OFCCP Week In Review, authored by John C. Fox, Candee J. Chambers, and Cynthia L. HackerottThe 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 J. Chambers and Cynthia L. Hackerott. In today’s edition, they discuss:

Tuesday, April 2, 2024: February JOLTS Report – Job Openings Continue to Stagnate Month Over Month, Rate Unchanged for the Third Month in a Row

Official logo for the U.S. Bureau of Labor Statistics (BLS)The most recent Job Openings and Labor Turnover Survey (“JOLTS”) Report identifies a continuing trend of stagnation regarding the availability of jobs for the American workforce. Specifically, the U.S. Department of Labor’s Bureau of Labor Statistics noted February job openings (reminder: JOLTS reports figure a month late) equaled 8,756,000 on the last business day of February. Interestingly, the report also revised the January 2024 job openings number down 115,000 openings (to 8,748,000 from 8,863,000). This meant the number of February job openings shows an increase of 8,000, with most openings occurring in the finance and insurance industry, and state and local government positions. The February and January totals exhibit a relative leveling of job openings available. Such figures however are a marked decrease from the job opening numbers reported during the last quarter of 2023, indicating less jobs available to the public.

Context Note: This is news the Federal Reserve has been hoping to hear as it tries to reduce inflation in the U.S. economy by restraining the growth of the economy. A continuation of restrained job growth could lead the Federal Reserve later this year to begin to reduce the interest rate it charges major banks which in turn set consumer borrowing rates, including home mortgage interest rates.

In contrast to the relative leveling of job openings, the other reported numbers show more volatility. For example, hiring numbers show a marked increase in February, with 5,818,000 reported hire totals marking an increase of 120,000 hires from the revised January 2024 hire total of 5,698,000. There was also a marked increase in the number of separations from work, with a total of 5,559,000 separations, an increase of 110,000 separations from the revised January 2024 separation total of 5,449,000.

BLS posted interactive graphs here.

Three-Month Comparison Chart of Job Openings

Our below table reports the number of available jobs (as taken from the revised JOLTS reports) from the last four months of available data.

Reports November 2023 December 2023 January 2024 February 2024

JOLTS available jobs

Prior month comparison

8,931,000

(246,000 > October)

8,889,000

(42,000 < November)

8,748,000

(141,000 < December)

8,756,000

(8,000 > January)

*October Job Openings were 8,685,000

Note: BLS is scheduled to release the JOLTS Report for March 2024 on Wednesday, May 1, 2024.

Thursday, April 4, 2024: EEOC Consent Decree Illustrated Enforcement Stance Regarding Natural Hair Texture & Race Discrimination

Prohibiting Black Employee from Wearing Hair in Natural State Violates Title VII’s Ban on Race Discrimination, Agency Said

Official Seal of the EEOC featuring Bald Eagle and bannerProhibiting a Black employee from wearing her hair in its natural state constitutes race discrimination in violation of Title VII, the U.S. Equal Employment Opportunity (“EEOC”) cautioned in a statement announcing a recent consent decree. Importantly, the EEOC explicitly stated that natural hair texture counts as an “immutable characteristic of race” covered by Title VII.

“Professionalism standards rooted in prejudices associated with racial characteristics are unlawful. No one should be terminated or treated differently because of hair texture associated with their race, under the guise of what is supposedly professional or not,” said Elizabeth Owen, a senior trial attorney at the EEOC in the statement.

What Did the EEOC Allege?

In the case at issue, a drug and medical testing supply company agreed to pay $50,000 and provide other relief to settle EEOC allegations that it fired an employee when she chose to wear her natural hair, rather than a wig of straight hair. The employer interviewed and selected the employee for a sales position while she wore a wig with long, straight hair. After she stopped wearing the wig and started wearing her hair in its naturally curly texture, the company’s owner instructed a human resources manager to counsel the employee about her hair and “looking more professional,” complaining that the worker “came in with beautiful hair,” the EEOC alleged. The employee’s hair – considered type “4-A” on the Andre Walker Hair Typing System – is commonly associated with people who, like the employee, are Black, the agency explained. The owner then directed the employee to begin wearing her wig with straight hair again, and when the employee continued to wear her natural hair, the company fired her, the EEOC alleged. The company later hired a white worker in her place, according to the EEOC’s lawsuit filed in the U.S. District Court for the Western District of Louisiana in October 2021.

