OFCCP Week In Review: April 26, 2021

• OFCCP Wants Your Comments on Construction Compliance Reviews
• Empowering Teens in Their Workplaces Online Dialogue
• EEOC To Consider Civil Rights Implications Of The Pandemic
• California’s Labor Commissioner Heads to a Senate Vote for USDOL’s Deputy Secretary Role
• More In Store on Independent Contractors?
• NLRB Decides to Keep Its Existing “Contract Bar” Rule
• Biden Taps Former Obama Official to Come Back to ODEP: Obama Reunion Continues at USDOL
• EEOC To Host Event To Educate on National Origin Discrimination
• Create Diverse and Inclusive Workplaces Through Apprenticeships
• Former Obama Official Tapped to Come Back to OASP
• EEO-1 Component Data Collection Portal is now Open
• Reminder: Last Call for HIRE Vets Medallion Award Submissions

Monday, April 19, 2021: OFCCP Wants Your Comments on Construction Compliance Reviews

The Office of Federal Contract Compliance Programs (OFCCP) published a Notice of Availability requesting comments from the public in support of OFCCP’s request to the Office of Management and Budget (“OMB”) to require construction contractors to use the following construction contract award notification form and two following OFCCP audit Scheduling Letters for the three years after OMB approves them, if it does.

• Construction Contract Award Notification Form CC-314 (seeking reauthorization of the form)
• Construction – Compliance Review Scheduling Letter & Itemized Listing (New)
• Construction – Direct Federal Compliance Check Letter and the Construction – Federally Assisted Compliance Check Letter (to merge)

While you may comment on anything you wish, OFCCP asks in particular for your Comments on:

• whether the collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility;
• if the information will be processed and used in a timely manner;
• the accuracy of the Agency’s estimates of the burden and cost of the collection of information, including the validity of the methodology and assumptions used;
• ways to enhance the quality, utility, and clarity of the information collection; and
• ways to minimize the burden of collecting information on those who are to respond, including the use of automated collection techniques or other forms of information technology.

OFCCP uses the information you supply to either justify its proposed course of action or to modify it, either voluntarily or at OMB’s behest. There has historically been contractor concern that the burden estimates OFCCP creates to justify to OMB its construction audits do not correctly or completely calculate all costs to construction contractors. If you share that belief and have credible evidence as to how OFCCP mis-calculates the true costs, this is your opportunity to set the record straight with OFCCP and at OMB, or hold your peace for the next three years.

OMB will consider all written comments it receives on or before May 19, 2021.

Tuesday, April 20, 2021: Empowering Teens in Their Workplaces Online Dialogue

The U.S. Department of Labor invited teens, parents, educators, employers, and other interested stakeholders to join a national online dialogue through April 30th to gather ideas on how the Department can connect better with teens.

The goal  is to develop effective ways to enhance existing efforts to inform teens about:

• avoiding workplace hazards;
• the types of work they are allowed to do;
• age restrictions for work hours;
• employer wage requirements;
• employment training, including apprenticeships; and
• workplace discrimination.

Teen Labor Facts

The Bureau of Labor Statistics reported that the U.S. workforce included 4.7 million teens between the ages of 16 and 19 in 2020. In fiscal year 2020, the Wage and Hour Division reported more than 850 child labor violations. It is estimated that teens between 15 and 19 years old require emergency room treatment for a workplace injury approximately every five minutes in the workplace.

Event Details

The event is part of the Office of Disability Employment Policy’s (ODEP) ePolicyWorks initiative. In addition to ODEP, the U.S. Department of Labor’s Wage and Hour Division, Office of Compliance Initiatives, and the Employment and Training Administration will co-host.

Visit https://teenworkers.ideascale.com to register and participate in the online dialogue.

Wednesday, April 21, 2021: EEOC To Consider Civil Rights Implications Of The Pandemic

The Equal Employment Opportunity Commission (EEOC) announced it will hold a hearing to consider the impact of the COVID-19 pandemic on employees, the difficulties faced by employers in navigating potential employment discrimination issues raised by COVID-19, and future challenges the pandemic may present for employees and employers.

