OFCCP Week In Review: May 10, 2021

• Workplace Resources for Autism Spectrum Disorder
• Comment Now on Equal Employment Opportunity in Apprenticeships
• The Advisory Committee on Apprenticeships is Back – and Seeks New Members
• RIP Independent Contractor Rule
• NLRB Seeks Input on Backpay Filing Deadlines
• Thank You Military Spouses!
• Apprenticeship for All Podcast Series
• April Employment Situation Looked Strong, But Not As Strong As Many Had Hoped Given the Still 8 Million Employees The Pandemic Has Displaced

Monday, May 3, 2021: Workplace Resources for Autism Spectrum Disorder

April is Autism Acceptance Month. In 1970, the Autism Society launched an ongoing nationwide effort to promote autism awareness and assure that all affected by autism can achieve the highest quality of life possible. In 1972, the Autism Society launched the first annual National Autistic Children’s week, which evolved into Autism Acceptance Month (AAM).

The U.S. Department of Labor’s Employment and Training Administration (ETA) spotlighted the following available resources:

• OSEP Fast Facts – Children Identified with Autism – The Office of Special Education Programs (OSEP) from the U.S. Department of Education developed an interactive infographic on students with autism. The information displays data collected as part of the Individuals with Disabilities Education Act’s (IDEA) Section 618 requirement for states to submit data about infants, toddlers, and youth with disabilities birth through age 21. Note, in School Year 2017-2018, 72% of students with autism graduated with a regular high school diploma.

• Accommodation Ideas for Autism Spectrum – The Job Accommodation Network (JAN) developed a resource on accommodation ideas to support individuals with autism to help them succeed in the workplace. Melanie Whetzel, JAN’s Team lead on Neuro accommodations joined us for our earlier DE Disability Roundtable Masterclass on Understanding & Accommodating Autism in the Workplace. If you missed Melanie’s keen insights on autism accommodations, see below re DE The Academy rebroadcast opportunity.

• Autism @ Work Playbook – Disability:IN resource established by four leading employer autism-focused hiring initiatives, which shares an overview of business models, and guides employers interested to develop autism-focused hiring initiatives.

DirectEmployers Members – Did you miss the DE Disability Roundtable Masterclass on Understanding & Accommodating Autism in the Workplace? (See WIR 2/26/21 “DE Masterclass Education Series Kicked off with Astounding Reviews!”) Contact the DE Academy to get access to the Masterclass Series as well as other on-Demand Training Opportunities!

Monday, May 3, 2021: Comment Now on Equal Employment Opportunity in Apprenticeships

The U.S. Department of Labor’s Employment and Training Administration (ETA) published a Notice of Availability with a Request for Comments on the “Registration and Equal Employment Opportunity in Apprenticeship Programs.”

If approved, this Information Collection Request will:

• enable ETA to refine its data collection concerning the registration of apprenticeship programs,
• properly assess the types of sponsors that are seeking to register an apprenticeship program and the level of growth in apprenticeship,
• collect the data necessary to calculate the nationally registered apprenticeship program and apprentice totals,
• implement the requirements of the Veterans Apprenticeship and Labor Opportunity Reform (VALOR) Act (L. 115-89), and
• continue to enable ETA to collect data from registered apprenticeship programs relating to equal employment opportunity and from applicants and/or apprentices who file a discrimination complaint.

Desired comments include:

• 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;
• if the information will be processed and used in a timely manner;
• 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;
• ways to enhance the quality, utility, and clarity of the information collection; and
• ways to minimize the burden of collecting information on those who are to respond, including the use of automated collection techniques or other forms of information technology.

For additional information about this Information Collection Review, see our WIR 01/13/21: “Comment Now on the Registration & EEO in Apprenticeships Program.” For more on EEO in apprenticeships, Apprenticeship.gov has a dedicated webpage of resources.

Comment on or before June 2, 2021.

