OFCCP Week In Review: March 8, 2021

• NLRB Invites Briefs Regarding Employer Investigations
• The Queen’s Gambit: New OFCCP Director Jenny Yang Signals She is Going to Make Bold Moves at OFCCP as She Scrapped 1,750 Upcoming Audits and May Be Discontinuing the Focused Review Style of Audit
• EO 13950 Gone For Good
• Independent Contractor Rule Effective May 7, 2021
• More Time To Tell the NLRB Your Thoughts on Insignia on Company Uniforms
• Another Big Hiring Month as the Economy Steadily Reopens
• EEOC General Counsel Fired After Refusing to Resign
• The “Flip-Flop Report” – Scorecard of the Biden Administration Executive Actions

Monday, March 1, 2021: NLRB Invites Briefs Regarding Employer Investigations

The National Labor Relations Board (NLRB) invited the parties and amici curiae (“friends of the court”) to submit briefs in Sunbelt Rentals, Inc., 370 NLRB No. 94 (2021).

Background: Johnnie’s Poultry Co, 146 NLRB 770 (1964), enf. denied 344 F.2d 617 (8th Cir. 1965), is a 1965 NLRB case decision which set down procedural safeguards employers must follow when interviewing employees to prepare the company’s defense to an unfair labor practice (ULP) charge.  In the current Sunbelt Rentals case, an NLRB Administrative Law Judge ruled that Sunbelt had violated Section 8(a)(1) of the National Relations Act when its attorney interviewed two employees in the course of preparing its defense to an ULP charge without fully complying with the safeguards Johnnie’s Poultry had set out.

Last Monday, a majority of the Board (Members Kaplan (R), Emanuel (R), and Ring (R) voted to seek briefs (and the lone Democrat on the NLRB, Chairman McFerran, dissented) on the following questions:

1. “Should the Board adhere to or overrule Johnnie’s Poultry?
2. If the Board overrules Johnnie’s Poultry, what standard should the Board adopt instead?

• What factors should it apply in determining whether an employer has violated the Act when questioning an employee in the course of preparing a defense to an unfair labor practice allegation?
• Should the Board apply a “totality of the circumstances” standard?
• Even if some of the Johnnie’s Poultry safeguards should be dispensed with, are there any that, if breached, should continue to render such questioning unlawful per se?”

Filing Details

File electronically by selecting “eFiling.” Contact the Office of Executive Secretary at 202-273-1940 for assistance.

• File briefs (25 pages or less) with the Board in Washington, D.C., on or before April 5, 2021.
• The parties may file responsive briefs on or before April 20, 2021 (15 pages or less).

No other responsive briefs will be accepted.

Tuesday, March 2, 2021: The Queen’s Gambit: New OFCCP Director Jenny Yang Signals She is Going to Make Bold Moves at OFCCP as She Scrapped 1,750 Upcoming Audits and May Be Discontinuing the Focused Review Style of Audit

For the first time in history, the Office of Federal Contract Compliance Programs (OFCCP) REMOVED audits from a Corporate Scheduling Announcement List (CSAL) for Supply and Service contractors. OFCCP’s announcement stated this decision would allow the Agency “to more thoroughly evaluate contractors through the strategic allocation of limited agency resources.” We explain, below, why we think this was a very sound and mature judgment from Director Yang, even while many contractors may not like it.

In so doing, OFCCP eliminated from its September 11, 2020 CSAL (known as Release #1 of its FY 2020 CSAL) 1,750 of the 2,250 reviews it had announced in that CSAL, as follows:

• ALL 1,250 Focused Reviews appearing on the September 11, 2020 OFCCP CSAL, including 250 Focused Reviews for Section 503, and 500 reviews of each of two “new” types of Focused Reviews the Trump Administration designed but which have not yet made their debut (Focused Reviews for Accommodations and Focused Reviews for Promotions). This is a total elimination of 1,250 Focused Reviews (250 + 500 + 500).
• ALL 500 Compliance Checks as to Supply & Service Contractors (only), but not as to Construction Contractors. Note: This has been widely mis-reported. While OFCCP’s announcement was clear that it was addressing only Supply & Service contractors (not Construction Contractors), many Bloggers incorrectly extrapolated OFCCP’s correct statement about the elimination of Supply & Service industry Compliance Checks to all Compliance Checks in OFCCP’s inventory. So, Construction industry Compliance Checks continue without change from the September 11, 2020 OFCCP CSAL.

The 500 Supply & Service (“full” or “regular”) Compliance Reviews OFCCP kept active from the September 11, 2020 CSAL included:

• 402 “Establishment-based Reviews” (aka “regular” or “full” reviews), which included reviews of universities, colleges and places of higher education, and
• 67 “Corporate Management Compliance Evaluations” (CMCE) (aka “Glass-Ceiling” Reviews), and
• 31 Functional Affirmative Action Program (FAAP) reviews.

See this training chart for the “before” and “after” picture we have used in numerous PowerPoint training sessions for the last 6 months, as NOW UPDATED to reflect what happened in OFCCP’s March 2, 2021 CSAL announcement: a picture is worth a thousand words.

Learn more about OFCCP Director Yang’s plans in our full deep-dive bonus blog post by clicking the image below.

