Tuesday, November 28, 2023: DE Talk Podcast Focused on Veterans Employment Tools

With roughly 250,000 servicemembers transitioning to civilian life each year, veteran hiring initiatives have become an essential focus for employers. In honor of National Veterans and Military Families Month, this episode shares how DirectEmployers and its family of brands support employers in attracting and hiring veterans. Tune into this episode to hear how VetCentral supports veteran representatives across the country, straight from an Indiana-based disabled veterans outreach program specialist; how the Partner Relationship Manager (PRM) guides outreach efforts to organizations serving veterans, transitioning service members and spouses; and finally, insights from United Rentals on how their veteran-focused career site has created a unique candidate experience for veterans.

DE Talk | A Focus On Veterans: Supporting Compliance, Recruitment, Candidate Experience & Beyond

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Wednesday, November 29, 2023: US Commerce Dept Requested Public Input on Private Sector “Business Diversity Principles”

Official seal of the United States Department of CommerceThe U.S. Department of Commerce (“DOC”) published a Request for InformationNotice in the Federal Register seeking public comment on six draft “Business Diversity Principles” (“BDPs”) which describe best practices for the private sector (pdf version available here). The DOC is also seeking public input on the impact of diversity, equity, inclusion, and accessibility (“DEIA”) initiatives in the private sector. The deadline for comments is January 5, 2024, and instructions for submitting comments are here.

These BDPs are part of the DOC’s efforts to implement two of President Biden’s Executive Orders (“EOs”):

  • EO 13985, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government” issued on January 20, 2021 (our story is here); and
  • EO 14091, “Further Advancing Racial Equity and Support for Underserved Communities Through the Federal Government,” issued on February 16, 2023 (our story is here).

Of the six Business Diversity Principles cited in the notice, the following three are likely of the most interest to our readers:

  • Organizational Strategy: Use comprehensive assessments to evaluate the current state of Business Diversity within the organization, including demographic data across all levels and departments, company policies, practices, and workers’ perceptions. Develop and maintain DEIA councils, which oversee the implementation of Business Diversity initiatives and ensure alignment with overall company objectives. Regularly share progress updates to promote transparency and accountability.
  • Workforce Development: Cultivate and maintain a diverse talent pipeline by partnering with educational institutions and community organizations and allocating resources for workforce development initiatives and accommodations. Remove barriers to entry, using demographic data to understand workforce composition, identify gaps, and shape organizational strategy. Equip workers, including those from underserved communities, with the necessary skills for advancement.
  • Human Resources: Prioritize the promotion of internal talent, regularly review promotion data to identify barriers, provide senior leader sponsors for workers from underserved communities. Establish and maintain employee resource groups for workers from underserved communities. Clearly communicate potential internal career paths and advancement opportunities. Foster work-life balance through HR policies, such as flexible working arrangements, comprehensive parental leave, support for caregivers, and inclusive benefits packages.”

Thursday, November 30, 2023: OMB Approved US DOL WHD’s Final Rule on Nondisplacement of Qualified Workers Under Service Contracts

OMB Approval Means Publication Imminent

Official seal of the White House and the US DOL's Wage and Hour Division (WHD)Clearing the way for publication, the White House Office of Management and Budget (“OMB”) approved the U.S. Department of Labor Wage and Hour Division’s (“WHD”) Final Rule on “Nondisplacement of Qualified Workers Under Service Contracts.” The WHD submitted the Final Rule for OMB approval on September 6, 2023.

On July 15, 2022, the WHD published its Notice of Proposed Rulemaking (“NPRM”). In the NPRM, the WHD intends the Rule to keep individuals employed after a federal service contract has expired (the Service Contract Act of 1965, as amended, covers most service contracts over $250,000). As proposed, the Rule would generally require contractors and subcontractors who work on covered federal service contracts to place clauses into successor contracts involving the “same or similar” work for existing services deals to provide employees a right of first refusal for positions under the contract for which those employees are qualified. For more details, see our story here. The public comment period closed on August 15, 2022, with 33 comments submitted.

In the Fall 2022 Agenda, the WHD planned to publish, in December 2022, an NPRM to Analyze Comments.” However, that plan never materialized, and the Labor Department’s Spring 2023 Agenda stated that the WHD’s target date for its Final Rule was June 2023 (see our story here). Thus, the WHD is currently six months behind its target date schedule.

