OFCCP Week In Review: July 19, 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:

• U.S. Senate Confirmed Julie Su to be the Next Deputy Labor Secretary, and She Was Sworn In
• Biden Administration’s Final Rule Rescinding President Trump’s Joint Employer Rule Under the FLSA Clears White House Review
• 5% of Employees Self-Identified As Having A Disability – The DEI Results Are Out!
• Seema Nanda confirmed as U.S. Department of Labor Solicitor: Obama Re-Union Continues
• EEOC Vice-Chair Samuels Confirmed to Second Term at EEOC
• Court Strikes Down Employer Argument the NLRB Lacks Authority to Bring Suit Because of Improper Firing of Trump-Appointed GC
• EEOC Invites Public Comment on Agency Staff Returning to Work from Its Offices

Tuesday July 13, 2021: U.S. Senate Confirmed Julie Su to be the Next Deputy Labor Secretary, and She Was Sworn In

It was a party-line vote (50-47) with three Republicans not voting. Ms. Su was later sworn in and she is on the job.

The Deputy Labor Secretary has two roles: (1) to fill in as Acting Secretary in the absence of The Secretary; and (2) anything else the Secretary of Labor wishes. Only time will tell on what Secretary of Labor Marty Walsh will ask Ms. Su to focus her time and attention, and whether, and which/how much she will focus her attention on the sub-agencies within USDOL.

Tuesday, July 13, 2021: Biden Administration’s Final Rule Rescinding President Trump’s Joint Employer Rule Under the FLSA Clears White House Review

On Tuesday July 13th the Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs posted public notice that the it had concluded its review of the U.S. Department of Labor’s (“DOL”) Final Rule. That Rule seeks to rescind the January 16, 2020 joint employer Rule which the Trump Administration had issued in its final days pursuant to the Fair Labor Standards Act (“FLSA”). Just prior to the Biden Administration’s efforts to rescind the Rule, a federal court in New York had previously set most of the Trump Administration’s Rule aside in the case of New York v. Scalia. See our prior WIR stories about the Scalia case here and here. That case is now pending appeal before the Second Circuit U.S. Court of Appeals. We previously noted OMB’s review of the proposed Rule recission in our June 28, 2021 WIR.

Given the White House’s completion of its review, employers can expect the new Final Rule rescinding the joint employer Rule to be published in the coming days. Once published, DOL will revert back to its prior joint employer analysis under the FLSA, which considered a business a joint employer if the business had only a reserved contractual, but unexercised, right to control a worker.

Tuesday, July 13, 2021: 5% of Employees Self-Identified As Having A Disability – The DEI Results Are Out!

Disability:IN announced, “One Billion People with Disabilities are Key to the Global Economic Recovery in Historically Tight Labor Market: 2021 Disability Equality Index®.” A total of 319 companies participated in the 2021 Disability Equality Index (DEI), a 29% year-over-year growth, up from 247 participants.

The 14-page report includes an executive summary, data highlights, trends and gaps, highlights by practice area, and the scores. Of the 319 participants, 272 scored 80% and above. DirectEmployers is proud to see so many Members recognized for their efforts in disability inclusion.

The report also includes a quote from Dennis Brockman, Senior Vice President, Global Chief Inclusion and Diversity Officer for Starbucks,

“We are honored to be recognized as a top-scoring company on the Disability Equality Index, and our hope is that this recognition will inspire other companies to identify, challenge, and remove the barriers that exclude and discriminate against individuals. Our work is far from over – we will continue to identify ways to create a more accessible, welcoming, and inclusive environment in our stores.”

The 2021 DEI score is based on the company’s self-reported inclusion practices, policies, and hiring commitment for people with disabilities during the calendar year 2020. The participants are investing the time and resources to build inclusive programs and policies across six areas:

• Culture and Leadership
• Enterprise-wide Access
• Employment Practices (e.g., Benefits, Recruitment, Employment, Education, Retention & Advancement, Accommodations)
• Community Engagement
• Supplier Diversity
• Non-U.S. Operations (if applicable)

Wednesday, July 14, 2021: Seema Nanda confirmed as U.S. Department of Labor Solicitor: Obama Re-Union Continues

The U.S. Senate voted 53-46 to confirm Seema Nanda as U.S. Labor Department (“DOL”) Solicitor, filling the DOL’s chief legal officer position. The Solicitor position, the number three official at USDOL, represents the DOL in all necessary litigation, including both enforcement actions and defensive litigation.

The confirmation marks Ms. Nanda’s return to USDOL where she had previously served as Deputy Solicitor and Chief of Staff to the Secretary during the Obama Administration. The appointment also underscores the Biden Administration’s priority commitment to Wage and Hour matters since Ms. Nanda had championed the wage rights of employees in her last stint at USDOL. Republicans had objected to Ms. Nanda’s nomination as “too political” since she had followed prior USDOL Secretary of Labor Tom Perez to the Democratic National Committee (DNC), which he then chaired, and where she served as the DNC’s Chief Executive Officer.