On top of the monetary payment, the three-year consent decree requires the company to “enact policies that prohibit discrimination on the basis of race or any immutable characteristic of race, including hair texture, and policies that prohibit discrimination against an employee who chooses to display their natural hair texture or style it in a way that is protective of their natural hair or scalp.”

What Is the Relevant Law?

Presently, there is no legal consensus as to whether Title VII’s prohibition on race discrimination covers natural hair texture. Meanwhile, there is a movement to amend federal law to have the definition of race discrimination not only explicitly include natural hair texture but also include related protective hair styles.

On its website, the EEOC states that “Race discrimination involves treating someone (an applicant or employee) unfavorably because he/she is of a certain race or because of personal characteristics associated with race (such as hair texture, skin color, or certain facial features).”

Notably, the EEOC’s position (as evidenced by the consent decree requirements described above) covers both natural hair texture and styling it in a way that is protective of a worker’s natural hair or scalp. This stance is in alignment with proponents of the CROWN Act, The model CROWN Act, which stands for “Creating a Respectful and Open World for Natural Hair,” would amend existing law to prohibit race-based hair discrimination, in employment and education, because of natural hair texture or protective hairstyles including braids, locs, twists, or bantu knots. About 23 states (and multiple localities) have enacted this legislation in various forms, some of which do not conform completely with the model version of the measure. Efforts to pass this legislation on the federal level have thus far not met with success.

In 2016, a three-judge panel of the Eleventh Circuit Court of Appeals ruled against the EEOC in a case where the agency alleged that an employer violated Title VII when it, pursuant to its race-neutral grooming policy, rescinded a job offer made to a Black worker because she refused to cut off her dreadlocks. The appeals court affirmed a lower court’s dismissal of the lawsuit because “Title VII prohibits discrimination based on immutable traits,” and the EEOC did not allege that “dreadlocks—though culturally associated with race—are an immutable characteristic of Black persons.”

“We recognize that the distinction between immutable and mutable characteristics of race can sometimes be a fine (and difficult) one, but it is a line that courts have drawn,” wrote Judge Adalberto Jordan on behalf of the panel. “So, for example, discrimination on the basis of black hair texture (an immutable characteristic) is prohibited by Title VII, while adverse action on the basis of black hairstyle (a mutable choice) is not.”

The following year, the Eleventh Circuit rejected the EEOC’s request to hear the case – EEOC v. Catastrophe Management Solutions – “en banc,” i.e. to have all of the appellate court’s available judges hear the case and vote on the decision.

Friday, April 5, 2024: U.S. Economy Added 303k Jobs in March, Unemployment Rate Decreases Slightly to 3.8%

Official logo for the U.S. Bureau of Labor Statistics (BLS)Here is a summary of the U.S. Bureau of Labor Statistics’ (”BLS”) March 2024 Employment Situation Report. Remember, this report is for the month just ended (i.e., March):

  • total nonfarm payroll employment increased by 303,000 in March. Job gains were in health care, government, construction, leisure and hospitality, other services industries, social assistance, and retail trade
  • the unemployment rate decreased in March to 3.8 percent from 3.9 percent in February
  • the number of short-term unemployed workers decreased by 58,000 from 6,458,000 in February to 6,400,000 in March
  • the number of long-term unemployed (those jobless for 27 weeks or more) remained relatively the same from 1,203,000 (18.7 percent of the total unemployed) in February to 1,200,000 (19.5 percent of the total unemployed) in March, meaning that while the total number of long-term unemployment decreased they make up a higher percentage of the total number of unemployed individuals
  • the labor force participation rate was 62.7 percent, an increase of 0.2 percent. The employment-population ratio was 60.3 percent, a slight increase from the 60.1 percent rate of the population working in February.