The Commission will hear testimony from various experts on job discrimination and other barriers to employment. 

Hearing Details

• Wednesday, April 28, at 10:30 a.m. EST.
• The public may observe the live stream or connect to the audio-only dial-in (details available on EEOC website on April 26, 2020)
• Closed captioning and ASL services will be available

Wednesday, April 21, 2021: California’s Labor Commissioner Heads to a Senate Vote for USDOL’s Deputy Secretary Role

The Senate Health, Education, Labor and Pensions Committee voted 13-9 to advance candidate Julie Su to a U.S. Senate Floor vote in pursuit of her nomination to be the U.S. Department of Labor’s Deputy Secretary. Senator Lisa Murkowski (R-Alaska) and Susan Collins (R-Maine) voted with Committee Democrats to allow Ms. Su’s nomination to move forward.

Ms. Su is currently the Secretary of the California Labor and Workforce Development Agency. California Governor Gavin Newsom originally appointed Su in January of 2019 to serve as his cabinet advisor on labor issues and employment programs for workers and businesses and then nominated her to run California’s labor agency, the nation’s largest.

Before she was appointed California Labor Commissioner, Su was the Litigation Director at Asian Americans Advancing Justice-Los Angeles, the nation’s largest non-profit civil rights organization devoted to issues affecting the Asian American community. Su is the daughter of Chinese immigrants and speaks Mandarin and Spanish in addition to English.

Wednesday, April 21, 2021: More In Store on Independent Contractors?

In an interview with Bloomberg Law, Jessica Looman, the Principal Deputy Administrator for the U.S. Department of Labor’s Wage and Hour Division (WHD), spoke candidly about the potential for new guidance or regulations on the core principles of contractor status and joint employment. See our blog from January, USDOL’s New Independent Contractor Final Rule is DOA, Or Is It? Not So Fast!, to get up to speed on the ever-evolving saga of the gig worker.

Other notable highlights from the interview include:

• upcoming training opportunities on the essential protections of essential workers (starting in May),
• getting the agency staffed up, and
• an infrastructure package that would expand the number of government contractors subject to WHD-enforced prevailing wage and benefits laws (no official details on this yet).

Wednesday, April 21, 2021: NLRB Decides to Keep Its Existing “Contract Bar” Rule

The National Labor Relations Board (NLRB) decided to retain its longstanding contract-bar doctrine. The decision came in the case of Mountaire Farms, Inc., 370 NLRB No. 110 (2021). Applying the contract-bar doctrine to the particular facts of the case, a majority of the Board reversed the Regional Director’s finding that the contract bar could not apply in this case because the contract contained a clearly unlawful union-security clause.  A Board majority instead found that the union-security clause was capable of a lawful interpretation, which is all Board precedent requires for a contract bar to be effective. Member Ring dissented from this portion of the Board’s holding.

Contract-Bar Doctrine

Under this doctrine, the Board ordinarily will not process any representation or decertification petition filed during the first three years of a valid collective-bargaining agreement. An exception exists for petitions filed during a specified “window period” immediately before the agreement’s expiration date.

In July of 2020, the Board issued a Notice and Invitation to File Briefs, inviting the parties and interested amici curiae to file briefs addressing whether the Board should:

1. rescind the contract-bar doctrine,
2. retain it as it currently exists, or
3. retain the doctrine with modifications.

The decision was to retain the doctrine, and a majority of the Board decided not to modify the doctrine at this time.  Member Emanuel dissented from this portion of the Board’s holding.

Thursday, April 22, 2021: Biden Taps Former Obama Official to Come Back to ODEP: Obama Reunion Continues at USDOL

President Biden nominated Taryn Williams to be the Assistant Secretary for the U.S. Department of Labor’s Office of Disability Employment Policy (ODEP). Williams is no stranger to the agency. She served as a Senior Policy Advisor to the Youth Team and as the Chief of Staff, during the Obama Administration, to the position she now seeks to occupy. Ms. Williams was also detailed to drive forward assignments as Associate Director for public engagement, as a Liaison to the disability community at the White House, and as a Policy Advisor on the U.S. Senate Committee on Health, Education, Labor, and Pensions.

