OFCCP Week In Review: August 1, 2022

• Commissioners Dhillon & Lucas Reported EEOC Is Denying FOIA Requests On Claims Sent To Arbitration Rather Than Litigation
• Federal Judge in Ohio Blocked Air Forces’ Vax Requirement Nationwide
• OFCCP Issued First Official Statement After Weeks of Confusion On Its AAP Portal “Deadline”
• National Academy of Sciences Released Its Anticipated Pay Data Study; EEOC Commissioners Respond With Notably Different Takes
• HHS, DOL, And Treasury Department Issued Guidance Regarding Birth Control Coverage Under the ACA
• DOL WHD Added New Best Practices Guidance on Child Labor for Employers
• DC Circuit Court of Appeals Reverses NLRB Win for Browning-Ferris in Long-Running Joint-Employer Litigation Slugfest: No New Legal Test Emerges…Yet
• In Brief
• Looking Ahead: Upcoming Date Reminders

Monday & Tuesday, July 25 & 26, 2022: Commissioners Dhillon & Lucas Reported EEOC Is Denying FOIA Requests On Claims Sent To Arbitration Rather Than Litigation

On Monday, EEOC Commissioner Janet Dhillon tweeted a link to a Federalist Society panel podcast entitled, “Is the EEOC misusing the Freedom of Information Act to penalize employers that adopt mandatory employment arbitration programs?” The Federalist Society webpage regarding the panel stated that “[t]he EEOC is denying employers’ FOIA requests for the EEOC’s charge investigation files when resulting employment claims are proceeding in arbitration rather than litigation.” Former EEOC General Counsel Eric Dreiband was also on the panel. It was moderated by Christopher C. Murray, a Shareholder at Ogletree, Deakins, Nash, Smoak & Stewart.

Back in January, Murray and Temple University Law student, Lorenzo B. Riboni, wrote a blog for the Society detailing the situation. They argued that the EEOC’s practice was not justified by Title VII and violated both FOIA and the Federal Arbitration Act (FAA). In general, the FAA presumes and prefers arbitration as a matter of federal policy. EEOC regional offices are, nevertheless, implementing this practice according to “anecdotal reports from employers around the country,” the blog’s authors reported. The EEOC is asserting that “its long-standing policies prohibit [the] production of the [underlying charge] files to a party if no lawsuit was filed,” they noted. When asked for a justification, EEOC regional attorneys have said that, unlike litigation, arbitration does not constitute a proceeding on the charge within the meaning of Title VII, Murray noted during the podcast.

On Tuesday, Commissioner Andrea Lucas posted about the panel podcast on her LinkedIn account. Her statement began with the following paragraph:

“Employers with #eeoc charges: Did you know that you can #FOIA the EEOC’s charge investigation files? But wait, not so fast–if you are headed to #arbitration after the EEOC issues the employee a notice of right to sue, did you know you may be out of luck on FOIA?

In her next paragraph, Ms. Lucas stated the EEOC’s “current position” is “that the agency will deny employers’ FOIA requests for the EEOC’s charge investigation files when resulting employment claims are proceeding in arbitration rather than litigation.”

It’s clear that the Biden Administration disfavors the use of mandatory arbitration to resolve employment disputes. (See our report from June 17, 2021: Splinter Democrats Implore President Biden to Use Executive Order to Further Worker Protections, This Time by Axing Arbitration Agreements.) What is not clear is when EEOC field offices implemented this FOIA practice and to what extent it is occurring throughout the country.

EEOC’s reported position is not legally sound, Commissioner Dhillon told DE’s “Week in Review” team

“I don’t think the EEOC’s position is legally sound,” Commissioner Dhillon told DirectEmployers (DE) WIR team in an exclusive interview on Friday. Specifically, the practice contradicts the provisions of Title VII, FOIA, and the agency’s own regulations. Even if the EEOC’s regulations justified such a practice, those regulations do not supersede statutory provisions, she explained.

Ms. Dhillon’s comments reflect her opinion alone and should not be construed to represent the view of the agency or other Commissioners. She served as Chair of the Commission from May 15, 2019, to January 20, 2021. Prior to her EEOC service, she practiced law in the private sector for over 25 years.

Commissioner Dhillon told us that she first learned about the practice at issue in 2021. During the panel, Mr. Dreiband also said he was not aware of this practice until last year. In her interview with our team, Ms. Dhillon said that she does not know how widespread the practice is throughout the agency. The EEOC’s position on this FOIA practice is not posted publicly on the agency’s website or anywhere else, she noted.

Explaining that FOIA requirements are also overseen by the U.S. Department of Justice, Commissioner Dhillon mentioned a March 15, 2022 memorandum by Attorney General (AG) Merrick Garland to the heads of all executive branch departments and agencies. She pointed out two important aspects of that memo. First, AG Garland directed the department and agency heads to “apply a presumption of openness in administering the FOIA.” Second, the memo made clear that the Justice Department will not defend nondisclosure decisions that fail to do so. Commissioner Dhillon also noted that on its Freedom Of Information Act Reference Guide webpage, the EEOC included former AG Eric Holder’s FOIA guidelines for the Executive Branch, issued on March 19, 2009, but the webpage does not include AG Garland’s superseding March 2022 memorandum.

