Update: Additional information on CSALs

As a follow up to our post yesterday, there is additional information available regarding OFCCP’s recent mailing out of courtesy scheduling announcement letters.

After a hiatus for the past few years, OFCCP has officially confirmed it has once again sent out CSALs. dated February 17th.  Here are some additional details regarding this wave of notices:

  • OFCCP is characterizing this as the “first” release of CSALs
    • OFCCP has not confirmed if and when another round will go out
  • Approximately 800 notices were mailed
  • 375 distinct companies were noticed
    • This means some companies will receive notices for multiple establishments
  • The companies were from 29 different industries based on reported NAICS codes
  • 30 Corporate Management Compliance Evaluations (CMCEs) were included in the notices

It’s important to keep in mind that a CSAL does not commence an audit (only a scheduling letter can do that) and does not guarantee an audit.  Moreover, OFCCP can audit locations not listed on a CSAL.

Now that OFCCP has decided to once again give contractors advance notice of upcoming audits, its imperative that employers take advantage of this gift of extra-time to ensure they are prepared to submit a compliant AAP once their audit actually commences.

 

BREAKING NEWS: Advance OFCCP Audit Notification Letters Sent Out

It has come to our attention that OFCCP has sent out Courtesy Scheduling Announcement Letters providing contractors with advance notice of upcoming OFCCP audits.  Signed by interim Director Tom Dowd, dated February 17, 2017 and addressed generically to Human Resources Director, the letters provide warning that the establishment listed has been selected for an impending OFCCP compliance review.

The size and scope of this potential “wave” of CSALs is unknown at this point. We will update as soon as we have more details.

Acting Solicitor of Labor Named

Last week, amidst the drama of Andrew Puzder’s withdrawal from consideration as the Secretary of Labor, the Trump administration quietly appointed Nicholas Geale as the acting Solicitor for the Department of Labor.  The Solicitor of Labor is counsel for the various agencies within the Department of Labor, such as OFCCP and OSHA, representing them in litigation and initiating lawsuits on their behalf.

Geale is a Department of Labor veteran, previously serving under President George W. Bush.  His appointment is yet another key piece of the Department of Labor leadership team under President Trump.  With this appointment, and following the confirmation of Alex Acosta, the President’s alternative nominee for Secretary of Labor, the Administration can move forward with the identification of Agency heads, including a new Director of OFCCP.

Trump Announces R. Alexander Acosta as Replacement Labor Secretary Nominee

Wasting no time to identify a replacement following Andrew Puzder’s withdrawal from consideration for Secretary of Labor, President Trump announced today that he has tapped R. Alexander Acosta for the role.  Acosta, who is the only Hispanic nominee in Trump’s cabinet, is a former U.S. Attorney and at one-time sat on the National Labor Relations Board.  While nothing is guaranteed, it would seem, unlike Puzder’s, Acosta’s confirmation should be met with widespread support.   However, as we find ourselves saying on an almost daily basis these days, stay tuned for future developments.

Andrew Puzder Withdraws as Secretary of Labor Nominee

Andrew Puzder has withdrawn from consideration as Secretary of Labor.  As we previously reported, Puzder’s confirmation hearing, scheduled for tomorrow, had been postponed multiple times amid increasing scrutiny surrounding his corporate and personal business dealings. His withdrawal came today amid reports that support among Republican Senators was faltering.

A replacement nominee has not yet been named but we will provide an update as soon as one is available.  Stay tuned.

Confirmation Hearing back on for Secretary Of Labor Nominee Puzder

After multiple delays, the confirmation hearing for President Trump’s Secretary of Labor nominee Andrew Puzder has been reportedly reset for February 16.

Puzder’s nomination has drawn heavy criticism and, when the hearing actually moves forward, he will most certainly face pointed questions regarding his business dealings, employment practices and positions on laws and regulations impacting employers and employees.

 

OFCCP – Here to Stay or Not? Signs Indicate OFCCP Will Survive

With the transition to a new presidential administration well under way, everyone is looking for signs to help predict the future.  Given President Trump’s sweeping executive action, including entering an Executive Order requiring the identification of two regulations to be eliminated for every new regulation proposed, the question of whether the make-up of the federal agencies as we know it will survive a new administration and cabinet.  Of particular importance to government contractors is the question of whether a Trump Administration suggests the end of OFCCP.  The question has been asked privately and in the media – might OFCCP be eliminated as redundant and unnecessary?

