OFCCP Week In Review: March 23, 2020

• Website Accessibility – Lawsuit Settlements Resource Page Updated
• EEOC Goes Remote
• OFCCP Issued a Very Narrow National Interest Exemption
• NILG Hosted “OFCCP Update Webinar”
• Comments Open on FMLA Forms
• Families First Coronavirus Response Act Passed
• Job Opening – Administrative Review Board Chair
• EEOC Released Q&A on ADA and COVID-19
• NLRB Suspended Representation Elections
• OFCCP Continues Operations During COVID-19
• DHS Announced Flexibility in Form I-9 Compliance
• EEOC Officially Seeks to Drop Component 2
• Special Alert: National Online Dialogue for Employers & Employees on Families First Coronavirus Response Act (FFCRA)

Tuesday, March 17, 2020: Website Accessibility – Lawsuit Settlements Resource Page Updated

The Partnership on Employment and Accessible Technology (PEAT) updated its resource page which digests the 175 U.S. Department of Justice (USDOJ) settlement agreements in which companies in the U.S. have agreed to render their websites and Information and communication technology (ICT) systems the companies allow the public to visit to be digitally accessible pursuant to Titles II and III (i.e., public accessibility) of the Americans with Disabilities Act (ADA). These agreements provide employers and other covered entities a “window” through which to observe USDOJ’s enforcement priorities related to website and ICT accessibility and how to proactively comply with existing rules and guidance.

Resources Available:

• Accessibility of Websites and Other ICT
• Technical Accessibility Standards
• When is a Covered Entity Not Required to Provide Specified Services?
• How to Implement Website/ICT Accessibility Policies
• Appendix: View the Full List of 175 Settlement Agreements

While the Courts have still not yet fully resolved the legal issues surrounding the reach of the ADA’s Title II and III provisions, USDOJ nonetheless takes the position that Title II (covering state and local governments) and Title III (covering public accommodations) of the ADA covers Internet website access, mobile applications, and other forms of ICT.​

Tuesday, March 17, 2020: EEOC Goes Remote

In response to the COVID-19 virus, the Equal Employment Opportunity Commission (EEOC) announced that the Agency would be working remotely as of last Tuesday. Effective immediately, the EEOC has encouraged all employees, other than the minimum staff needed to process inbound mail, to telework until further notice.

Wednesday, March 18, 2020: OFCCP Issued a Very Narrow National Interest Exemption

OFCCP Director Craig Leen issued a temporary exemption from specific federal contracting requirements for those covered Government contractors subject to OFCCP’s jurisdiction and which recently entered into a Government contract specifically to provide COVID-19 relief.

Bottom Line

If your organization already has existing Federal Government Contract(s) meeting the various OFCCP jurisdictional thresholds, it is business as usual. This exemption seeks to encourage new Federal Government Contractors to help COVID-19 relief efforts by temporarily lifting the burden to develop Affirmative Action Plans and many of the additional components that come with doing business with the federal government.

Who Gets an Exemption?

Federal contracting agencies which have entered into covered contracts to provide “coronavirus relief efforts” are not required to include in Coronavirus relief contracts the so-called “EEO Clauses” under all three of OFCCP’s programs.

Exempt from What?

Per the Memorandum, “In short, this exemption and waiver extends to all affirmative action obligations of supply and service and construction contracts…” but NOT Complaint investigations (which OFCCP, unlike the EEOC, has no choice under its Complaint Rules but to investigate).

1. SEE FAQ #4 “Are contractors that hold only contracts falling under the March 17, 2020, National Interest Exemption exempt from all OFCCP obligations? If not, what obligations must they follow?”

For How Long?

For a period of three months, from March 17, 2020 – June 17, 2020, subject to possible extension.

Additional information:

• COVID-19 National Interest Exemption
• Resources for New Contractors
• COVID-19 National Interest Exemptions FAQs

Wednesday, March 18, 2020: NILG Hosted “OFCCP Update Webinar”

Lynn A Clements, Esq., Director of Regulatory Affairs at Berkshire, led a webinar reviewing OFCCP updates now that we are into its mid-fiscal year.

