Welcome to the firs
t installment of a new OFCCP compliance tool we have created for our Members and are calling “OFCCP Week in Review.” Candee Chambers and I are partnering to bring this to you on the DirectEmployers (DE) website every Friday. In case you were traveling or got behind on your reading at work, the Week in Review (WIR) will give you a chance to take a quick glance to see what, if anything, you might have missed. The WIR will be simple, fast, direct: one or two sentence bullet points with links (where appropriate) to more extensive materials if you want to take a “deeper dive” into any particular bullet point of interest.
In those weeks where there are no developments of significance in our opinion, we will so report. Even no news is news!
The WIR will also stay up on the DE website and serve Members as a legacy listing cataloguing all major OFCCP developments. This legacy listing will thus allow you to look back if you want to remember when an important event affecting OFCCP compliance occurred.
Here’s what happened during the holidays of potential interest to you (and, please let Candee and I have your feedback on how you like this compliance tool and what we can do, if anything, to tweak it better).
So, here we go:
OFCCP WEEK IN REVIEW: January 9, 2015
-DECEMBER 16, 2014: This was the last day for members of the public to file comments with OFCCP regarding OFCCP’s September 17, 2014 Notice of Proposed Rule Making titled: “Prohibitions Against Pay Secrecy Policies and Actions” [proposing to characterize as unlawful discrimination any adverse action a contractor takes against applicants and employees for “inquiring about, disclosing, or discussing their compensation”].
-DECEMBER 16, 2014: OFCCP served an Administrative Complaint filed December 1, 2014 against JBS USA alleging JBS’ Hyrum, Utah plant had allegedly (1) not undertaken “adverse impact analyses” as part and parcel of its annual AAPs; (2) unlawfully discriminated from February 2008 to at least June 30, 2009 against “white, African-American and Native American applicants for entry-level Laborer positions on the basis of their race or ethnicity,” and (3) unlawfully discriminated from August 2005 to at least September 2006 against women for entry-level Laborer positions on the basis of their gender.
-On December 23, 2014 JBS filed a Motion to Dismiss, as a matter of law, OFCCP’s adverse impact claims. JBS explained to the Court that OFCCP regulations do not require contractors to annually undertake “adverse impact” analyses pursuant to 41 CFR Section 60-3.15 as part and parcel of their AAPs, even while requiring “Disparity Analyses” pursuant to 41 CFR Section 60-2.17(b).
-DECEMBER 22, 2014: The federal District Court in New Orleans stayed the U.S. Department of Justice’s lawsuit [U.S. v Entergy] against 11 Entergy system OFCCP audits the Entergy companies had refused to allow OFCCP to conduct fearing OFCCP had violated its Fourth Amendment rights in selecting it for 11 audits. [Entergy is one of the few recipients of The Secretary of Labors’ Award for Excellence in Diversity”]. The Court also remanded Entergy’s prior lawsuit against OFCCP [Entergy companies v. OFCCP], as Entergy had requested in its Complaint against OFCCP, to the Administrative Review Board to rule on an Entergy argument seeking a trial on the question whether OFCCP had violated Entergy’s rights by selecting it for 11 audits.
NOTE: Neither the Department of Justice nor OFCCP are at liberty to appeal either decision.
-JANUARY 5, 2015: Last day for members of the public to file comments on OFCCP’s August 6, 2014 Notice of Proposed Rulemaking re a “Compensation Data Collection Reporting Tool” (i.e. “Equal Pay Report”).
DE filed comments on behalf of its Members. You may read a copy of those comments by clicking on the following links:
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.
Reminder: If you have specific OFCCP compliance questions and/or concerns or wish to offer suggestions about future topics for the OFCCP Fox Report, please contact your membership representative at 866-268-6206 (for DE members), or send an email to Candee Chambers at candee@directemployers.org with your ideas.
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