Tuesday, March 2, 2021: EO 13950 Gone For Good

In a memo to the heads of federal executive departments and agencies, Acting Office of Management & Budget Director Robert Fairweather provided detailed instructions for agencies to ensure the complete rollback of agency actions they may have taken pursuant to E.O. 13950.

“Effective immediately, this Memorandum rescinds OMB Memorandum M-20-37, Ending Employee Trainings that Use Divisive Propaganda to Undermine the Principle of Fair and Equal Treatment for All (Sept. 28, 2020) and Memorandum M-20-34, Training in the Federal Government (Sept. 4, 2020), which provided implementation guidance of E.O. 13950. Agencies must take appropriate actions to ensure the complete reversal of agency action implementing the now-rescinded OMB policy memoranda.”

The memo goes on to explain that,

“…federal contractors, including subcontractors and vendors performing under government contracts, shall not be investigated, debarred, or otherwise penalized for purported violations of E.O. 13950.” It also reiterates that “the Department of Labor’s OFCCP will not enforce such contractual language and will immediately discontinue any other implementation actions (e.g., cease operating its phone hotline and administratively close any complaints regarding non-compliance).”

Dead. Done. Gone for the third time.

Thursday, March 4, 2021: Independent Contractor Rule Effective May 7, 2021

The Wage and Hour Division (WHD) issued a Final Rule which delays the “Independent Contractor” Rule’s effective date to May 7, 2021. The proposed delay was in response to President Biden’s “Regulatory Freeze Pending Review.” (See our story from January 20, 2021).

The Agency published the original Final Rule on January 7, 2021 (See our story and bonus blog), with an effective date of March 8, 2021.

Friday, March 5, 2021: More Time To Tell the NLRB Your Thoughts on Insignia on Company Uniforms

The National Labor Relations Board (NLRB) announced it had extended the deadline for submitting briefs in response to corporate limits on uniform decorations, including union insignia,  to March 22, 2021. See our previous story, “NLRB Invited Legal Briefs On The Union Insignia Issue,” for the details surrounding the Tesla, INC case.

Filing Details

File electronically by selecting “eFiling.” Contact the Office of Executive Secretary at 202-273-1940 for assistance.

• File briefs (25 pages or less) with the Board in Washington, D.C., on or before March 22, 2021.
• The parties may file responsive briefs on or before April 6, 2021 (15 pages or less).

No other responsive briefs will be accepted.

Friday, March 5, 2021: Another Big Hiring Month as the Economy Steadily Reopens

According to the Bureau of Labor Statistics’ (BLS) Monthly Situation Report for February, most of the job gains occurred in the leisure and hospitality industries which were very hard hit by the COVID-19 pandemic industry shutdowns. BLS reported smaller increases in temporary help services, health care, and social assistance, retail trade, and manufacturing. Employment declined in state and local government education, construction, and mining.

Asian unemployment decreased dramatically (from 6.6% to 5.1%) and took the top spot with the lowest percentage of any reported ethnic or racial group. Blacks, Whites and Hispanics all showed modest gains of only .1% in the reduction of unemployment. The percentage of unemployed Veterans stayed the same (at 5.5%), but Individuals with Disabilities slid backwards noticeably from 12% unemployment to 12.6% unemployment.

Friday, March 5, 2021: EEOC General Counsel Fired After Refusing to Resign

President Biden requested the resignation of Sharon Gustafson, the Equal Employment Opportunity Commission’s (EEOC) General Counsel. She refused and was ultimately let go. This odd turn of events was similar to Peter Robb’s outcome, the General Counsel of the National Labor Relations Board (See our January 20th story).

In her letter to the President, she states,

“Your request that I resign provided no reason for the request, and I do not know which of your advisors recommended that you make the request. But please be aware that there are those who oppose my advocacy on behalf of employees who experience religious discrimination and on behalf of constitutional and statutory protections for religious entities.”

To this point, David Lopez, who preceded Gustafson as General Counsel, stated, “One of the issues she made as her hallmark, was the issue of discrimination against religious minorities, the law requiring religious accommodation of beliefs. Some lawyers from the conservative Christian right view this right as a conflict with requiring nondiscrimination against LGBTQ people.”

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

For the last several weeks we have published the “Flip-Flop Report:” a scorecard cataloguing Executive Actions the Biden Administration has undertaken to reverse notable Trump Administration policies and procedures.

While there were no new actions to add to the report in the past week, we have updated the scorecard to include the “frozen” Rules from the Equal Employment Opportunity Commission.

The EEOC withdrew the following regulations from the Office of the Federal Register (per the “Regulatory Freeze”) while the next steps for each Rule are further considered:

• Amendments to the so-called “Wellness Rules” under the Americans with Disabilities Act which the Trump Administration had Proposed January 7, 2021. This Proposed Rule details how the ADA’s voluntary requirement and safe harbor provisions apply when determining the extent to which an employer may offer incentives for an employee to participate in a wellness program that obtains medical information.
• Amendments to the so-called “Wellness Rules” which the Genetic Information Nondiscrimination Act also impacts and which the Trump Administration had Proposed January 7, 2021. This Proposed Rule details the extent to which an employer may offer incentives to an employee in exchange for the employee’s spouse (or other family member) providing information about that family member’s disease or disorder and/or for that family member to meet health outcomes as part of an employer-sponsored wellness program.
• Final Rule – Official Time in Federal Sector Cases before Commission

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.