OFCCP Week In Review: August 31, 2020

The 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 Chambers and Jennifer Polcer. In today’s edition, they discuss:

• WHD Provided Guidance on Compensable Hours and Remote Work
• EEOC State of the Union, Including to “Remember the Ladies”
• DE Gets the Scoop on OFCCP’s Native American Outreach Support
• The ADA Mediation Promise
• 100th Anniversary of the 19th Amendment – Women’s Right to Vote!
• EDI Winners get Candid on the Framework to Build a Disability-Inclusive Organization
• The Pandemic is a Blessing in Disguise for Diversity and Inclusion Recruitment Efforts
• OFCCP Issued National Emergency Exemption for Hurricane Laura Relief Efforts
• New FAQS from WHD on Return To School and FFCRA
• COVID-19 and Job Applicants and Employees with Disabilities: Emerging Practices to Employ and Protect Workers
• New OFCCP FAQ on AAP Treatment of Non-Binary Employees

Monday, August 24, 2020: WHD Provided Guidance on Compensable Hours and Remote Work

The U.S. Department of Labor’s Wage and Hour Division (WHD) issued a rare Field Assistance Bulletin on the topic of tracking compensable work hours non-exempt employees work remotely.

BACKGROUND: The Bureau of Labor Statistics recently estimated that in 2019 roughly 24% of working Americans performed some work at home on an average work day. However, the last time the WHD issued guidance pursuant to the Fair Labor Standards Act (FLSA)on the topic of compensable hours while working remotely was almost 60 years ago, in1961. Given the pandemic, more people are now working remotely than ever before, and WHD expects that many of these employees will remain working remotely post-pandemic.

Key Points

“An employer must pay for all hours worked that it knows or has reason to believe was performed.”

• An employer is required to pay its employees for all hours worked, including work not requested but “suffered” or “permitted,” including work performed at home. See 29 C.F.R. § 785.11-12.
• An employer may have either actual or constructive knowledge of additional unscheduled hours their non-exempt employees have worked. Courts also consider whether the employer acquired knowledge of the actual hours worked through reasonable diligence. See Allen v. City of Chicago, 865 F.3d 936, 945 (7th Cir. 2017), cert. denied, 138 S. Ct. 1302 (2018).
• One way an employer may exercise proper diligence is to provide a reasonable reporting procedure for unscheduled time and then compensating non-exempt employees for all reported hours of work, including those hours the employer did not request (but which it “suffered” or “permitted”).
• If a non-exempt employee fails to report unscheduled hours worked through a reasonable reporting procedure, the employer is not required to undergo impractical efforts to investigate further to uncover unreported hours of work and provide compensation for those hours. However, the FLSA will not find an employer’s time-reporting process reasonable where the employer either prevents or discourages an employee from accurately reporting the time he or she has worked, nor may an employee waive his or her rights to compensation under the FLSA.

Monday, August 24, 2020: EEOC State of the Union, Including to “Remember the Ladies”

Victoria Lipnic, Former Acting Chair and a current Commissioner of the Equal Employment Opportunity Commission (EEOC), addressed listeners of the National Industry Liaison Group (NILG) in its summer webinar series. Covering everything from current Commissioner Member status through the 100th anniversary of the certification of the right for women to vote (see Wednesday’s story below), Lipnic was once again candid, genuine, and passionate in her presentation.

Current Commissioner Line-Up

• Janet Dhillon (R), Chair (term ending July 1, 2022)
• Victoria A. Lipnic (R), Commissioner (holdover per statute) until the end of this Senate session
• Charlotte A. Burrows (D), Commissioner (term ending July 1, 2023)

There are two current Commissioner seat vacancies as well as a seat to replace Commission Lipnic (see the nominations announced in our June WIR).

COVID-19 Resources

Although there is nothing new to report here, Commissioner Lipnic reminded listeners that the EEOC released several resources throughout the COVID-19 pandemic. All COVID-19 related guidance may be found on the EEOC’s dedicated COVID-19 landing page.

