I am honored to lead the Agency as we work to make good on that commitment.”

Friday, February 26, 2021: DE Masterclass Education Series Kicked Off With Astounding Reviews!

In celebration of our 20th Anniversary, DirectEmployers was proud to debut its Masterclass Disability Roundtable education forum. Adding a new petal to its flower, the DE Masterclass Roundtable series aims to teach HR practitioners and lawyers and company policy makers about workplace accommodations. This Masterclass series does so by taking a series of deep dives into various mental and physical disabilities in the form of highly interactive roundtable discussions with medical doctors, industry experts and Member accommodation teams. Hosted and moderated by DE Executive Director Candee Chambers, each event will begin by sharing the medical aspects of that disability to establish a baseline for the ensuing conversation.

The series kicked off by exploring Autism from the unique perspectives, both professionally and personally, of a diverse group of professionals, including:

• Jennifer Feinstein, MSW, Case Manager for the Center for Autism and Related Disabilities (CARD)
• Haley Moss, Esq., Writer/speaker/national thought leader on disability inclusion, Autism and neurodiversity in the workplace, employment policy, and accessibility; first autistic lawyer admitted to the Florida Bar Association
• Craig Leen, Esq., Lawyer; Law School Dean, former OFCCP Director and parent of two autistic children
• Jessica Rafuse, Member company Microsoft Accessibility Leader and in-house educator on accessibility systems and accommodations
• Melanie Whetzel, M.A., CBIS, Lead Consultant-Cognitive Neurological Team at Job Accommodation Network (JAN)
• John C. Fox, Esq., Partner at Fox, Wang & Morgan P.C.

This dynamic and fluid conversation stretched from the clinical definition of Autism Spectrum Disorder, which now includes Asperger Disorder, to getting perspectives on terms that may be offensive or misunderstood, such as “high-functioning” and “disorder.” From compliance to compassion and education to empowerment – this panel covered it all!

DE Members, this is a conversation you MUST check out! The link is available in DE Connect (Member-Only portal). Stay tuned for the next session in the series, where experts will discuss Traumatic Brain Injuries and Post Traumatic Stress.

Monday, March 1, 2021: OFCCP Contractor Assistance Portal Closed

On Wednesday, the Office of Federal Contract Compliance Programs (OFCCP) sent an email to registered users of its Contractor Assistance Portal announcing it would close down the resource today (March 1, 2021). The agency claimed it did so “To improve efficiency and better integrate compliance assistance efforts,” but did not indicate what on the site was inefficient or not in sync with the agency’s compliance efforts.

The Agency launched the portal in August 2019 as a resource for contractors to ask questions and search for frequently asked questions. The portal required users to create a log-in and password.

Closure of the contractor portal, in addition to OFCCP’s decision last month not to allow OFCCP District Directors to speak to contractors outside of pending OFCCP audits of contractor establishments, has led to widespread speculation and concern within the federal contractor community that OFCCP may be terminating its technical assistance programs, one by one. On the other hand, other than the ability to directly (and publicly) submit a question to the Agency and to search Agency FAQs, all of the other resources within the OFCCP’s Contractor Assistance Portal remain available on the home page of OFCCP’s website.

OFCCP also continues to field questions through its Help Desk, either online (through a private “intake form”), or by calling the Toll-Free Help Line 1-800-397-6251 (TTY 1-877-889-5627).

NEW: The “Flip-Flop Report” – Scorecard of the Biden Administration Executive Actions

We are now just over a month into the Biden Administration. Let’s take a moment to recap the significant movements affecting our audience. So far, President Biden has signed more than 50 executive actions (typically Executive Orders), 22 of which are direct reversals of former President Trump’s policies. The COVID-19 virus accounts for the majority of President Biden’s new executive actions introducing fresh policy initiatives. On the backhand swing, President Biden has primarily targeted former President Trump’s immigration policies for reversals of direction and policy.

* EO on Gender Identity & Sexual Orientation (see below)
*EO on Advancing Racial Equity (see below)
**EO on Revocation of Certain EO’s (see below)
***Reversal of industry-led apprenticeship programs (see below)
Source: The White House, Federal Register

Actions the DirectEmployers WIR Has Reported Since President Biden’s Inauguration Day

January 20, 2021 (WIR 1/20/21):

• *Executive Order On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government
• *Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation
• Executive Order on Protecting the Federal Workforce and Requiring Mask-Wearing
• **Executive Order on Revocation of Certain Executive Orders Concerning Federal Regulation
• Resulting in Wednesday, January 27, 2021: DOL “Good Guidance Rule” Goes Out the Window
• Regulatory “Freeze” Pending Review – resulting so far in:
  • Equal Employment Opportunity Commission (EEOC) Notice of Proposed Rule Making (NPRM) – Amendments to Regulations under the Americans with Disabilities Act Proposed January 7, 2021
  • EEOC NPRM – Amendments to Regulations Under the Genetic Information Nondiscrimination Act Proposed January 7, 2021 
  • Tuesday, January 26, 2021: Three WHD Opinion Letters Withdrawn
    • 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.
    • 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.
• Friday, February 5, 2021: Tip and Independent Contractor Rules Frozen
• Friday, February 19, 2021: WHD Withdrew Independent Contractor and Truck Driver Sleep Time Opinion Letters
• Friday, February 26, 2021: Tip Rule Delayed to April 30, 2021 (Story above)
• Executive Order on Protecting Worker Health and Safety
• Resulting in Friday, January 29, 2021: Stronger COVID-19 Guidance Available from OSHA

Trickle-Down Events

• EEOC Conciliation drama: Wednesday, January 27, 2021: Policy Differences Erupt: EEOC Pilot Programs End Early–Virtual Mediations Stay
• Termination of the Wage & Hour Division’s “PAID” Program: Friday, January 29, 2021: Biden Wage-Hour Administration Sounding an Early “Enforcement” Theme: Employers Now Back on the Hook for FLSA Violations

February

• * Executive Order rescinding Trump’s EO 13801 (“Expanding Apprenticeships in America) and directing federal Executive Branch agencies to promptly consider taking steps to rescind any orders, rules, regulations, guidelines, or policies implementing the Trump Executive Order. (WIR 2/17/21)

To be continued weekly until the policy changes stabilize.

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.