Agenda & Highlights

• Leadership Changes. Although nominated for Inspector General of the Office of Management and Budget, Director Leen potentially has a long road ahead before updating his business cards.
• Status of Audits. There have been no audits scheduled from the VEVRAA Focused Review List and no approval of the VEVRAA scheduling letter.
• OFCCP Top Priorities for 2020. There have been six financial and 22 non-financial conciliation agreements so far this fiscal year. Director Leen is on a mission to accomplish 70+ items before his departure.
• Lessons Learned from Focused Reviews. Most have lasted 1-2 days and are going well for employers.
• Compliance Review Trends. There has been a focus on the workforce analysis, as well as Section 503 and VEVRAA focused questions, on all types of compliance evaluations. In addition, employees continue to be aggregated into large pay groups.
• Key Takeaways. Potential AAP certification…get your plans ready on-time!

Listen to the entire recording (including Q&A) via the Webex link and download the slides.

Links to the Standard Compliance Evaluation Review (SCER), as discussed on the webinar:

• SCER for Supply & Service Review
• Instructions for completing the SCER
• SCER for Section 503 Focused Review
• SCER for a Construction Review
• The FCCM (Federal Contract Compliance Manual)

Wednesday, March 18, 2020: Comments Open on FMLA Forms

The Wage and Hour Division issued a Notice of availability and request for comments on the various forms used to support the Family and Medical Leave Act of 1993 (FMLA). Under the Paperwork Reduction Act of 1995, the forms are valid for three years. The Agency seeks input on:

1. Whether the collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility;
2. if the information will be processed and used in a timely manner;
3. the accuracy of the Agency’s estimates of the burden and cost of the collection of information, including the validity of the methodology and assumptions used;
4. ways to enhance the quality, utility, and clarity of the information collection; and
5. ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.

Comments are due before April 17, 2020, at 11:59 EST.

What’s the deal with OMB Control Numbers?

A Federal agency generally cannot conduct or sponsor a collection of information extending to more than nine members of the public, and the public is not required to respond to an information collection unless the Office of Management and Budget (OMB) approves it and displays a currently valid OMB Control Number. In addition, a federal agency may not typically prosecute a member of the public for failing to comply with a collection of information that does not display a valid OMB Control Number, even if the agency actually does have the authority and approval to undertake the collection.

Wednesday, March 18, 2020: Families First Coronavirus Response Act Passed

In a swift sequence of events, the United States House of Representatives, Senate, and President agreed on the “Families First Coronavirus Response Act” to help the American people during these uncertain times and circumstances following the outbreak of the COVID-19 coronavirus on our shores.

In the wee hours of the morning on Saturday, March 14, 2020, the House passed H.R. 6201, and although the Senate made significant changes on Wednesday, it too passed the Bill, and the President signed it into law Wednesday. The Bill becomes effective on April 2, 2020.

Many provisions affect employers, from an Emergency Paid Sick Leave Act to a Family Medical and Leave Expansion Act. For a high-level breakdown of the regulations, see the Fisher Phillips Legal Alert.

Thursday, March 19, 2020: Job Opening – Administrative Review Board Chair

The U.S. Department of Labor (USDOL) posted a Notice advertising the vacancy of the Administrative Review Board (ARB) Chair, and inviting employment applications. The ARB’s primary mission is to serve as the administrative court of last resort within USDOL for over a dozen major enforcement statutes which provide appeal rights to the parties from adverse decisions (typically) rendered by trial judges known as ALJs (Administrative Law Judges) from the USDOL Office of Administrative Law Judges. The ARB Chair also directs other ARB Members and administrative and professional staff in the performance of the ARB’s mission. The Chair and the ARB Members also establish general policies for the ARB’s operations and promulgation of Rules of Practice and Procedure for all persons appearing before the ARB in the performance of its appellate review authority.

Acting Chair, Thomas Burrell currently leads the five-member Board.

Position Closing Date

Submit resumes (postmarked, if sent by mail; submitted electronically; or received, if hand-delivered) by 11:59 p.m. EST on April 09, 2020. See vacancy Notice for full details.

Thursday, March 19, 2020: EEOC Released Q&A on ADA and COVID-19

The Equal Employment Opportunity Commission (EEOC) created a webpage “What You Should Know About the ADA, The Rehabilitation Act, and COVID-19.” There is a list of eight common questions and answers employers may have. Keep in mind that the ADA and Rehabilitation Act rules continue to apply. Still, they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about recommended steps employers may take regarding COVID-19. Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.