Charge Statistics

Commissioner Lipnic spent a fair amount of time reviewing the Agency’s most recent statistics. You may recall that in June 2020, the Agency made visual formats available. In Fiscal Year 2019, charges of retaliation accounted for almost 60% of the charges filed, followed by disability, race, and sex discrimination.

Compensation claims while rising, continue to make up far less than 2% of all charges.

In light of the current state of affairs, it is yet to be seen if charges of harassment have increased. There were 66 lawsuits filed alleging harassment in FY18, which was a 50% increase from FY17. There were 48 filed and resolved harassment suits in FY19 (10 more resolutions than FY18). However, as the playing field has shifted for many to a remote work environment, Commissioner Lipnic recommended that employers need to consider how to educate employees and manage claims of online harassment in the workplace.

Litigation Statistics

For Fiscal Year 2019:

• 144 Merits suits filed (100 individual, 27 non-systemic class, 17 systemic)
• 172 Merits suits resolved
• $38.6Mil in monetary benefits in cases resolved

The majority of these suits fell under Title VII and the ADA, while less than ten fell under the Age Discrimination in Employment and Equal Pay Acts.

Recent Lawsuits

The Agency’s most recent significant lawsuits include such topics as physical abilities testing, age discrimination during a reduction in force, disability discrimination towards the deaf and hard of hearing, and a race, national origin, and sex discrimination suit alleging harassment, unequal pay, denials of promotions, and retaliation. See slides 14 and 15 of Commissioner Lipnic’s PowerPoint slides for more details on these cases.

Other Headlines

Rounding out Commissioner Lipnics’ address were highlights from the EEOC’s workplace respect training, issues to watch (within the Supreme Court, and surrounding the topics of pay, harassment, and age), the Agency’s spring regulatory agenda and finally, the celebration of the 100^th anniversary of the ratification of the 19^th Amendment of women’s right to vote.

You may recall at last years’ NILG Conference, Ms. Lipnic shared with us her personal commitment to read, in order, a biography on each President of the United States. After her extended studies on George Washington (she admittedly explained to us that she became fascinated with Washington, and thereby spent much longer researching him than expected), she has moved on to John Adams. Ms. Lipnic shared with us how First Lady Abigail Adams wrote to her husband on March 31, 1776, while he was at the first Continental Congress to: “Remember the Ladies.”

Review Ms. Lipnic’s entire presentation here.

Tuesday, August 25, 2020: DE Gets the Scoop on OFCCP’s Native American Outreach Support

The DE Partnership group hosted a webinar featuring Michael Nathanson of Native America Today and Theresa Lujan of the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) which spotlighted:

• Tools and best practices for recruiting and retaining Native Americans
• Benefits of the Indian Preference policy (stay tuned for sample affirmative action programs with language on using the Indian Preference Policy) and frequently asked questions
• How the OFCCP can connect employers to the right resources, including the Indian and Native American Employment Rights Program (INAERP), so diversity recruitment efforts are successful

BACKGROUND: According to the U.S. Bureau of Labor and Statistics, the unemployment rate for Native Americans and Alaska Natives is nearly double that of the unemployment rate for the country as a whole. Not unlike other minority races, barriers to employment and a lack of an inclusive work environment make finding meaningful and lasting employment hard to obtain. In November of 2019, OFCCP revved up its Native American outreach guidance and support. DirectEmployers (DE) wanted to learn the specifics surrounding the Agency support and guidance currently available to employers.

Did you Know?

• 2% (6.79 million) of the U.S. Population are Native Americans
• 75% of these individuals do not live on Indian reservations
• There are 574 federally recognized Native American tribes (interactive map with contact resources to come!)
• There are 37 accredited Tribal Colleges and Universities with over 30,000 students covering 350 educational programs
• There are 83 American Indian Vocational Rehabilitation Service Centers located on tribal lands in 25 states serving tribal members with disabilities to prepare for gainful employment
• November is Native American Heritage Month

Did you know the OFCCP offers Sensitivity Training specific to an employer’s location and tribal affiliations? Watch the DirectEmployers webinar and contact INAERP for more information.