Major Worker Groups

The BLS/DOL charts below illustrate the numbers by race and national origin (data for some groups not seasonally adjusted—which is important at this time of the year for many industries). Only veterans are doing better in employment as groups today than before the COVID-19 pandemic as our chart below the BLS column chart shows:

March 2024 | 3.8% Unemployment Rate

Our table below compares the major worker groups’ numbers from the last three months of available data:

The Employment Situation – March 2024

Unemployment Rate

January

2024

February

 2024

March 2024 Feb 2020
Pre-Pandemic
National
(Seasonally adjusted)
3.7% 3.9% 3.8% 3.5%
White 3.4% 3.4% 3.4% 3.0%
Black 5.3% 5.6% 6.4% 6.0%
Asian 2.9% 3.4% 2.5% 2.5%
Hispanic
(Seasonally adjusted)
5.0% 5.0% 4.5% 4.4%
Native Hawaiians & Other Pacific Islanders 5.8% 6.3% 4.5% 2.7%
Two or More Races
(Not seasonally adjusted)
5.8% 8.5% 7.5% 6.1%
Men (20+) 3.6% 3.5% 3.3% 3.2%
Women (20+)
(Seasonally adjusted)
3.2% 3.5% 3.6% 3.1%
Veteran
(Not seasonally adjusted)
3.3% 2.9% 3.0% 3.7%
Individuals with Disabilities
(Not seasonally adjusted)
6.6% 7.7% 8.6% 7.8%

 

See Also:

  • BLS has additional, interactive graphs available here
  • President Biden’s remarks
  • Acting Secretary of Labor Julie Su’s statement
  • USDOL video short illustrating the report

In Brief

Monday, April 1, 2024: OFCCP Opened Its Annual AAP Certification Portal; Completion Deadline July 1 

logo for the Office of Federal Contract Compliance Programs (OFCCP)As scheduled, OFCCP opened its online Contractor Portal for federal contractors and subcontractors to certify that they have developed and maintained affirmative action programs (“AAPs”) for each establishment or functional unit. The certification deadline is July 1, 2024.

The agency sent an email to contractors announcing the opening. The email contains links to: the Contractor Portal information page; How-to Videos; a User Guide; and Frequently Asked Questions. We noted in our story last week how contractors without the new universal federal contractor identifier number known as the “Unique Entity ID,” may use their Employer Identification Number (“EIN”) instead.

Although OFCCP’s email states that AAP certification via the portal is required, OFCCP does not have regulatory authority to enforce this requirement or deadline. While OFCCP does have Office of Management and Budget approval for the Contractor Portal Information Collection Request under the Paperwork Reduction Act, it does not have regulatory authority under the Administrative Procedure Act for the Contractor Portal. (More details are in our story here).

Friday, April 5, 2024: DOL Joined Nine-Agency Statement on Artificial Intelligence & Automated Systems; OFCCP Issued Additional Statements

logo for the Office of Federal Contract Compliance Programs (OFCCP)Nine federal agencies, including civil rights enforcement agencies, issued a joint statement to “reiterate” their collective “resolve to monitor the development and use of automated systems and promote responsible innovation.” Agency officials representing the Consumer Financial Protection Bureau (“CFPB”), the Federal Trade Commission (“FTC”), the Equal Employment Opportunity Commission (“EEOC”), and the Departments of Labor, Justice, Housing and Urban Development, Education, Health and Human Services, and Homeland Security signed off on the statement. Previously in April 2023, the Justice Department, CFPB, FTC, and EEOC issued a similar statement (see our story here.)

The Labor Department specific portion of the joint statement emphasized OFCCP’s enforcement efforts, and the Department also issued a related press release, with a particular focus on OFCCP enforcement. On top of that, OFCCP emailed to stakeholders, and posted a link on its website to a separate, additional statement. That statement notes that “automated systems may contribute to unlawful discrimination and otherwise violate federal law” and “OFCCP’s Enforcement Authority Applies to Automated Systems.”

Looking Ahead:
Upcoming Date Reminders

There is one  NEW  item added to our calendar this week: 

November 2023: EEOC’s target date (now overdue) to publish its NPRM to amend its regulations on exemptions to certain recordkeeping and reporting requirements (RIN: 3046-AB28)

December 29, 2023: Statutory deadline (now overdue) for EEOC to finalize regulations to enforce the Pregnant Workers Fairness Act (RIN: 3046-AB30); EEOC submitted its Final Rule for OMB review on December 27, 2023

December 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); On February 9, 2024, OSHA submitted its Final Rule to OMB for review and approval