Ms. Williams is currently the Managing Director for the Poverty to Prosperity Program at American Progress, which works on progressive policies focused on a broad range of anti-poverty strategies.

You may recall that we reported the nomination of Julie Hocker for this position back in June of 2020. However, the Senate returned Ms. Hocker’s nomination to then President Trump in January under the provisions of Senate Rule XXXI, paragraph 6, which states that “nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President….”

Thursday, April 22, 2021: EEOC To Host Event To Educate on National Origin Discrimination

The Equal Employment Opportunity Commission (EEOC) announced it will host an event with LUNA Language Services to seek to educate and offer real-life suggestions to create a more inclusive workplace culture for people of diverse national origins.

Learning Objectives

• Learn how national origin discrimination manifests itself in the workplace.
• Understand when culturally insensitive behavior becomes illegal behavior.
• Gain best practices for creating an inclusive culture for a team with diverse national origins.

Event Details

National Origin Discrimination in the Workplace Event
Thursday, April 29th
12:00 – 12:45 p.m. EST
Zoom Webinar

Friday, April 23, 2021: Create Diverse and Inclusive Workplaces Through Apprenticeships

The Partnership on Inclusive Apprenticeship (PIA) launched its new website and newsletter this week. PIA collaborates with employers and apprenticeship intermediary organizations to design inclusive apprenticeship programs accessible to all, including people with disabilities.

PIA focuses on apprenticeships that meet employer talent needs and enable people with disabilities to gain credentials and skills to succeed in high-growth, high-demand industries like healthcare, IT, cybersecurity, and clean energy.  The Office of Disability Employment Policy funds PIA.

Friday, April 23, 2021: Former Obama Official Tapped to Come Back to OASP

President Biden nominated Rajesh Nayak for the Assistant Secretary for Policy in the U.S. Department of Labor’s (USDOL) Office of the Assistant Secretary for Policy (OASP). Nayak is currently serving as a Senior Advisor at the United States Department of Labor. He previously spent seven years at the labor department in the Obama-Biden Administration, serving in a range of senior roles, including Senior Counsel and Deputy Assistant Secretary for Policy. Later, as Deputy Chief of Staff, Nayak advised the Secretary of Labor on the Department’s workforce development, worker protection, and counter-trafficking programs, and led the Department’s employee engagement efforts.

Monday, April 26, 2021: EEO-1 Component Data Collection Portal is now Open

As we previously reported – today is the day! Due to the pandemic, the EEOC delayed the 2019 EEO-1 Component 1 data collection process. As of March 26th, the collection portal is open to submit BOTH 2019 and 2020 data via an online form. Employers looking to use the data file upload process will need to wait until May (see below). The portal also contains various resources, including a support center for more specific inquiries.

A sample letter the EEOC has sent out and addressed to “HR Director, CEO, or Legal Counsel” indicates the two ways employers may submit their data:

1. ONLINE FORM (AVAILABLE APRIL 26, 2021): Filers may enter data into a secure data entry form via the EEO-I Component I Online Filing System.
2. DATA FILE UPLOAD (AVAILABLE IN LATE MAY): Filers may upload data files through the EEO-I Component I Online Filing System. The format of the upload data file(s) MUST follow the file layout(s) set forth in the EEOC-approved specifications available at EEOCdata.org/eeo1. [PLEASE USE THIS LINK. IT IS NOT CORRECT IN THE LETTER WHICH IS REFERENCED ABOVE.]

The letter also includes “What’s New” and “Important Filing Information,” such as the deadline for submitting the 2019 and 2020 EEO-I Component 1 data is Monday, July 19, 2021.

The EEOC will open the 2020 EEO-3, 2021 EEO-4, and 2020 EEO-5 Data Collections later this year.

Reminder: Last Call for HIRE Vets Medallion Award Submissions

This is the last week to file applications for the HIRE Vets Medallion Award. The deadline is Friday, April 30, 2021. In November of 2021, the U.S. Secretary of Labor will recognize the organizations that meet the program’s criteria. Award recipients will receive an award certificate and digital images of the medallion to use in their marketing and promotional efforts.

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.