Wednesday, August 26, 2020: The ADA Mediation Promise

As we continue to celebrate the 30^th anniversary of the Americans with Disabilities Act (ADA), the U.S. Department of Justice released its newest blog outlining how the Department is “furthering the promise.” This time, the Department spotlighted mediation under the ADA:

“Furthering the Promise: The ADA Mediation Promise”

With the enactment of the ADA, Congress expressly encouraged the use of alternative dispute resolution to resolve issues of conflict in disability rights matters. The Justice Department believes it’s voluntary ADA Mediation Program provides an efficient and effective alternative dispute resolution process to resolve complaints under the ADA. Since the inception of the Department’s program, mediation participants have taken more than 7,000 complaints to mediation in virtually every rural and urban area of the country. Approximately 78% of these mediated case were successfully resolved.

Although mediations are confidential, two recent participants in the ADA Mediation Program agreed to share their stories for the blog post. Read on to learn more about how Ms. Delories Guss faced barriers with a restaurant that was inaccessible: “Unfortunately, I had a terrible experience while dining in a restaurant chain. I went into the restroom and saw that there was no wheelchair accessible stall, which caused me a lot of stress and discomfort as I had to hop to move around while using the stall.”

Mr. Scott Bartholomew, who has multiple sclerosis and uses a wheelchair and a scooter for mobility, filed several complaints with the Department and agreed to have his concerns addressed through the ADA Mediation Program. All five of his complaints were resolved successfully through mediation. Bartholomew continues to work informally with businesses in his community to raise awareness about the access needs of individuals with mobility disabilities.

Wednesday, August 26, 2020: 100th Anniversary of the 19th Amendment – Women’s Right to Vote!

In 1920, the United States Congress passed the 19th Amendment to the Constitution granting women full and equal voting rights. Every year on August 26 (the day it was certified), we commemorate this right with National Women’s Equality Day.

Birth of a Movement

While in London at the World Anti-Slavery Convention 1840, several women were denied access to the convention floor thus planting the seeds for a women’s rights movement. Lucretia Mott and Elizabeth Cady Stanton, along with others, set in motion plans for the first woman’s rights convention in Seneca Falls, New York. Held at Wesleyan Chapel on July 19-20, 1848, the conference drew 200 women the first day. On the second day, the convention opened to men, and some did attend.

During the convention, leaders presented 12 resolutions. They enumerated in the rights that women should be equal to men socially, economically, legally, and representatively. Of the resolutions, all but the 9th were approved unanimously – the right to vote created concern. Many women felt it would cause large numbers of their backers to withdraw their support. However, after much debate and the support of abolitionist Frederick Douglass, the 9th resolution also passed.

The Right to Vote

Ultimately, it would take years before an amendment made it to Congress. For several years, advocates continued passing the batons. New states entered the union. Their constitutions included rights for women that states before them never had – the right to vote. Civil disobedience ensued. Eventually, with women gaining equality, Congress passed the 19th Amendment to the Constitution.

National Women’s Equality Day History

On July 30, 1971, Rep. Bella Abzug (D-NY) presented a bill designating August 26th as Women’s Equality Day. That year, rallies, celebrations and political debate filled the country on August 26th. By 1973, Congress passed a joint resolution declaring the day to be observed on August 26th of each year. Every year since each president declares this day as Women’s Equality Day commemorating the certification of the 19th Amendment to the United States Constitution.

Wednesday, August 26, 2020: EDI Winners get Candid on the Framework to Build a Disability-Inclusive Organization

In March of 2020, the U.S. Department of Labor announced that CVS Health (a DE Member!) and PepsiCo received the coveted Gold Award in the Department’s inaugural Excellence in Disability Inclusion (EDI) Awards program. The program recognizes federal Government contractors that demonstrate excellence in making their workforces inclusive for individuals with disabilities.

As part of their “year of engagement” to help other organizations learn and be successful, both organizations participated in the 2020 summer NILG webinar series to share their Best Practices with attendees. The webinar followed EARN’s “Framework for Building a Disability-Inclusive Organization.” CVS Health and PepsiCo spoke to the steps their organizations took which led them to be the gold standard on disability inclusion.