March 11, 2024: Previous effective date of NLRB’s Final Rule on Standard for Determining Joint-Employer Status under the NLRA (per U.S. District Judge’s order previous February 26, 2024, effective date extended); On March 8, 2024, a U.S. District Judge vacated this Final Rule – stay tuned for further developments

March 2024: EEOC’s (now overdue)  target date for proposal to amend its regulations regarding the electronic posting of the “Know Your Rights” Poster (RIN: 3046-AB29)

March 2024: U.S. NLRB’s (now overdue) target date for its Final Election Protection Rule (RIN: 3142-AA22)

April 15, 2024: Comments due on EEOC’s Interim Final Rule to Amend Procedural & Administrative Regulations to Include the Pregnant Workers Fairness Act; Corrections Notice here

April 15, 2024: Comment deadline on US DOL VETS request to renew, without change, currently-approved VETS-4212 reporting requirement

April 19, 2024: Due date for comments on U.S. Justice Department’s Advance Notice of Proposed Rulemaking (“ANPRM”) on Provisions Regarding Access to Americans’ Bulk Sensitive Personal Data and Government-Related Data by Countries of Concern.

April 23, 2024: Deadline for comments on OFCCP’s proposal to Resurrect, with Changes, Monthly Employment Utilization Report for Construction Contractors

April 26, 2024: Comments due on OFCCP’s Proposed Changes to its Construction Compliance Review Scheduling Letter, Itemized Listing, and Construction Contract Award Notification Requirement Form

April 26, 2024: Comment deadline for US DOL VETS request to extend – without change – the Information Collection Requirement for its HIRE Vets Medallion Program

April 29, 2024: Responses due to OMB’s Request for Information on the responsible procurement of artificial intelligence in government

April 30, 2024: Deadline to apply for 2024 HIRE Vets Medallion Awardhttps://www.hirevets.gov

April 30, 2024: Opening Date for 2023 EEO-1 Survey Component 1 Data Collection

April 2024: U.S. DOL WHD’s current target date for its Final Rule on Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees (Overtime Rule) (RIN: 1235-AA39); On March 1, the WHD submitted its Final Rule for OMB review  

May 13, 2024: Deadline for comments on US DOL’s Request for Information seeking public input on whether to revise the list of Schedule A job classifications that do not require permanent labor certifications to include occupations in Science, Technology, Engineering & Mathematics (“STEM”) & other non-STEM occupations; previous February 20, 2024 deadline extended

May 15, 2024 (11:00 – 5:30 EST): US DOL WHD online seminar on prevailing wage requirements for federally-funded construction projects; register here

May 2024: FAR Council’s target date for its Final Rule to Prohibit TikTok [or any successor application or service developed or provided by ByteDance Limited] on Federal Government Contractor Devices (RIN: 9000-AO58); the Interim Rule is here

June 4, 2024: Deadline for 2023 EEO-1 Survey Component 1 Data Collection

June 6, 2024 (11:00 – 11:45 am CDT): OFCCP webinar for federal contractors on its pre-complaint inquiry process for workers

July 1, 2024: OFCCP’s asserteddeadline for covered federal Supply and Service contractors & subcontractors to certify, via OFCCP’s online Contractor Portal, that they have developed & maintained Affirmative Action Programs for each establishment or functional unit

August 29, 2024 (11:00 – 5:30 EST): US DOL WHD online seminar on prevailing wage requirements for federally-funded construction projects; register here

September 2024: OFCCP’s current target date for its Notice of Proposed Rulemaking to “Modernize” Supply & Service Contractor Regulations (RIN: 1250-AA13)

September 2024: OFCCP’s current target date for its Final Rule on “Technical Amendments” to Update Jurisdictional Thresholds & Remove Gender Assumptive Pronouns (RIN: 1250-AA16)

September 2024: EEOC’s anticipated date for amending its FOIA procedures to add fees for electronic disclosure of records (RIN: 3046-AB20).

September 2024: U.S. DOL WHD’s target date to publish an NPRM on “Employment of Workers With Disabilities Under Special Certificates” (Subminimum Wage Rule) (RIN: 1235-AA14)

 NEW  May 21 – May 23, 2025: DEAMcon25 in Scottsdale, Arizona 

DEAMcon25 | Mark your calendar and submit to speak

 

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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