Commissioner Dhillon suggested employers pursue the appeal process and seek a formal opinion letter

What should employers do if they have been denied FOIA records pursuant to this practice? Commissioner Dhillon suggested that employers should go through the appeal process within the agency, and if not successful, consider bringing an action in court. Employers should also consider seeking a formal opinion letter from the full Commission to clear up the confusion. A formal opinion letter represents the agency’s official position on the matter raised and reliance upon it may provide a defense to liability, the EEOC’s website explains.  A Commission-voted formal opinion letter is signed by the Commission’s Legal Counsel on behalf of and as approved by the Commission. Informal discussion letters issued by EEOC staff are not binding, Commissioner Dhillon cautioned.

The process for requesting a formal opinion letter is detailed on the EEOC’s website at: https://www.eeoc.gov/how-request-formal-opinion-letter. It is within the discretion of the Commission as to whether they issue an opinion letter and the ultimate decision resides with the chair, who sets the Commission’s voting agenda, Commissioner Dhillon explained.

For background on the current process for filing FOIA requests with the EEOC, see our story from February 2021: EEOC Launches New FOIA Portal.

Wednesday, July 27, 2022: Federal Judge in Ohio Blocked Air Forces’ Vax Requirement Nationwide

Well, it is not just Texas or judges in the deep South anymore. Judge Matthew W. McFarland of the United States District Court for the Southern District of Ohio (Cincinnati and Columbus) expanded nationwide the coverage of an earlier preliminary injunction (PI) barring the U.S. Air Force from implementing its COVID-19 vaccine mandate against service members seeking exemptions as a religious accommodation. The class members consist of active duty, active reserve, reserve members, and national guard members of the U.S. Air Force and Space Force, including cadets, appointees, and inductees, who submitted a religious accommodation request for an exemption to the Air Forces’ COVID-19 vaccine requirement and who were denied or are pending a decision.

Legal counsel for 18 service members filed a court complaint on their behalf this past February, alleging violations of the Religious Freedom Restoration Act and the First Amendment to the U.S. Constitution (Doster v. Kendall; case number 1:22-cv-00084). They allege that the Air Force systematically denies religious accommodation requests to its mandatory COVID -19 vaccination policy, while simultaneously granting medical and administrative exemptions. 

Judge McFarland issued his original PI covering the 18 named service members on March 31, 2022. In that 41-page order, the judge stressed the importance of “religious liberty.” He found that the Air Force’s cited “compelling interests” for the mandate – (1) stemming the spread of COVID-19 and (2) military readiness – did not justify the substantial burden on the service members’ religious liberties. Moreover, the Air Forces’ broad justifications of stemming the spread of the virus and promoting military readiness and national security “ring hollow in light of the fact that over 2,500 exempt Airmen are carrying out their respective duties unvaccinated.” The only difference between those seeking religious-based exemptions and those to whom the Air Force has granted medical and administrative exemptions is the type of exemption they requested, the judge pointed out.

In a July 14 order denying the government’s motion to dismiss, the judge noted that “it is appropriate for the Court to make determinations on constitutional violation questions and allegations. Determining whether the Air Force’s denial of substantially all religious accommodation requests violates the Constitution does not require military experience or discretion.” That same day in a separate order, the court certified the case as a class action. Judge McFarland rejected the government’s characterization of the class action relief sought as hinging on individualized determinations concerning their religious accommodation requests and sincerely held religious beliefs. “[T]he relief the proposed class seeks is the same: a religious accommodation relating to the COVID-19 vaccine mandate,” Judge McFarland wrote. Plus, the class has been harmed in essentially the same way, i.e., they face separation from the Air Force and other disciplinary measures. The court’s four-page July 27 order extended the March PI to the full, nationwide class certified on July 14.

One of the law firms representing the service members, Siri & Glimstad LLP has a webpage on the case, which includes the court’s orders described above.

Thursday, July 28, 2022: OFCCP Issued First Official Statement After Weeks of Confusion On Its AAP Portal “Deadline”

Following weeks of confusion, OFCCP sent an email to stakeholders containing its first official statement regarding its AAP verification portal “deadline.” This new OFCCP e-mail message repeats what we reported in our previous two WIR stories: the most recent dated July 7, 2022 and titled: “OFCCP Walked Back Part Of Its Extension Of Its AAP Verification Portal ‘Deadline’” and our June 30, 2022 story titled “OFCCP Quietly Extended the AAP Verification Deadline Following Discovery of Faux Pas.”