Ivy Latimer, Senior Director Equal Employment Opportunity/Affirmative Action and Strategic Diversity Management and Rick Laferriere, Senior Manager Workforce Initiatives spoke on behalf of CVS Health while Kevin Fitzpatrick, EEO/AA Compliance Director,  spoke on behalf PepsiCo. 

Lead the Way

• How does your organization establish its commitment to inclusion?

What’s working?

Both organizations stressed the importance of leadership buy-in and support. From the CEO and Board of Directors to Diversity Leadership Councils to Employee Resource Groups, getting everyone involved at all levels is key. At CVS Health a Workforce Initiatives Team works to Educate, Equip, and Empower while at PepsiCo, the Disability Employee Resource Group “Enable” helps drive disability awareness and inclusion.

Build the Pipeline

• How do you conduct outreach to qualified candidates with disabilities?

What’s working?

Both organizations take the approach that outreach initiatives must be 100% business based (verses charity). Partnerships from the federal, state, and local levels, both companies agreed, are critical for success. CVS Health boasts over 1200 partners while PepsiCo uses over 8000 Community Based Organizations (CBO’s) for support in building their talent pipeline.

Hire (and Keep) the Best

• What steps do you take to ensure access to hiring?

What’s working?

Be transparent with your partners and CBO’s when it comes to job descriptions and company culture. Thoroughly review the hiring process to identify and correct any barriers. Meet accessibility standards and recommendations (including JAWS screen reader compatibility) and have a process available on-demand for translation assistance (PepsiCo uses Purple).

Ensure Productivity

• How does your organization provide a requesting applicant or employee access to a reasonable accommodation?
• How do you ensure that your managers and employees are aware of reasonable accommodation policies and processes?

What’s working?

Both companies use a centralized accommodation process (which OFCCP also endorses as a best practice). Other wins include specific and dedicated internal websites for employees, language interpreters, including closed captioning when applicable, and having American Sign Language(ASL) interpreters available for meetings. Both companies felt that educating employees on the Americans with Disabilities Act (ADA) and Equal Employment Opportunity (EEO) policies was incredibly essential. Both companies spoke highly of the Job Accommodation Network (JAN) and how having this resource on-demand gives managers the tools they need to be successful to assist employees.

Communication

• How do you leverage communication to elevate your inclusion strategies?
• What innovative approaches have proven effective?

What’s working?

Newsletters, intranet, disability myth-busters, and highlighting success stories (see CVS Health’s Abilities & Abundance video and PepsiCo’s You Belong Here video) are proven wins. Both companies reported that partnering with their corporate communications team had also helped inclusion strategies.

Be Tech-Savvy

• How do you approach accessible technology?

What’s working?

CVS Health worked with its branding team to address accessible color contrast. PepsiCo ensures JAWS compliant WebEx meetings and allows for requests for reasonable accommodations at meetings.

Measure Success

• What strategies have proven effective to increase self-identification rates?

What’s working?

Most organizations are looking for the “secret sauce” when it comes to increasing disability self-identification numbers. These organizations have identified that a lack of understanding and trust are the biggest hurdles to overcome. That said, both organizations reported that they put a lot of work into showcasing personal success stories. CVS Health has a “Stamp out Stigma” campaign on mental health, and by using key messages and answering frequently asked questions surrounding the self-identification process, they continue to build trust and understanding. This year, PepsiCo launched its “What’s in it for you?” campaign to help further educate its employees on the importance of the self-identification process.

To hear the full presentation, visit the NILG website.

Thursday, August 27, 2020: The Pandemic is a Blessing in Disguise for Diversity and Inclusion Recruitment Efforts

During his highly anticipated and brutally candid “Recent Significant OFCCP Developments” presentation, John Fox, per the usual, told listeners of the 2020 NILG webinar series where the OFCCP is, where it is going, and in particular, this year, how to “be the change you want to see.” John’s packed agenda (87 slides) included these topics:

• how the pandemic is a blessing in disguise for diversity and inclusion (D&I) (slides 7-10),
• the incredible shrinking, adaptable AND evolving OFCCP (slides 11-38),
• the confusion over who is “Similarly Situated,”(slides 39-58)
• why federal Government contractors are still at odds with OFCCP over discrimination claims (slides 59-69),
• lessons to be learned from OFCCP’s enforcement statistics (slides 70-75),
• the happy ending:
  1. How to undertake employment preferences the right way (i.e., lawfully)(slides 76-83)
  2. How to convert your AAP into an intelligent D&I Generator (slides 84-86)
  3. Employers call to action (slide 87: Find a Way or Make a Way!)