Thursday, March 19, 2020: NLRB Suspended Representation Elections

Due to the extraordinary circumstances related to the COVID-19 pandemic, the National Labor Relations Board approved the suspension of all representation elections, including mail ballot elections, for the next two weeks effective immediately, through and including April 3, 2020.

In addition, the NLRB has temporarily closed two (San Francisco & Denver) regional offices due to possible COVID-19 Exposures.

Friday, March 20, 2020: OFCCP Continues Operations During COVID-19

The Office of Federal Contract Compliance Programs (OFCCP) announced that although its physical offices are closed, the Agency continues to operate remote. Compliance Reviews, Focused Reviews, and complaint investigations will continue (absent on-site visits). Like many of us during this time of “social distancing,” the Agency will rely on tools such as WebEx, Skype, and the good old fashioned telephone to complete interviews and continue to conduct business.​

Friday, March 20, 2020: DHS Announced Flexibility in Form I-9 Compliance

The Department of Homeland Security (DHS) announced that due to COVID-19 precautions surrounding physical proximity, it is exercising discretion to defer the physical presence requirements associated with Employment Eligibility Verification (Form 1-9). Employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence.

Temporary Process

Employers must still inspect the Section 2 documents; however, employers may temporarily examine the documents remotely (e.g., over a video link, fax or email, etc.).

Once Normal Operations Resume

Employers should conduct a physical review of the documents and enter “COVID-19” as the reason for the physical inspection delay in “Section 2 Additional Information.” After physically inspecting the documents, the employer should add “documents physically examined” with the date of inspection to the Section 2 Additional Information field on the Form I-9, or to Section 3 as appropriate.

For How Long?

Employers may implement these provisions for 60 days from this announcement (March 20, 2020), or within three business days after the termination of the National Emergency, whichever comes first.

What about E-Verify?

E-verify is extending the timeframe to take action to resolve Social Security Administration (SSA) Tentative Non-confirmations (TNC) due to SSA office closure to the public. Employers are still required to create cases for their new hires within three business days from the date of hire and must notify an employee about their TNC result as soon as possible.  After the employee is notified of their TNC and decides whether to take action to resolve the TNC, the employee should acknowledge the decision on the Further Action Notice, and the employer should notify E-Verify of their employee’s decision.

New temporary policies include the following:

• Employers must use the hire date from the employee’s Form I-9 when creating the E-Verify case. If case creation is delayed due to COVID-19 precautions, select “Other” from the drop-down list and enter “COVID-19” as the specific reason.
• Employers may not take any adverse action against an employee because the E-Verify case is in “interim case status,” or “extended interim case status.”

E-Verify Contact Center representatives are still available. Employers are still able to access their E-Verify accounts and, otherwise, process cases per usual.

Monday, March 23, 2020: EEOC Officially Seeks to Drop Component 2

The Equal Employment Opportunity Commission (EEOC) issued a Notice of Information Collection requesting a new control number and approval of the collection of the Employer Information Report (EEO-1). The Agency is seeking the Office of Management and Budget’s (OMB) approval to remove Component 1 from OMB control number 3046-0007 and assign it a new control number (see above story titled: “Comments Open on FLMA Forms” for more on OMB control numbers).

The EEOC is not submitting a request to continue Component 2 of the EEO-1 collection.

Comments are due before April 22, 2020, at 11:59 EST.

Special Alert: National Online Dialogue for Employers & Employees Regarding the Families First Coronavirus Response Act (FFCRA)

The U.S. Department of Labor will be hosting a national online dialogue to provide employers and employees with an innovative opportunity to offer their perspective as the Department develops compliance assistance materials and outreach strategies related to the implementation of the Families First Coronavirus Response Act (FFCRA). The ideas and comments gathered from this dialogue will inform compliance assistance guidance, resources, and tools, as well as outreach approaches, that assist employers and employees in understanding their responsibilities and rights under the FFCRA. We need your input by March 29, 2020. Anybody who is interested can participate online at https://ffcra.ideascale.com from March 23 through March 29, 2020 or can join a Twitter chat hosted by @ePolicyWorks on March 25, 2020 at 2 p.m. using the hashtag #EPWChat.

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.