However, OFCCP’s newest message also raises the question whether it still intends to retaliate against contractors by auditing them if they certified later than June 30, AND, were not “in queue” waiting for OFCCP’s backlogged assistance to certify their AAPs or whether the agency now intends to retaliate only if the contractor does not certify at any point in time. We will point out that ambiguity which surfaces with this new OFCCP message, below. (Many contractors had advised OFCCP that if the agency intended to retaliate against them for “late Certifications,” that there was little incentive for those contractors to now Certify, late).

Editor’s Note: Less than half of all federal contractors OFCCP believes had a regulatory obligation to comply with OFCCP’s Certification invitation/demand, have Certified to date, according to OFCCP Director Jenny Yang.

Moreover, OFCCP does not clarify the status of those covered federal contractors OFCCP invited to certify their AAP compliance, and which did Certify their AAP Establishments employing 50 or more employees which OFCCP had “prepopulated” in its Certification Portal but Certified before OFCCP informally changed its Certification expectation/demand (via a new quietly published FAQ) three weeks before OFCCP’s June 30, 2022 Certification “deadline.” That FAQ change suddenly invited/expected contractors to Certify ALL AAP Establishments, including those with 49 or fewer employees, even though OFCCP had taken the stern position for weeks in response to contractor inquiries about OFCCP’s two (erroneous) positions that contractors need NOT Certify AAP Establishments of 49 or fewer employees and furthermore that contractors had no obligation under OFCCP’s Rules to even develop AAPs for establishments of 49 or fewer employees. Thousands of federal contractors were caught unaware of OFCCP’s sudden realization 13 weeks into its 16-week Portal Certification window that OFCCP suddenly became aware that it was misreading its own AAP development Rules and that the Agency was suddenly changing its mind and requiring Certification of the 49 employee and under AAPs. Our Week In Review story broke that news on June 30…OFCCP’s filing “deadline.”

In addition, the new OFCCP message also has fun with words insisting that it is not “extending” the certification deadline past June 30 while also maintaining that “Contractors that have not yet registered and certified whether they are in compliance with their AAP obligations should do so as soon as possible” thus merely implying that the OFCCP Certification Portal is still open. But, the OFCCP message, below, very carefully and pointedly nonetheless does NOT state that its Certification Portal is still “open.”

As of our reporting cutoff time, DOL/OFCCP had not published the statement on any of its websites. The statement’s title, “OFCCP’s Contractor Portal Technical Help Desk Open to Assist Contractors,” buries the lead import of its message (which is that the Portal is still open and OFCCP is encouraging contractors which have not Certified to do so).

OFCCP’s e-mail reads as follows:

“OFCCP commends the federal contractors and subcontractors that have registered and certified their AAP compliance through the OFCCP Contractor Portal by the June 30, 2022 deadline.

OFCCP will consider those contractors that requested assistance from OFCCP on or before June 30, 2022 but have not yet completed registration or certification because of a pending request for assistance, to have met the June 30 deadline. The Contractor Portal Technical Help Desk is currently addressing open help desk tickets.

OFCCP has not extended the June 30 deadline. Contractors that have not yet registered and certified whether they are in compliance with their AAP obligations should do so as soon as possible. The OFCCP Contractor Portal Technical Help Desk will remain open and available to answer questions about the Portal and provide assistance.

Contractors that have not certified will be more likely to appear on OFCCP’s scheduling list than those that have certified their compliance with AAP requirements. Contractors that have not certified compliance include those that have not utilized the Portal to certify whether they are meeting their AAP requirements, as well as those contractors that have certified they have not developed or maintained an AAP.

First Editor’s Note: These two preceding sentences do not make clear whether certification after June 30, 2022 is subject to OFCCP’s retaliation or whether the agency is now reserving its audit retaliation for only those contractors which do not Certify at all and should have, in OFCCP’s judgment.

Second Editor’s Note: These two preceding sentences do NOT address the status of those contractors which Certified their AAP Establishments with 50 or more employees (which OFCCP had pre-populated for the contractor in OFCCP’s Certification Portal), but which did NOT Certify their AAP Establishments of 49 or fewer employees (which OFCCP did not pre-populate in its AAP Certification Portal under the mistaken belief that federal contractors had no duty to develop AAPs for establishments of 49 or fewer employees).

In addition, contractors that have not certified compliance by September 1, 2022, will be included on a list provided to federal agency contracting officers. The purpose of this list is to enable contracting agencies to notify contractors of their certification obligations, thereby assisting OFCCP in securing compliance. See E.O. 11246 Sec. 205.

OFCCP offers a user guide and frequently asked questions to assist contractors with registering for the Contractor Portal and certifying compliance. For any technical issues, please submit an inquiry to the OFCCP Contractor Portal Technical Help Desk or call 1-800-397-6251 with any questions.”