With daily headlines bombarding the nation with doom and gloom, John told listeners how to make some lemonade out of the bushels of lemons being thrown our way. His analogy? The 7-Eleven conundrum…

Imagine if your organization had a 400% turnover rate. See – feel better? (Unless of course, you are a recruiter for 7-Eleven, if so, know that after John’s presentation, the masses are offering their thoughts of encouragement and support). Now take into consideration that last month alone, 1.8 million jobs were filled. This is the third largest hiring month in U.S. history! What does this mean? It means that, unless you are 7-Eleven (again, sorry team 7-Eleven), you must not blow this hiring opportunity. It’s your chance to expand and move the needle in your diversity and inclusion recruitment efforts. With more jobs available now than during the deep recession of 2008-2011, this may be (let’s hope it will be) the single biggest opportunity in your lifetime to tap into the massive amount of qualified diverse candidates looking for work.

To learn more about these numbers as well as a wealth of information provided in John’s recap, you’ll want to check out the full presentation on the NILG website. If you missed the presentation or have a question you didn’t have the opportunity to ask during the show, DirectEmployers has you covered (we have John on our secret bat phone)!

Send your questions to Jennifer Polcer (compliance@directemployers.org) and we will follow up on your behalf!

Thursday, August 27, 2020: OFCCP Issued National Emergency Exemption for Hurricane Laura Relief Efforts

Due to the impact of Hurricane Laura, OFCCP has issued a temporary exemption from certain federal contracting requirements. The exemption follows the same outline as other prior National Emergency Exemptions the Agency has issued. For the three-month period from August 27, 2020, to November 27, 2020, both new federal Supply and Service and Construction contracts to provide Hurricane Laura relief efforts are now exempt from some obligations under Executive Order 11246, VEVRAA, and Section 503. Keep in mind that should a contractor have existing covered federal Government contracts; these exemptions do NOT apply to those contracts. Rather, OFCCP’s newly announced exemptions are only for NEW contracts that aid in Hurricane Laura relief efforts.

Contractors with new contracts to provide relief efforts for Hurricane Laura are not obligated to:

• Develop the affirmative action program, prepare the reports, or provide the notices OFCCP’s Rules otherwise require of those contractors subject to Executive Order 11246, and/or Section 503 of the Rehabilitation Act of 1973, and/or Section 4212 of the Vietnam Era Veterans’ Readjustment Assistance Act, as amended.

However, the exemption specifically points out that contractors must continue to:

• Post the “Equal Opportunity is the Law” notice, and
• Follow recordkeeping and record retention regulations, and
• List employment openings with the appropriate local employment service office or American Job Center (pursuant to VEVRAA’s implementing Rule at 41 CFR Section 60-300.5).

Additional Resource

• Hurricane Laura National Interest Exemptions FAQs

Thursday, August 27, 2020: New FAQS from WHD on Return To School and FFCRA

The U.S. Department of Labor’s Wage and Hour Division (WHD) and the Employment and Training Administration (ETA) announced new guidance in the form of three new Q&As related to the reopening of schools amid the COVID-19 pandemic and paid leave.