Tuesday, May 4, 2021: The Advisory Committee on Apprenticeships is Back – and Seeks New Members

The U.S. Department of Labor’s Employment and Training Administration (ETA) published a Notice of Intent To Reestablish the Advisory Committee on Apprenticeship (ACA) Charter and Request for Member Nominations.

Why? President Biden directed the reinstatement.

For the full scoop, see our WIR 2/17/21: “Biden Administration Pulls Back on Industry Designed Apprenticeship Programs to Drive Apprenticeships Back to Union-Supported Registered Apprenticeship Programs.” There is currently no active charter for the ACA as the previous ACA charter expired on December 19, 2018. Also, if you want some additional details, you should contact Candee Chambers and/or Shannon Offord at DE since they were Members of the previous Advisory Committee on Apprenticeship.

The ACA will consist of a range of 27-30 voting members, appointed to one- and two-year terms, to represent labor, employers, and the public, including:

• Employers or Industry Associations
• Labor or Joint Labor-Management Organizations
• Members of the Public that represent one of the following:

State apprenticeship agencies/councils; State or local workforce development boards; community-based organizations; career and technical education schools, or local educational Agencies; postsecondary education and training providers; providers of industry-recognized credentials; apprenticeship intermediaries; or active or recently completed youth apprentices (age 16-24).

The Committee will focus on building up the Registered Apprenticeship Programs and, in particular, expanding apprenticeships into fast-growing industries and sectors like clean energy, technology, and healthcare. Equal opportunity and diversity are also vital components.

“The Advisory Committee on Apprenticeship will bring experts together to develop recommendations for an inclusive apprenticeship program that promotes equity for all participants,” said U.S. Secretary of Labor Marty Walsh. “Apprenticeships offer good-paying jobs and a path to the middle class. The Committee will help us ensure that people seeking apprenticeship reflect the broad diversity that has always made America strong.”

Interested persons may submit ACA nominations, including relevant attachments, to AdvisoryCommitteeonApprenticeship@dol.gov (and please specify in the email subject line, “Nominations for Advisory Committee on Apprenticeship (ACA).” The deadline for nominations is June 3, 2021.

Wednesday, May 5, 2021: RIP Independent Contractor Rule

The roller coaster ride comes to an end…for the moment. Lawsuits will likely surely follow. The U.S. Department of Labor’s Wage and Hour Division (WHD) announced the publication of the withdrawal of the “Independent Contractor Rule.” Was there ever any doubt?

According to WHD, it ultimately decided on full withdrawal because:

• the prior Rule the Trump Administration proposed was in tension with the FLSA’s text and purpose, as well as relevant judicial precedent,
• the Rule’s prioritization of two “core factors” for determining employee status under the FLSA would have undermined the longstanding balancing approach of the economic realities test and court decisions requiring a review of the totality of the circumstances related to the employment relationship, and
• the Rule would have narrowed the facts and considerations comprising the analysis of whether a worker is an employee or an independent contractor, resulting in workers losing FLSA protections.

The Agency also believes that the withdrawal will:

• avoid a reduction in workers’ access to employer-provided fringe benefits such as health insurance and retirement plans,
• avoid a reduction in other benefits such as unemployment insurance and workers compensation coverage.

U.S. Secretary of Labor Marty Walsh explained,

“By withdrawing the Independent Contractor Rule, we will help preserve essential worker rights and stop the erosion of worker protections that would have occurred had the rule gone into effect. Legitimate business owners play an important role in our economy but, too often, workers lose important wage and related protections when employers misclassify them as independent contractors. We remain committed to ensuring that employees are recognized clearly and correctly when they are, in fact, employees so that they receive the protections the Fair Labor Standards Act provides.”

For more background, see our prior Blog 1/11/21: “USDOL’s New Independent Contractor Final Rule is DOA, Or Is It? Not So Fast!”