Wednesday, July 14, 2021: EEOC Vice-Chair Samuels Confirmed to Second Term at EEOC

On Wednesday, the U.S. Senate voted 52-47 to confirm EEOC Vice-Chair Jocelyn Samuels to a new five-year term with the Equal Employment Opportunity Commission. Vice-Chair Samuels’ term now expires on July 1, 2026.

Vice-Chair Samuels, the former Executive Director at UCLA School of Law’s Williams Institute on Sexual Orientation and Gender Identity Law and Public Policy, was confirmed to a seat on the Commission in September 2020 following her nomination by President Trump. Ms. Samuels became Vice-Chair of the Commission in January 2021 at the same time President Biden elevated Charlotte Burrows to be the Chair of the EEOC.

Wednesday, July 14, 2021: Court Strikes Down Employer Argument the NLRB Lacks Authority to Bring Suit Because of Improper Firing of Trump-Appointed GC

As readers may recall, on his first day in office President Biden terminated Peter Robb as General Counsel for the National Labor Relations Board (“NLRB”) following Mr. Robb’s refusal to resign because the term of office the Senate had confirmed him to serve had not yet expired. President Biden subsequently designated Peter Sung Ohr as Acting General Counsel of the NLRB.

Because it was unclear whether President Biden had the legal authority to terminate Mr. Robb mid-term (given that the appointment of the NLRB General Counsel is subject to the “advice and consent” of the Senate) a number of employers launched legal arguments that any adverse action by the NLRB which Acting GC Ohr authorized were impermissible. That theory was that Mr. Ohr lacked legal authority to authorize Board litigation given the improper termination of Mr. Robb. On Wednesday, the first U.S. District Court to visit the issue, dashed employer hopes to invalidate NLRB actions Acting GC Ohr authorized on behalf of the NLRB. However, the Court did not rule on the question whether President Biden’s termination of Robb was unlawful.

In Goonan v. Amerinox Processing, Inc., U.S. District Court Judge Noel L. Hillman for the District of New Jersey granted the NLRB’s Petition for Injunctive Relief against Amerinox Processing, Inc. In rejecting Amerinox’s argument that the NLRB had no power to bring its petition for injunctive relief because Mr. Ohr lacked the authority to prosecute the matter due to the improper removal of Mr. Robb, Judge Hillman determined the NLRB could continue to prosecute its petition alleging that Amerinox had engaged in unfair labor practices against Amerinox employees because:

• “In sum, because the authority to bring this petition is vested by statute with the Board – individuals appointed and confirmed as the Constitution requires – this Court has jurisdiction to hear and adjudicate this Petition;” and
• Regardless of the fact the NLRA is silent as to whether the General Counsel may be removed only for neglect of duty or malfeasance in office, a petition for injunctive relief is brought by the NLRB, not the General Counsel. As such, the court had jurisdiction to hear and adjudicate the petition.

Judge Hillman based his substantive decision on the presence of reasonable cause to believe an unfair labor practice had occurred and did not determine whether President Biden’s termination of Mr. Robb was proper. The court’s decision should nonetheless greatly dampen enthusiasm employers may have to believe they may stop NLRB enforcement actions given the alleged unlawful removal of former NLRB counsel Peter Robb. Rather, employers should focus their defense to any NLRB action on the substantive defenses available to them, and treat the procedural argument about Mr. Ohr’s authority to prosecute NLRB actions as secondary until a court rules definitively on the propriety of the removal of Mr. Robb.

Thursday July 15, 2021: EEOC Invites Public Comment on Agency Staff Returning to Work from Its Offices

Well, this is refreshing: a federal agency asking its stakeholders for their comment and input on agency staffing architecture which could affect the stakeholders. The U.S. Equal Employment Opportunity Commission published a Notice on its website asking members of the public to comment on the agency’s plan to return its almost 2,000 employees to again work from the agency’s 53 brick and mortar offices throughout the United States.

“While no specific format is required, we are especially interested in how commenters generally interact with agency staff (in person, online, videoconference, telephone, etc.); how the agency’s in­creased telework may have impacted those contacts; which agency interactions were enhanced by the use of online/virtual formats; whether any particular agency interactions should be conducted in person; whether certain communities or demographic groups lack online access or face particular challenges to interacting with the EEOC online; and whether there are any relative advantages/disadvantages to having more small EEOC offices across the country vs. fewer larger offices with more centralized services. We welcome comment on any of the above topics or any other matters relating to EEOC staff members’ return to our offices.”

Comments Due: Not later than Midnight July 29, 2021.

How to File: agencyreentry@eeoc.gov

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.