Friday, December 1, 2023: Federal Committee on Statistical Methodology Announced New Report on Race & Ethnicity Data Tools

Federal Committee on Statistical MethodologyVia an email to subscribers, the Federal Committee on Statistical Methodology (“FCSM”) announced that it added a new Report on Race and Ethnicity Data Tools to its Equitable Data Toolkit (“Toolkit”). The Toolkit is designed to provide federal agencies with tools that support equity analyses with a focus on historically underserved populations. It is intended to support an increase in available data, improve the accuracy of analyses, and ensure ethical and secure data governance to improve the representation of underserved populations in federal data and analyses. The FCSM noted that the choice of which populations to examine in the Toolkit was “influenced by” Executive Order 13985, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government” issued on January 20, 2021 (our story is here).

Following an introductory section, the Race and Ethnicity Data Tools Report contains sections on:

Each of the above sections contains a discussion of the relevant federal guidelines, plus references and links to applicable federal laws, federal agency guidance documents, and other resources.

In Brief

Tuesday, November 28, 2023: US Senate Stalled Rodriguez Nomination to Head DOL ETA

Official seals for the United States Senate and the United States Department of Labor (US DOL)The U.S. Senate voted 44-51 against advancing the nomination of Jose Javier Rodriguez to head the U.S. Department of Labor’s Employment and Training Administration. On a motion to close the Senate floor debate regarding the nomination, all Republicans taking part voted against it as did Democratic Senators Joe Manchin (WV) and Bob Menendez (NJ). Senate Majority Leader Chuck Schumer (NY) switched his vote to No to allow for another vote at a later date. One Republican – Lindsey Graham (SC) – and four Democrats – John Hickenlooper (CO), Ed Markey (MA), Jon Ossoff (GA), and Raphael Warnock (GA) – did not vote on the motion.

Mainstream press articles reported that Senator Manchin had concerns about Rodriguez’ “political activism and lack of experience.” Rodriguez served in the Florida state House of Representatives from 2012 to 2016 and in the state Senate from 2016 to 2020. He lost his reelection bid in 2020.

President Biden sent the nomination to the Senate on January 23, 2023. On March 28, the Senate Committee on Health, Education, Labor, and Pensions Committee voted along party lines (11-10) to advance the nomination to the full Senate.

Tuesday, November 28, 2923: US DOL VETS Announced Public Comment Opportunity on VETS-4212 Form

 Officials seals for the United States Department of Labor (DOL) and Veterans' Employment and Training Service ( VETS)  The U.S. Labor Department’s Veterans’ Employment and Training Service (“VETS”) published a 60-day Notice in the Federal Register seeking public comments on the renewal of the White House Office of Management and Budget’s (“OMB”) current approval of the VETS-4212 reporting requirement. The notice does not mention any proposed changes to this reporting requirement. The OMB’s current approval is set to expire on April 30, 2024. VETS’ burden estimates for this requirement are listed here (20 minutes to file electronically and 40 minutes to respond via paper).

Covered federal Government contractors required to report are certainly free to and invited to comment on the length of time they incur to comply with the VETS’ reporting requirement.

The deadline for comments is January 29, 2024. To submit a comment, follow the instructions here.

Wednesday, November 29, 2023: Starting in late January, US DOL Teleworking Employees Must Report in Person More Often

Official Seal for the United States Department of Labor (USDOL)The Federal News Network and the Federal Times reported that Acting Labor Secretary Julie Su told all Labor Department employees currently teleworking that they will have to report in person at least five days per two-week pay period, effective January 28.

We reported in August that the White House told federal agencies to “aggressively execute” return-to-office plans. The Federal News Network also has a chart of the federal agencies’ return-to-office plans here.

Wednesday, November 29, 2023: House Subcommittee Held Hearing to Highlight Concerns About US DOL’s WHD Overtime Rule Proposal

Official Seal for the U.S. House of RepresentativesThe House Education and the Workforce Committee’s Subcommittee on Workforce Protections held a hearing during which its Republican members strongly criticized the U.S. Department of Labor’s Wage and Hour Division’s (“WHD”) proposal to revise its regulations under Section 13(a)(1) of the Fair Labor Standards Act (“FLSA”). Section 13(a) implements the exemptions from minimum wage and overtime pay requirements for “executive,” “administrative,” and “professional” employees.

The proposed revisions include increasing the standard salary level necessary for exemption from the current $35,568 to $55,068 annually and the highly compensated employee total annual compensation threshold from the current $107,432 level to $143,988. The proposal would also provide an automatic updating (indexing) mechanism to allow for the timely and efficient updating of all the thresholds to reflect the current earnings data.

