OFCCP Week In Review: May 17, 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:

• EEOC To Host Virtual Training Event on Navigating the Impact of COVID-19 On The Asian American Community
• The Push Is On To End The Training Of Critical Race Theory
• Two Yays And A Tie For Senate Labor Nominees
• USDOL Announced the NDEAM Theme!
• Another Senate Tie-Vote on a Presidential Nominee – This Time in the DOJ
• The Wheel Continues to Turn as to Fate of Independent Contractor Rule Under the Fair Labor Standards Act
• President Biden and the OFCCP Acknowledge Asian American and Native Hawaiian/Pacific Islander Heritage Month
• ACVETEO Charter Renewed
• Celebrate And Educate For National Women’s Health Week
• Reminder: I-9 “Flexibility Policy” Set to Expire May 31, 2021

Wednesday, May 12, 2021: EEOC To Host Virtual Training Event on Navigating the Impact of COVID-19 On The Asian American Community

The U.S. Equal Employment Opportunity Commission’s (EEOC) Birmingham and Miami District offices announced an upcoming  virtual event: “Civility for All: Navigating the Impact of COVID-19 on the Asian American Community.”

Target Audience

• Human resources professionals
• Attorneys
• Union officials
• Equal employment opportunity (EEO) professionals in the private and public sector
• Interested members of the public

Speakers

EEOC Chair Charlotte A. Burrows will be the keynote speaker. She will address the Commission’s recent resolution condemning the violence, harassment, and acts of bias against AAPI people. (See WIR 03/22/21)

Laura Shin, Acting Executive Director for the White House Initiative on Asian American Pacific Islanders (WHIAAPI), will speak on the purpose, mission, and priorities of WHIAAPI and the critical work being done across the nation to prevent the alarming and increased rates of anti-Asian harassment and violence during COVID-19.

Meeting Details

The event will take place on May 20, 2021. The registration fee is $150. Further details about the workshop are available online.

This virtual event replaces the Technical Assistance Program Seminars (TAPS) previously offered in-person around the nation.

Wednesday, May 12, 2021: The Push Is On To End The Training Of Critical Race Theory

In a news conference organized and led by Sen. Dan Bishop [R-NC], a group of legislators discussed Critical Race Theory (CRT) and legislation in the pipeline to put an end to CRT.

“Critical Race Theory is a divisive ideology that threatens to poison the American psyche. All who love freedom and revere the foundational principles of our constitutional republic have a duty to inform themselves of the origins and thought underlying this dangerous ideology and oppose it, openly and robustly.”

Over thirty House of Representative Republicans then introduced four new Bills or Resolutions in the House of Representatives condemning Critical Race Theory in one way or another, including:

1. Rep. Mark Green [R-TN] introduced H.R. 3046, with eight co-sponsors, the first of three new Senate and House Bills or Resolutions filed this week to resurrect all or portions of President Trump’s prior EO 13950 (“Combating Race and Sex Stereotyping”). Representative Green introduced H.R. 3046 titled “To prohibit Federal service academies from providing training and education based on critical race theory,” on 5/7/21. H.R. 3046 operates as a companion bill to S.968 which Senator Tom Cotton [R-AR] introduced on 3/25/21 and titled: “Combating Racist Training in the Military Act of 2021.” Representative Green’s Bill H.R. 3046 is now with the Subcommittee on Coast Guard and Maritime Transportation. H.R. 3046 aims to prohibit teaching “Anti-American and racist theories” such as Critical Race Theory at any academic institution related to the U.S. Armed Forces.
2. The second Bill, “The Stop CRT Act,” works to “codify former President Donald Trump’s Executive Order banning diversity and racial equity training for federal employees,” stated Sen. Bishop. President Biden rescinded EO 13950 (See our WIR 01/25/21 (“Day One for President Biden Included, Among Many Actions, Revoking EO 13950” and our earlier report of the Trump OFCCP shutting down the Trump Executive Order: WIR 01/04/21 “EO 13950 Imploded Even Before Biden Could Cancel it”). This Bill has not yet been numbered or the text released.
3. Chip Roy [R-TX] introduced the third Bill, H.R. 3163 – 117th Congress – Combating Racist Teaching Act: “To prohibit the award of Federal funds to schools that promote certain race-based theories to students, and for other purposes” on 05/12/21. The Bill is now with the House Committee on Education and Labor. Rep. Roy also spoke at the news conference:

   “The veil has been lifted in a public education system that is corrupting the very ideal of being American. It is happening right now with Federal tax dollars being taxed, borrowed, or printed, recklessly with 6 trillion dollars over the last year – that money is being funneled directly into public education institutions K – graduate school, that are teaching our children that America is evil, divvying us up by race, teaching our children that they should be apologetic for their race.”