Thursday, July 28, 2022: National Academy of Sciences Released Its Anticipated Pay Data Study; EEOC Commissioners Respond With Notably Different Takes

Making five specific recommendations, the National Academies of Sciences, Engineering, and Medicine (NASEM) issued its much-anticipated report evaluating the quality of the limited run EEO-1 Survey Component 2 data collection for reporting years 2017-2018. In sum, the expert panel assigned to conduct the study found that the Component 2 “data as collected have value” as they are unique among federal surveys by providing employee pay, occupation, and demographic data at the employer level. However, the panel recommended that “the value be strengthened by both short-term and longer-term improvements in respondent coverage, data collection protocols, measurement implementation, and conceptual coverage.”

The 275-page report starts with a discussion of the panel’s conclusions regarding the value of Component 2 data as collected. It then presents the panel’s recommendations regarding the appropriate use of those data. Then it discusses future collections of pay data. It goes on to provide recommended improvements necessary in the short term. Next, it offers recommendations to broaden and strengthen data collected by EEOC to enforce pay equity. “The latter recommendations require more effort by EEOC than the short-term recommendations, but offer greater benefits,” the report observed. “If implemented, these recommendations could improve the breadth and strength of EEOC data for the purposes of monitoring and addressing pay equity, in some ways reduce employer burden, and respond to employer concerns about the precision of the Component 2 data collection instrument used for reporting years 2017–2018,” a summary page on the report noted.

How we got here

The “Joint Reporting Committee” (“JRC”) administers the EEO-1 Report. As we explained in earlier WIR reporting, the JRC does not actually exist as an entity. Rather, it is a legal fiction that operates as a line item in the EEOC’s and OFCCP’s respective budgets allowing for the administration, collection, and reporting of employer EEO-1 reports to the EEOC and OFCCP. 

The Trump Administration discontinued the controversial Component 2 pay data reporting requirement which the Obama Administration had added to the annual EEO-1 Survey. The Obama-Era EEOC expanded EEO-1 data collection for reporting years 2017 to 2018 in an effort intended to improve its ability to investigate and address pay disparities between women and men and between different racial and ethnic groups. After the EEOC commissioned the study by a unanimous vote in 2020, the NASEM’s Committee on National Statistics (CNSTAT) assembled a panel of experts to conduct the assessment.

Meanwhile, in September 2021, the OFCCP published a notice in the Federal Register (86 FR 49354) announcing its intent to “devote further agency resources to evaluate the [EEO-1 Component 2] data’s utility because the joint collection [with the EEOC] and analysis of compensation data could improve OFCCP’s ability to efficiently and effectively investigate potential pay discrimination.” 

See WIR for September 7, 2021, for more background. The EEOC also provided extensive background information in a “What You Should Know” webpage concerning the report.

The five recommendations: address sources of error, improve data quality, improve the ability to collect more data, test & development before implementation, and improve appropriate access to the data

The report provided the following five recommendations:

(1) Address Sources of Error in the Data

To address likely sources of error related to the significant lack of coverage of firms and establishments in the data, the panel recommended improving both the master frame and outreach to newly eligible firms. It suggested that the EEOC might use an interagency agreement with the Bureau of Labor Statistics as a tool to appropriately maintain business registers.

(2) Improve Data Quality and Ability to Examine Trends

The EEOC’s approach to assigning identification numbers made it difficult to match establishments filing 2017 and 2018 reports, the panel observed. Although the panel acknowledged that this action was intended to protect confidentiality, the panel stated there are several better ways to protect confidentiality that do not prevent authorized users from matching records and thereby assessing data quality and trends over time. To address this issue, EEOC should use consistent and unique firm and establishment identifiers, facilitating data merges and data checking.

(3) Improve Ability to Collect More Complete Data

The Commission should update its instructions to filers to conform to the federal standard on measuring race/ethnicity, which offers solutions for reporting race/ethnicity data in a combined format. The EEOC should also work with other federal agencies to develop and test ways to measure employees’ sex, gender identity, and sexual orientation in a manner appropriate for EEOC data collections. Data on the status of other protected groups might also be collected using established measures, after appropriate development work and taking into account employer burden. Collecting additional types of data, such as education, job experience, and tenure, would inform the agency’s initial investigation of pay disparities and also support employers’ self-assessments

(4) Test, Develop, and Implement the Collection of Individual Worker Data

Of particular note, the panel concluded that the EEOC’s summary approach used for aggregate pay and hours worked data in reporting years 2017–2018 severely limits the utility of the data collected, unnecessarily increases employer burden, and complicates the collection of additional key information. Collecting data from employers at the level of individual workers may be less burdensome and would markedly increase the utility of the pay data, the panel suggested. The Bureau of Labor Statistics’ Occupational Employee Wage Survey is a model. Other federal and state agencies routinely collect individual data for tax, social security, and unemployment insurance purposes. After appropriate field testing, if found suitable, the EEOC should transition to the collection of individual-level employee pay data.