Because the USDOL’s withdrawal of its proposed Independent Contractor Rule is such a big deal, contributing WIR author Jay Wang, Esq., the Wang in Fox, Wang and Morgan P.C., wrote a Blog this week about the USDOL’s withdrawal of the proposed Rule. Dive in to this story by clicking the image below, or using this link.

Thursday, May 6, 2021: NLRB Seeks Input on Backpay Filing Deadlines

The National Labor Relations Board issued a Notice and Invitation to file briefs on the deadlines for the forms and reports that employers are required to file when the Board has ordered the employer to pay backpay to employees.

In the case Cascades Containerboard Packaging—Niagara, the Board found that the employer violated the National Labor Relations Act and, therefore, ordered the employer to pay backpay to affected employees. Additionally, at the NLRB General Counsel’s request, the Board adopted a new remedy requiring the employer file with the NLRB Regional Director a copy of each backpay recipient’s appropriate W-2 form(s). This requirement was in addition to the existing requirement for the employer to submit backpay allocation reports to the NLRB Regional Director within 21 days of payment.

The Acting General Counsel has asked the Board to impose a deadline for W-2 form filing.

Parties and interested amici should address the following questions: 

• Should the Board impose a deadline within which a respondent employer must furnish to a Regional Director a copy of each backpay recipient’s appropriate W-2 form(s), reflecting the backpay award? If so, what should the deadline be?
• Should the Board modify the 21-day deadline to submit a report allocating the backpay award to the appropriate calendar year for each affected employee? If so, what modification would be appropriate?

Filing Details

• Briefs should not exceed 25 pages
• File briefs electronically (gov - “E-Filing”) with the Board in Washington, D.C., on or before June 7, 2021

Parties may file responsive briefs on or before June 22, 2021, which shall not exceed 15 pages in length.

Friday, May 7, 2021: Thank You Military Spouses!

Here at DirectEmployers Association, we honor our military servicemen and women and their spouses EVERYDAY!

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) released a bulletin in honor of Military Spouse Appreciation Day, spotlighting how OFCCP works to ensure equal employment opportunities for veterans and their spouses: “OFCCP has specific protections in place to protect military spouses from workplace discrimination. Under the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA), it is unlawful for a federal contractor to discriminate in employment against a qualified individual who the contractor knows to be the spouse of a protected veteran.”

U.S. Department of Labor Resources

• From OFCCP: Military Spouses Frequently Asked Questions (FAQ) discusses covered contractors’ affirmative action and non-discrimination obligations under Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) and other relevant information.
• From VETS (Veterans’ Employment and Training Service): a dedicated webpage for military spouses and a new series of stand-alone virtual workshops called TEAMS (Transition Employment Assistance for Military Spouses) to help military spouses with their job searches.

Friday, May 7, 2021: Apprenticeship for All Podcast Series

The U.S. Department of Labor Office of Disability Employment Policies (ODEP) announced a new podcast series.

The “Apprenticeship for All” podcast series, hosted by the Partnership on Inclusive Apprenticeship and the HR blog Workology.com, explores how inclusive apprenticeship programs increase employment opportunities for people with disabilities.

Episodes of the podcast currently available include “Why Hiring Apprentices with Disabilities Improves Companies’ Bottom Line,” “Creating a Diverse Workforce through Apprenticeship,” and “How Apprenticeships Support Diversity & Inclusion in the Tech Workplace.”

Friday, May 7, 2021: April Employment Situation Looked Strong, But Not As Strong As Many Had Hoped Given the Still 8 Million Employees The Pandemic Has Displaced

Here is what Secretary of Labor Marty Walsh had to say about it:

“… we have a steep climb ahead of us. We have yet to recover roughly eight million jobs that existed prior to the pandemic. Racial inequities in the unemployment picture persist, as the Black unemployment rate increased slightly to 9.7 percent, the Hispanic rate held level at 7.9 percent, the Asian rate dropped to 5.7 percent, and the white rate fell to 5.3 percent.”

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.