Subcommittee Chair Kevin Kiley (R-CA) led the charge in attacking the proposal, asserting that it was “poorly conceived,” especially because it is pending “[a]s businesses and nonprofits work to recover from the pandemic and record high inflation.” In contrast, Subcommittee Ranking Member Alma Adams (D-NC) expressed concern that her “Republican colleagues are attempting to undermine workers’ financial security.” See here and here for links to the prepared remarks of the hearing’s witnesses.

The WHD officially published the proposal on September 8, 2023, and the public comment period closed on November 7 with almost 26,300 comments submitted. See our stories here and here for more details.

New Publications

New Publications

Thursday, November 30, 2023: U.S. Department of Labor’s Office of Disability Employment Policy announced a new international Report, “Using AI to support people with disability in the labour market,” that features ODEP and its Partnership on Employment & Accessible Technology experts

Looking Ahead:
Upcoming Date Reminders

There are three  NEW  items added to our calendar this week: 

June 2023: U.S. DOL WHD’s current target date (now overdue) to publish its Final Rule on Nondisplacement of Qualified Workers Under Service Contracts (RIN: 1235-AA42);  NEW  the White House Office of Management and Budget approved the finalized Rule on November 30, 2023, meaning publication is imminent

June 2023: U.S. OSHA’s current target date (now overdue) to publish its Final Rule on Occupational Exposure to COVID-19 in Healthcare Settings (RIN: 1218-AD36)

August 2023: U.S. DOL WHD’s (now overdue) target date for its Final Rule on Employee or Independent Contractor Classification Under the Fair Labor Standards Act (RIN: 1235-AA43)

August 2023: U.S. NLRB’s (now overdue) target date for its Final Election Protection Rule (RIN: 3142-AA22)

August 2023: U.S. DOL’s OASAM’s (now overdue) target date to publish Proposed Rule on “Revision of the Regulations Implementing Section 188 of the Workforce Innovation and Opportunity Act (WIOA) to Clarify Nondiscrimination and Equal Opportunity Requirements and Obligations Related to Sex” (RIN: 1291-AA44)

November 27, 2023: Comments due on the U.S. Office of Personnel Management’s Interim Final Rule to extend the eligibility date for noncompetitive appointment of military spouses married to a member of the armed forces on active duty through December 31, 2028

December 5, 2023: Submission deadline for EEO-1 Survey Component 1 Data Collection (collection period opened on October 31, 2023)

December 5, 2023: Comments due on the White House Office of Management and Budget’s proposed guidance to federal agencies on how they should implement Biden’s Executive Order on Artificial Intelligence

December 26, 2023: NLRB’s Direct Final Rule revising its procedures governing representation elections takes effect

December 29, 2023: Statutory deadline for EEOC to finalize regulations to enforce the Pregnant Workers Fairness Act

December 2023: OFCCP’s current target date for its Notice of Proposed Rulemaking to “Modernize” Supply & Service Contractor Regulations (RIN: 1250-AA13)

December 2023: OFCCP’s current target date for its Final Rule on “Technical Amendments” to Update Jurisdictional Thresholds & Remove Gender Assumptive Pronouns (RIN: 1250-AA16)

January 1, 2024: U.S. DOL OSHA’s Final Rule Requiring Covered High-Hazard Industry Employers to Electronically Submit Injury & Illness Records takes effect

February 26, 2024: Effective date of NLRB’s Final Rule on Standard for Determining Joint-Employer Status under the NLRA (previous December 26, 2023, effective date extended)

April 3 – April 5, 2024: DEAMcon24 New Orleans – The DEAMcon24 Program is now live!

Register for DEAMcon24

January 1, 2024: The minimum wage for federal contracts covered by Executive Order 13658 (“Establishing a Minimum Wage for Contractors”) (contracts entered into, renewed, or extended prior to January 30, 2022), will increase to $12.90 per hour, and the minimum cash wage for tipped employees increases to $9.05 per hour (See our story here detailing exceptions)

January 1, 2024: The minimum wage for federal contractors covered by Executive Order 14026 (“Increasing the Minimum Wage for Federal Contractors”) (contracts entered into on or after January 30, 2022, or that are renewed or extended on or after January 30, 2022), will increase to $17.20 per hour, and this minimum wage rate will apply to non-tipped and tipped employees alike (See our story here detailing exceptions)

 NEW  January 5, 2024: Comments due on U.S. Department of Commerce’s Request for Information” Notice on six draft “Business Diversity Principles” for the private sector

 NEW  January 29, 2024: Comment deadline on US DOL VETS request to renew currently approved VETS-4212 reporting requirement

June 2024: OFCCP’s current target date for its Notice of Proposed Rulemaking to Require Reporting of Subcontractors (RIN: 1250-AA15)

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.

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John C. Fox
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