(5) Improve Appropriate Access to Pay Data

The EEOC should strengthen consultation and data sharing with the public and with federal and state employment data collection agencies, which will require the implementation of appropriate privacy protections. Doing so would assist employers’ self-assessments. Federal interagency collaborations, such as the Federal Committee on Statistical Methodology’s Data Access and Confidentiality Committee, are resources that EEOC might consider. Similarly, improvements in data quality and appropriate access may be available by partnering with the U.S. Census Bureau and the Bureau of Labor Statistics. In addition, the Commission should provide employers with benchmark comparison data to industry and locality peers.

Webinar scheduled for Tuesday, August 2

The NASEM website’s landing page for the study states that the panel will hold a webinar regarding the public release of the document this coming Tuesday, August 2, 2022, from 1:00 PM – 3:00 PM (ET).

All five EEOC Commissioners posted their varied, individual takes with a common emphasis on the importance of the rulemaking process

On top of the official Commission press release, four of the five Commissioners, in addition to the EEOC’s Chief Data Officer, felt compelled to offer their individual observations about the NASEM Report. The agency’s press release took an optimistic tone, saying that the report confirmed that “pay data collection is a key tool to fight discrimination.” Although varied, each of the four Commissioners’ individual statements mentioned the importance of using stakeholder input and the rulemaking process going forward.

EEOC Chair Charlotte A. Burrows (D): “The study confirmed what we at the EEOC have long known – collecting and analyzing pay data can be a useful tool in preventing and combating pay discrimination in American workplaces,” said EEOC Chair Charlotte A. Burrows. “The National Academies’ rigorous examination of the Commission’s historic first pay data collection validates our efforts to collect and use compensation data to achieve pay equity in our nation.”

“[P]ay discrimination is hard to fight [because] it’s hidden from view,” noted Chair Burrows. “This study confirms that federal pay data collection could be a unique and critically important resource for helping the Commission better identify and combat pay discrimination. The report from the National Academies, together with input from employers, employees, unions, and the public, will help inform the Commission’s decision-making in this area going forward.”

Commissioner Samuels said pay data collection will help pinpoint where pay gaps occur

Commission Vice Chair Jocelyn Samuels (D): In a tweet with her full statement attached, Commission Vice Chair Jocelyn Samuels said that the report “shows that pay data can be a key tool in our fight to ensure equal pay for equal work. These data can help fulfill the promise of the Equal Pay Act and Title VII. We’ve waited 59 years. Let’s fix this issue together.”

“Although we have legal tools to fight pay discrimination […], it is hard to use them without first knowing where pay gaps occur,” her full statement noted. “Without that early warning system, all of us – the EEOC, workers, and employers who want to fix the problem – are fighting pay discrimination with one hand tied behind our backs.”

The NASEM report found that the 2017 and 2018 pay data collection “produced unique information that is not replicated by any other federal agency,” she continued. “[It] also concludes that the data EEOC collected could help prioritize charge investigations, identify systemic discrimination, and analyze geographic and industry-based pay gaps.”

“Of course, this data does alone prove that violations of the law have occurred,” she acknowledged. “But the data can enable the EEOC to sharpen and refine its investigations and target its outreach and technical assistance to help employers comply with the law.”

“I look forward to working with my fellow Commissioners and EEOC colleagues to seriously consider [the report’s] recommendations,” she stated. “I also want to hear from all stakeholders – employers and employees – as we determine whether and how to collect pay data again, and work to ensure that the information is reliable and as easy as possible for employers to produce.”

Commissioner Sonderling cautioned that the report was “not a carte blanche approval for the Commission to hastily conduct another pay data collection”

Commissioner Keith Sonderling (R): In his individual statement, Commissioner Keith Sonderling pointed out that the report “highlights the difficult task of the government attempting to extract pay data from private employers. It also exposes the flaws with the EEOC’s prior approach, including its flawed methodology, failure to conduct a proper pilot program, and data quality issues.” 

“Now the Commission has the important task of determining the best way to proceed in preventing and remedying pay discrimination,” he continued. “Whether that is through another pay data collection, compliance assistance, or enforcement, it undoubtedly will pose challenging questions. The report, however, is not a carte blanche approval for the Commission to hastily conduct another pay data collection. Instead, it should be interpreted as a warning to the Commission to thoughtfully research the issue, engage and be transparent to the public, and address privacy concerns, and the financial burdens of conducting a pay data collection.”

“If the Commission believes a future pay data collection is warranted, which no Commissioner should prejudge, it must be done through a process that allows significant public input through formal rulemaking. If the Commission had engaged in rulemaking in 2016, many of the concerns raised by the public and substantiated in the report would have been avoided,” he pointed out.

Commissioner Dhillon cited the “tremendous cost” of the previous flawed collection to employers and urged caution going forward

Commissioner Janet Dhillon (R, and former Chair of the EEOC): Via Commissioner Janet Dhillon’s individual statement, she said she was “gratified” that the report “recognized the serious flaws in the design” of the pay data collection. Those flaws included “the wrong unit of pay measurement, outdated job categories that were insufficient for describing the modern workforce and pay bands that were so overly broad that it made it very difficult to detect pay disparity.” The report also “identified import data reliability and quality issues.”