   

4. Representative Burgess Owens [R-UT], a Black Republican from Utah’s 4th Congressional District near Salt Lake City introduced on Friday May 14, 2021 with 31 co-sponsors the fourth legislative action in the form of House Resolution 397. This Resolution expresses the sense of the House of Representatives that Critical Race theory “serves as a prejudicial ideological tool, rather than an educational tool, and should not be taught in K-12 classrooms as a way to teach students to judge individuals based on sex, race, ethnicity, and national origin.”

Wednesday, May 12, 2021: Two Yays And A Tie For Senate Labor Nominees

The U.S. Senate Committee on Health, Education, Labor, and Pensions (HELP) held hearings on the following Presidential nominations subject to the “advise and consent” of the United States Senate:

• Seema Nanda to serve as the Solicitor for the Department of Labor. The Committee heard her testimony on April 29, 2021. The Committee voted 14-8 to advance her nomination out of Committee and to the full U.S. Senate for further consideration. Republican Senators Susan Collins (R-ME), Lisa Murkowski (R-AK), and Mitt Romney (R-UT) joined all 11 Democrats on the Committee to advance Ms. Nanda’s nomination to the full Senate.
• Jocelyn Samuels to be reappointed as a Member of the Equal Employment Opportunity Commission. Republican Senators Susan Collins (R-ME), Lisa Murkowski (R-AK), and Bill Cassidy (R-LA) voted with all 11 Democrats on the Committee to advance Ms. Samuel’s nomination to the full Senate.
• Jennifer Abruzzo to serve as General Counsel of the National Labor Relations Board. The Committee heard her testimony on April 29, 2021. Ms. Abruzzo’s nomination, however, “failed to report favorably” due to an 11-11 tie vote on the H.E.L.P Committee. Abruzzo’s nomination is controversial because she reportedly participated in President Biden’s January 21, 2021 decision to terminate then sitting NLRB General Counsel (Peter Robb) before his term of office ended. In this hearing, Sen. Richard Burr [R-NC] stated [about Ms. Abruzzo] “If confirmed she’ll come in with a dark cloud, quite frankly, above her head.” (See 26:15, where Sen. Burr indicates Ms. Abruzzo was involved in the firing of former NLRB Counsel, Peter Robb – see WIR 01/21/21 “Several New Appointees (and a Termination) in the Labor World.”) Ms. Abruzzo has been a special counsel for strategic initiatives for the Communications Workers of America since 2017 and had previously worked in a variety of positions at the NLRB for over twenty years, including as the Board’s Acting General Counsel.

President Biden’s action to terminate NLRB General Counsel Robb before the end of the term to which the Senate had confirmed him is widely viewed as illegal. Since this has never previously happened, legal scholars and the Courts are trying to determine if President Biden’s action was in fact an illegal exercise of Presidential authority interfering with the Senate’s Constitutionally granted authority, and if so, what the remedy is. (Employer lawsuits are pending, for example, to challenge as illegal all decisions of the NLRB General Counsel’s office after Mr. Robb’s forced termination).

While no Senate Rule addresses the also unusual circumstance of Committee tie-votes in a Senate Chamber not controlled by either party (i.e., a 50/50 Senate), Senator Schumer on behalf of the Democrats, and Senator McConnell on behalf of the Republicans, have adopted a Senate procedure which Republicans worked out in a prior tie-vote circumstance years ago. That procedure is that either the Majority or Minority Leader of the Senate may exercise his (or her if one were female) discretion to call up a tie-vote in any Committee to the Senate and bring the deadlocked issue to the Senate for a full Senate Floor vote. Senator Schumer will not do so, however, unless and until he is confident that he has at least 50 votes on the Senate Floor to confirm Ms. Abruzzo’s nomination. If Senator Schumer could get Ms. Abruzzo to a 50-50 tie vote on the Senate Floor, Senator Schumer would then ask Democrat Vice-President Kamala Harris to vote and cast the “tie-breaker” to create a majority vote in favor of confirmation of President Biden’s nominee (i.e. mere majority votes confirm Presidential nominees and NOT the 60-vote requirement that Senate Rule XXII otherwise prescribes for all other votes except discretionary budget spending, revenue (i.e. taxes) and debt ceiling bills subject to the Budget Reconciliation Act.)