With the addition of the “Return to Work” category, WHD is now at 100 Frequently Asked Questions (FAQs) for both employees and employers. The latest three Q&As discuss which employees may qualify for paid leave under the Families First Coronavirus Response Act (FFCRA). These three Q&As explain the benefits and protections available under both the paid sick leave and pursuant to the expanded family and medical leave provisions of FFCRA. Questions are categorized under the following topics:

• Definitions
• Eligibility
• Coverage
• Application
• Enforcement
• Return to School (NEW)

The three new FAQ’s under the “Return to School” category are:

• My child’s school is operating on an alternate day (or other hybrid-attendance) basis. The school is open each day, but students alternate between days attending school in person and days participating in remote learning. They are permitted to attend school only on their allotted in-person attendance days. May I take paid leave under the FFCRA in these circumstances? 
• My child’s school is giving me a choice between having my child attend in person or participate in a remote learning program for the fall. I signed up for the remote learning alternative because, for example, I worry that my child might contract COVID-19 and bring it home to the family. Since my child will be at home, may I take paid leave under the FFCRA in these circumstances?
• My child’s school is beginning the school year under a remote learning program out of concern for COVID-19, but has announced it will continue to evaluate local circumstances and make a decision about reopening for in-person attendance later in the school year. May I take paid leave under the FFCRA in these circumstances? 

ETA also released guidance that provides states with information regarding the eligibility of individuals who are caregivers for Pandemic Unemployment Assistance (PUA) under the CARES Act. PUA is designed to provide benefits to certain individuals who are normally ineligible for or who have exhausted an entitlement to regular unemployment compensation (UC) or extended benefits (EB).

The new guidance explains how states should evaluate an individual’s eligibility for PUA when:

• Scenario 1: The school system goes fully online as a direct result of the COVID-19 public health emergency.
• Scenario 2: The school system operates in a “hybrid” environment as a direct result of the COVID-19 public health emergency, where students attend school in-person some days of the week, with the rest of the week being done remotely, online.
• Scenario 3: The school system provides students the option to stay home and attend online classes or to attend school in-person full time.

Additional Resources

• An online tool for employees to determine their eligibility for paid leave
• Short videos explaining the law’s benefits
• Infographics

Friday, August 28, 2020: COVID-19 and Job Applicants and Employees with Disabilities: Emerging Practices to Employ and Protect Workers

The Employer Assistance and Resource Network on Disability Inclusion (EARN) announced the publication of “COVID-19 and Job Applicants and Employees with Disabilities: Emerging Practices to Employ and Protect Workers.” This policy brief examines intersecting issues related to the Americans with Disabilities Act (ADA) and the COVID-19 pandemic. The ADA is relevant to the COVID-19 pandemic in at least three major ways:

• It regulates covered employers’ permissible disability-related inquiries and medical examinations for all applicants and employees; and
• It prohibits covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat” (i.e., a significant risk of substantial harm even with reasonable accommodation to themselves or others); and
• It requires reasonable accommodations for individuals with disabilities (absent undue hardship).

EARN’s policy brief also helps guide employers to support the employment, health, and safety of all job applicants and employees, including qualified individuals with disabilities. It recognizes that Title I of the ADA does not interfere with employers following the advice from the Centers for Disease Control and Prevention (CDC) and other public health authorities on appropriate steps to take relating to the workplace.

Friday, August 28, 2020: New OFCCP FAQ on AAP Treatment of Non-Binary Employees

The Office of Federal Contract Compliance Programs (OFCCP) recently added a new Frequently Asked Question (FAQ):

Q: How should contractors handle counting employees and/or applicants who identify as a gender other than male or female such as Gender X as is recognized in California?

A: Those contractors that must develop and maintain Affirmative Action Programs under Executive Order 11246 are required to invite all applicants and employees to voluntarily self-identify their gender (as well as their race and ethnicity). OFCCP has not mandated a particular method for a contractor to obtain information about a person’s gender. If an employee or applicant chooses to self-identify as non-binary, or as a gender other than male or female, the contractor must still include the individual in its AAP submission. However, the contractor may exclude that individual’s data from the gender-based analyses required by OFCCP’s regulations. OFCCP’s FAQs specify that a contractor may not ask applicants or employees for documentation to prove their gender identity or transgender status.

For more information on the topic on non-binary and government reporting, see the still popular Blog John Fox and Jay Wang last updated six-months ago for DE: “The “Non-Binary” Dilemma: Federal Gender Reporting When “Male” & “Female” Are No Longer the Only Realities in the Workplace.”

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.