“Unfortunately, this defective, Court-ordered data collection came at a tremendous cost,” she continued. The EEOC “calculated the burden to employers at over $750 million.”

The Commission “cannot repeat the mistakes of the past,” she admonished. “If the EEOC wants to engage in future pay data collections, it must engage in a notice-and-comment rulemaking to allow all stakeholders to weigh in, and to address the flaws described” in the report. The agency should also abide by the report’s recommendations and “engage in robust field testing” prior to conducting any additional pay data collections, she stated, noting that “the need for field testing was discussed over 20 times” in the report.

Asserting the recommendations were based on a “controversial premise,” Commissioner Lucas urged the full Commission to debate the report’s “presumptions”

Commissioner Andrea Lucas (R): Deeming the 2017 and 2018 employee pay data collection “a failure,” Commissioner Andrea Lucas observed in her statement that the flaws in the data identified by the report rendered it “practically useless.” Highly critical of the report, Ms. Lucas bemoaned its recommendations “that the Commission double down on its failed efforts by radically expanding the data collected, fixing previous missteps (and apparently new ones) on the fly.”

“Without viable data, these recommendations are ostensibly based on the report’s presumption that significant, unexplained pay disparities permeate virtually every industry and profession in our economy,” she observed. “That is a controversial premise that the Commission must debate. We should receive and consider public input on these important matters, rather than presume the result we sought to study and support with this failed data project.”

Like Commissioner Dhillon, Commissioner Lucas expressed concern over the costs involved in any possible future pay data collection. Arguing that the report recommended “an unpreceded mandatory government collection of a detailed, individual snapshot of almost every private sector employee’s professional and personal life,” Ms. Lucas feared that “[t]he tangible—and intangible—costs of such a revised and aggressively expanded data collection could be severe.”

“Before the EEOC gambles on a potentially billion-dollar burden on our nation’s private employers and incentivizes the intrusive collection of sensitive information from employees, at a minimum the agency must undertake a formal notice and comment rulemaking and a public hearing to ensure robust public comment and input,” she stated.

Moreover, Commissioner Lucas expressed concern about the scope of the data. “[T]he report recommends that the EEOC should combine an expanded version of its current employee diversity data collection with a revised and expanded employee pay data collection, resulting in an expansive and intrusive collection of data about almost every private sector employee in the United States,” she said. “That potential mandatory data collection by the EEOC could include: each individual employee’s race and ethnicity; sex, gender identity (including non-binary and transgender identification), and sexual orientation; age, disability status, and veteran status; occupation and individual-level job titles; individual-level pay data (including wages, tips, and non-taxable earnings, including earnings that contribute to medical insurance and retirement accounts, as well as hours worked, weeks worked, fulltime/part-time status, and overtime classification status); and other pay-affecting factors including education, job experience, and employment tenure. Not only could this lead to a significant invasion of privacy for individual employees by their employers, but in some instances it may be in violation of the laws that the EEOC is charged with enforcing—all for data that only may be more useful.”

Dr. Chris Haffer (career employee): The report “is a scientifically sound body of work,” said Dr. Chris Haffer, the EEOC’s Chief Data Officer. “Its comprehensive analysis and data driven recommendations provide strategic direction for how to improve collection of compensation data and align with many of the needs the EEOC has already identified and begun addressing as part of the agency’s modernization of its EEO data collections and data analytics.”

Editor’s Note: While the NASEM Report was obviously highly politicized with content that described an expensive and highly flawed and failed pay collection effort in 2017-2018 with a conclusion that said “Let’s fix it and do it again” (making all readers happy with some part of the report), the November Mid-term elections will form the answer as to whether there will be another Component 2 hours worked and pay data collection. If the Senate flips by one vote to Republican control (with savvy political insiders calling that result currently too close to call) and widespread cross-party agreement that the House will flip Republican), a Republican Congress can (and we predict) would intervene under the Congressional Review Act to set aside any EEOC Rulemaking requiring employers to file a new Component 2 Report. We described in a March 23, 2021 Week In Review story the Congress’ ability to swat down, within 60-days of Final enactment or any Rulemaking which went to Final in the last 60 days of a prior Legislative session, any federal agency Rulemaking with which a majority of both houses of Congress disagree.

With the new Congress to be seated in 2023 following the November 2022 mid-term elections, our calculation is that Friday, November 4, 2022 is the day the Biden federal Executive agencies are racing to beat as the LAST day they may publish a Final Rule which the new Congress could reach back and swat down (should both Houses flip Republican when the new Congress is seated on January 3, 2023).