Thursday, May 13, 2021: USDOL Announced the NDEAM Theme!

The U.S. Department of Labor’s Office of Disability Employment Policy (ODEP) announced that the theme for the 2021 National Disability Employment Awareness Month (NDEAM) is “America’s Recovery: Powered by Inclusion.” Held each October, the annual commemoration raises awareness about disability inclusion in the workplace.

The theme’s annual spring announcement helps employers, disability advocates, and other organizations plan their observances. ODEP celebrates its 20th anniversary in 2021, and as such, is encouraging employers and community organizations, advocacy groups, and schools to participate.

“America’s Recovery: Powered by Inclusion” is a theme that reflects our commitment to an inclusive recovery, one in which those of us with disabilities have full access to economic opportunity and – if needed – the accommodations and supports that allow us to contribute our skills and talents,” said Deputy Assistant Secretary of Labor for Disability Employment Policy Jennifer Sheehy.

The history of National Disability Employment Awareness Month can be traced back to 1945 when Congress declared the first week of October to be “National Employ the Physically Handicapped Week.” “Physically” was dropped in 1962 to include people with all types of disabilities. In 1988, Congress made the commemoration a month-long event.

How will your company or institution respond to ODEP’s call for action?

Thursday, May 13, 2021: Another Senate Tie-Vote on a Presidential Nominee – This Time in the DOJ

Kristen Clarke, President & Executive Director of the Lawyers’ Committee for Civil Rights Under Law, “failed to report favorably” in an 11-11 tie vote before the Committee on the Judiciary to be an Assistant Attorney General for the Civil Rights Division at the U.S. Department of Justice (DOJ). The tie allows either Senate leader to exercise his discretion to bring Ms. Clarke’s nomination to the Senate for a full floor vote, as discussed above in the May 12th story titled: “Two Yays And A Tie For Senate Labor Nominees.” The Committee’s action mirrored the evenly split vote of civil rights attorney Vanita Gupta for the Associate Attorney General position at the DOJ. The Senate later confirmed Ms. Gupta in a vote of 51-49.

Ms. Clarke testified before the Senate Judiciary Committee on April 14, 2021. Sen. Ted Cruz [R-TX] was highly critical of an Op-ed written (but not titled) by Ms. Clarke last year. (The title of the Op-Ed advocated defunding the police). Although Ms. Clarke repeatedly denied supporting the defunding of the police, Senator Cruz continuously recited portions of the Op-ed he thought contradicted her testimony before the Committee. Senator Richard Durbin [D-IL], Chair of the Judiciary Committee, intervened to stop Senator Cruz’ intense questioning of Ms. Clarke (see Cruz questioning starting at 1:51 in the Committee hearing video above). Watch this battle continue. This is not a battle the President can afford to lose, but it is also not one which Republicans are going to easily swallow.

Thursday, May 13th: The Wheel Continues to Turn as to Fate of Independent Contractor Rule Under the Fair Labor Standards Act

As readers may recall, last week while discussing the Biden Administration’s Final Rule (the “May 6, 2021 Final Rule”) withdrawing the Trump Administration’s January 7, 2021 independent contractor Rule (the “Trump Rule”), we discussed the March 26, 2021 suit the Coalition for Workforce Innovation and the Associated Builders and Contractors, Inc. filed in the U.S. District Court for the Eastern District of Texas seeking a declaratory judgment enforcing the Trump independent contractor rule.  Specifically, the plaintiffs allege the Biden Administration DOL’s delay of the March 8, 2021 effective date of the Trump rule was “arbitrary and capricious” and in violation of the Administrative Procedure Act (“APA”).

Following the issuance of the May 6, 2021 Final Rule last week, the plaintiffs amended their Complaint to now include allegations seeking declaratory judgment invalidating the May 6, 2021 Final Rule as well.  Just as plaintiffs contend the rule delaying the effective date of the Trump Rule was arbitrary and capricious, similarly they now claim the May 6, 2021 Final Rule is also procedurally and substantively flawed.  Plaintiffs’ claims of procedural deficiency are based on their assertion the Biden Administration’s DOL acted arbitrarily in exercising its political power in violation of the APA.  Plaintiffs’ claims of substantive deficiency rest on the claim the DOL failed to give substantive consideration to the important interests of businesses in obtaining clear guidance as to independent contractor relationships that the Trump Rule offered, as well as the DOL’s failure to address the substantive data in the Trump Rule.