Thursday, July 28, 2022: HHS, DOL, And Treasury Department Issued Guidance Regarding Birth Control Coverage Under the ACA

The U.S. Department of Health and Human Services (HHS), along with the Department of Labor and the Treasury Department, issued a new guidance to clarify the protections for birth control coverage under the Affordable Care Act (ACA). On July 8, 2022, President Biden signed Executive Order 14076 with specific directives for the Attorney General and the Secretary of HHS to take the lead among federal agencies to protect healthcare service delivery and promote access to reproductive healthcare services, including abortion. The new guidance is part of the Administration’s efforts under that Executive Order. It is intended to make clear that most private health plans are required, under the ACA, to provide contraceptive coverage – including emergency contraception – and family planning counseling at no additional cost no matter where someone lives or works.

“We have heard troubling reports that plans and issuers are not following the law. We expect them to remove impermissible barriers and ensure individuals have access to the contraceptive coverage they need, said Labor Secretary Marty Walsh in a joint agency press release posted by HHS. “If plans and issuers are not complying with the law, we will take enforcement action to ensure that participants receive this coverage, again with no cost sharing,” he added.

On June 27, 2022, HHS Secretary Xavier Becerra, Labor Secretary Marty Walsh, and Treasury Secretary Janet L. Yellen sent a letter to health insurers and employer health plan organizations, and the Departments convened a meeting with them. Via that missive and meeting, the agencies called on the industry to commit to meeting their ACA obligations to provide coverage for contraceptive services at no cost.

See also, WIR: “President Biden Issued Executive Order On ‘Protecting Access to Reproductive Healthcare Services.’”

HHS’ action raises additional legal questions as to the federal government’s role in issues concerning abortion which were not before the U.S. Supreme Court when it issued its recent Dobbs decision overturning Roe v. Wade. The Dobbs decision, of course, found that there was no right to abortion resident in the U.S. Constitution, throwing the issue to state legislatures (and perhaps not also to the U.S. Congress…but that is the open legal question). The open legal question which HHS’ current action thus raises is whether the federal Executive Branch is operating in a zone of activity the Tenth Amendment to the U.S. Constitution reserves to the states:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

And while the SCOTUS upheld Obamacare as a tax bill (not a healthcare bill), the portion of Obamacare permitting abortion coverage has not been challenged yet, post-Dobbs. It is likely that our next WIR report will be that twenty state Attorney Generals have filed suit in a southern federal court to block this new HHS “Guidance” based on the Tenth Amendment.

Friday, July 29, 2022: DOL WHD Added New Best Practices Guidance on Child Labor for Employers

The U.S. Department of Labor’s Wage and Hour Division (WHD) added a webpage providing Seven Child Labor Best Practices for Employers that focuses on the importance of training, sharing information and using practical tools to identify the hazardous occupations young workers must avoid. The WHD announced the new guidance webpage in a press release which also provided examples of the Department’s recent enforcement efforts.

“In recent years, we have seen increases in child labor violations, and the Wage and Hour Division is determined to significantly reduce child labor injuries and violations,” said Principal Deputy WHD Administrator Jessica Looman. The press statement notes that the WHD has observed increases in child labor investigations and violations since 2015. In fiscal year 2021, the Division found 2,819 minors employed in violation of the law and assessed employers with nearly $3.4 million in civil money penalties. The WHD’s 2021 enforcement activities included investigating the deaths of three young workers.

“Employers who choose to hire young workers have a legal responsibility to know and abide by the federal laws that govern their employment,” Looman noted. “These obligations include eliminating all exposures to hazardous occupations and prohibited equipment, and preventing young workers from suffering serious injuries or worse.”

Friday, July 29, 2022: DC Circuit Court of Appeals Reverses NLRB Win for Browning-Ferris in Long-Running Joint-Employer Litigation Slugfest: No New Legal Test Emerges…Yet

The case decision is SANITARY TRUCK DRIVERS AND HELPERS LOCAL 350, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, PETITIONER v. NATIONAL LABOR RELATIONS BOARD, RESPONDENT BROWNING-FERRIS INDUSTRIES OF CALIFORNIA, INC., D/B/A NEWBY ISLAND RECYCLERY, INTERVENOR, DC Circuit Case No. 21-1093.

With this second trip to the Court of Appeals for the District of Columbia Circuit in four years, this long-running gun battle now prepares to head into its second decade in the legal system. Young lawyers on the case when it began are now partners and senior legal advisers.

The crux of this latest decision is that the D.C. Circuit found that the Trump Administration NLRB had not obeyed the Court’s earlier remand decision to the Board in 2018 to address whether Browning Ferris, or B-F (a recycling company in the San Francisco Bay area) engaged in a joint-employment relationship via “indirect control” of 240 employees from Leadpoint Business Services (which supplied B-F with recycling workers to augment B-F’s recycling workforce). The D.C. Circuit in this pass at the case also took the Trump NLRB to task for not having sufficiently justified its retroactive decision overruling the findings of fact and legal conclusion of “actual control” the prior Obama NLRB had made in finding that B-F enjoyed a “joint-employer” relationship with Leadpoint.

The dispute arose in 2013 when the Teamsters Union filed a Representation Petition with the NLRB to represent Leadpoint’s employees. Leadpoint complained, however, that it could not effectively bargain with Leadpoint on behalf of Leadpoint’s employees because B-F set many, if not most, of the terms and conditions of employment of the Leadpoint employees. The Teamsters complained that B-F’s interference and control of Leadpoint employees occurred either through direct contractual requirements between B-F and Leadpoint and informally through B-Fs operation and control of its recycling complex of buildings and storage yards where Leadpoint employees worked.

The case now goes back to the Biden NLRB for a third decision as to whether B-F enjoys a joint-employer relationship with Leadpoint. Is there any doubt about how that Board decision will come out in an NLRB long and well-known for “flip-flop” case decisions based on which political party controlled the Board at the time making it a continuing mockery of justice? And, in the meantime, the joint-employer legal test will continue to be uncertain for all employers until this case sees its last legal decision in this epic battle. The case is important not just because of the relationship of the two employers in question. Rather, the case is important to all employers because it will ultimately answer what the proper legal standard is to determine the presence of a joint-employer relationship. This is especially true as to increasingly fluid business combinations of employers which divvy up and divide specialized and lesser skilled work tasks with guest workers providing services on another employer’s premises.     

In Brief

Tuesday, July 26, 2022: NLRB and Justice Department Signed New Partnership Agreement To Focus on Antitrust

The National Labor Relations Board (NLRB) and the U.S. Department of Justice (DOJ) signed a Memorandum of Understanding (MOU) “to better protect free and fair labor markets and ensure that workers can freely exercise their rights under the National Labor Relations Act,” according to an NLRB press release. Signed by NLRB General Counsel Jennifer A. Abruzzo and the Justice Department (DOJ)’s Antitrust Division Assistant Attorney General Jonathan Kanter, the MOU creates a formal partnership between the two agencies. This partnership will allow them to share information and coordinate enforcement actions as to labor and antitrust violations.

The collaboration will focus “on protecting workers who have been harmed or may be at risk of being harmed as a result of conduct designed to evade legal obligation and accountability (such as misclassifying employees or fissuring workplaces); interference with the rights of workers to obtain fair market compensation and collectively bargain (through labor market concentration/labor monopsony or other anticompetitive practices),” the NLRB stated. It will also cover “the imposition of restrictive agreements or workplace rules, such as noncompete, nonsolicitation, and nondisclosure provisions.” In other words, it allows the DOJ to transfer any documents the NLRB might obtain in the pursuit of its lawful mission which bears on the poaching anti-trust problem of concern to the DOJ.

Monday & Wednesday, July 25 & 27, 2022: EEOC Added New Online Landing Pages For Tribal Employment Programs & Disability-Related Resources

The EEOC added two new landing pages. First, the Tribal Programs webpage is a consolidated resource for information about the Commission’s work with Native Americans and Alaska Natives. It contains background about the EEOC’s long-time partnership with Tribal Employment Rights Offices (TEROs), President Biden’s Tribal Consultation memorandum, and the EEOC’s Tribal Consultation Process as well as other related information. Second, it added a Disability-Related resources page. “From an overview of disability laws enforced by EEOC to updates on the latest news and information, EEOC’s new landing page pulls together more disability resources in one place than ever before, the agency touted in a tweet.

Thursday, July 28, 2022: DOL Women’s Bureau Posted Online a New Interactive Map Showing Employment & Earnings by Sex & Race

The Labor Department’s Women’s Bureau posted on its website a new data interactive map showing employment and earnings data by sex and race for full-time workers in 236 occupations. Produced by the U.S. Census Bureau, the map shows data for all fifty states and the District of Columbia.

Thursday, July 28, 2022: President Biden Nominated Jessica Looman To Head The DOL’s  Wage & Hour Division

President Biden sent to the Senate his nomination of Jessica Looman to be Administrator of the Wage and Hour Division. Ms. Looman has served as the principal Deputy Administrator and Acting Administrator of the WHD since January 2021.

Her nomination marks the President’s second attempt to fill this position. This past March, Biden’s nomination of Brandeis University Professor David Weil to head the WHD failed when a motion to advance it to a final vote was defeated, 47-53. Biden had re-nominated Weil back in January after his initial nomination in June 2021 had expired. (See WIR, “Wage & Hour Administrator Nomination Boomerang.”)

Looking Ahead: Upcoming Date Reminders

• August 1, 2022, through September 30, 2022: The 2022 VETS-4212 filing cycle begins: https://www.dol.gov/agencies/vets/programs/vets4212  
• Thursday, August 4, 2022: DE Webinar on Career Site Accessibility – From Hiring Trend to Recruitment Necessity 
• Friday, August 12, 2022: Deadline for DEAMcon23 Speaking Proposals. Submit your proposal here: https://deamcon.org/call-for-presenters/ 
• Tuesday, August 16, 2022: DE Webinar on Vocational Rehabilitation: Your Untapped Resource for Diversity & Inclusion 

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.