As litigation proceeds in this suit, employers should continue to keep an eye on any further developments that outline the arguments the court will need to consider in deciding whether the Biden Administration’s actions should be invalidated and putting the Trump Rule into effect.  Given the length of time this case will take, as well as any subsequent appeals by either plaintiffs or the Biden Administration, employers may not see final clarification as to the independent contractor rule until a year or more in the future.

Friday, May 14, 2021: President Biden and the OFCCP Acknowledge Asian American and Native Hawaiian/Pacific Islander Heritage Month

The Office of Federal Contract Compliance Programs (OFCCP) recognized Asian American and Native Hawaiian/Pacific Islander Heritage Month (AANHPI) in a bulletin where the Agency recommitted itself to “advance equality for all AANHPI workers.”

President Biden, in a White House Proclamation, stated,

“In the midst of a difficult year of pain and fear, we reflect on the tradition of leadership, resilience, and courage shown by AANHPI communities, and recommit to the struggle for AANHPI equity.”

The President spotlighted Vice President Harris’s Indian descent,

“During this year’s Asian American and Native Hawaiian/Pacific Islander Heritage Month, our Nation celebrates the achievements of Vice President Harris, the first person of South Asian descent to hold the Office of the Vice President. Vice President Harris has blazed a trail and set an example for young people across the country to aspire to follow, including members of AANHPI communities and AANHPI women in particular.”

Friday, May 14, 2021: ACVETEO Charter Renewed

The U.S. Secretary of Labor, Marty Walsh, renewed the charter for the Advisory Committee on Veterans’ Employment, Training, and Employer Outreach (ACVETEO).

The ACVETEO’s responsibilities are to:

1. Assess employment and training needs of veterans and their integration into the workforce;
2. determine the extent to which the programs and activities of the Department of Labor (DOL) are meeting such needs;
3. assist the Assistant Secretary for Veterans’ Employment and Training (ASVET) in conducting outreach to employers with respect to the training and skills of veterans and the advantages afforded employers by hiring veterans;
4. make recommendations to the Secretary of Labor, through the ASVET, with respect to outreach activities and the employment and training needs of veterans; and
5. carry out such other activities deemed necessary to make required reports and recommendations under Section 4110(f) of Title 38, U.S. Code.

Friday, May 14, 2021: Celebrate And Educate For National Women’s Health Week

National Women’s Health Week (NWHW) is a weeklong health observance led by the U.S. Department of Health and Human Services’ Office on Women’s Health (OWH). The week of May 9-15, 2021, serves as a reminder for women and girls, especially during the outbreak of COVID-19, to make their health a priority and take care of themselves.

In recognition of this annual celebration, the Equal Employment Opportunity Commission (EEOC) announced an upcoming event:

A Celebration of National Women’s Health Week:
Supporting Women’s Health in the Workforce: Knowing Your Rights Around COVID-19

Presented By

Regional representatives from the:

• S. Department of Health and Human Services (HHS)
• S. Department of Labor (DOL)
• Equal Employment Opportunity Commission (EEOC)

Topics Will Include

• Employment rights for women who are currently or planning to re-enter the workforce
• Women’s rights in the workforce specific to COVID-19, including women-centered entitlements under the Family and Medical Leave Act and the Fair Labor Standards Act.

Target Audience

• Health and social services providers
• Public health professionals
• Program and policy staff
• Community and faith-based organizations
• Employers
• Employees
• Federal, state, and local governments

Webinar Details

• Tuesday, May 25th, 2021
• 11:00 am – 12:00 pm MDT
• Register via the online link

Reminder: I-9 “Flexibility Policy” Set to Expire May 31, 2021

The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced another extension, through May 31, 2021, of its “flexibility policy” allowing certain employers to remotely complete Form I-9, Employment Eligibility Verification. However, the extended flexibility provision applies only to employers and workplaces currently operating remotely due to COVID-19.

See the original news release from 02/20/21 for more information on obtaining, remotely inspecting, and retaining copies of the identity and employment eligibility documents to complete Section 2 of Form I-9. Employers should monitor the DHS and ICE websites for additional updates about when the extensions end and normal operations resume.

E-Verify participants who meet the criteria and choose the remote inspection option must continue to follow current guidance and create cases for their new hires within three business days from the date of hire.

See the DHS COVID-19 webpage for more information.

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.