One recent event suggests otherwise. This week, the White House announced President Trump’s decision to leave intact President Obama’s landmark LGBT executive order prohibiting discrimination on the basis of sexual orientation and gender identity.

The President’s move suggests the Administration does, indeed, value the anti-discrimination protections and affirmative action principles of Executive Order 11246, as well as Section 503 and VEVRAA. Far from suggesting a demise of the long-standing Executive Order 11246 – the centerpiece of OFCCP’s existence – the President’s move suggests he stands by a historic expansion of protections, with one caveat.  President Trump has also said he will sign, if passed by Congress, the First Amendment Defense Act (FADA), which could carve out a large exception to the protections of the LGBT Order.

The new Administration may further curtail OFCCP’s budget, as well as scale-back compliance and audit burdens. We believe the eventual DOL Secretary  (which may be some time coming given the repeated and now indefinite confirmation delay) and OFCCP Director will follow the President’s lead to forego new regulations and, perhaps, rollback some aspects of existing regulations. A reprieve that likely will be welcomed by many in the contractor community .

However, while the landscape for federal contractors may  certainly change under the current administration, the elimination of OFCCP would leave a noticeable void given its vital function to advance not only equal employment opportunity but also foster affirmative action for women, minorities, veterans and the disabled, a role not duplicated by EEOC or any other federal agency.

Disability Self-ID form approved for another 3 years

As some of you may have noticed, the current OMB approval for the required disability self-identification form expired January 31, 2017.  On the eve of its expiration, OMB approved the form for another three years – until  January 31, 2020.

An updated version of the form (in multiple languages) can be found here.  According to OFCCP’s website, employers can either download the new form, or update their existing electronic version of the form the reflect the new expiration date.

President Trump Preserves LGBT Executive Order

The New York Times reported this week President Trump will preserve intact President Obama’s LGBT order (Executive Order 13672) protecting applicants and employees from discrimination on the basis of sexual orientation and gender identity.  As published by the Times, a White House statement provides:

President Trump continues to be respectful and supportive of L.G.B.T.Q. rights, just as he was throughout the election… The president is proud to have been the first ever G.O.P. nominee to mention the L.G.B.T.Q. community in his nomination acceptance speech, pledging then to protect the community from violence and oppression.

The LGBT Order amended Executive Order 11246, signed by President Johnson in 1965, but beyond its centerpiece anti-discrimination provisions does not require affirmative action from federal contractors. For example, the LGBT Order and regulations impose no outreach, data collection or analysis obligations.  Federal contactors must only include “sexual orientation” and “gender identity” in extended EEO taglines, but may continue to use an abbreviated tagline without such references.  Contractors must also post an OFCCP-supplement to the “EEO is the Law” poster, until the poster is updated.

By the time the Order was signed in July 2014, many contractors had already implemented EEO policies protecting gender identity and sexual orientation and many contractors have since enshrined these protections in their EEO Policy Statements and handbooks, going beyond the requirements of the LGBT Order.

President Trump’s decision on this Order is not, however, likely to be the last word on the topic. During the campaign, the candidate stated he would support the controversial First Amendment Defense Act (FADA).  If passed and signed by the President, FADA would essentially prevent the federal government from taking adverse action against people, businesses or institutions which discriminate based on sexual orientation according to a belief that “marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.”

We will provide an update if and when FADA is reintroduced in Congress.

Victoria Lipnic Appointed as Acting EEOC Chair

Continuing the fervor of activity that has filled his first days in office, President Trump has appointed Victoria Lipnic as Acting Chair of the Equal Employment Opportunity Commission (EEOC).

Commission Lipnic has served on the Commission since being appointed in 2010 by President Obama.  Her current term is set to run through June 2020.

The press release announcing her appointment reports that prior to her role as a Commissioner, Lipnic served as Assistant Secretary of Labor for Employment Standards where she oversaw divisions that “revised regulations on overtime, the Family and Medical Leave Act, and issued the first-ever regulations for OFCCP to evaluate compensation discrimination.”

Recently, Commission Lipnic expressed concern with the Commission’s pay data collection changes to the EEO-1 report.  Employer interest in the future of the EEO-1 pay data reporting tool under President Trump is high, and Commissioner Lipic’s appointment as the Acting Chair may give insight into what the future holds for the report; however, nothing definitive has been reported so must continue to wait and see what official action is taken.  Stay tuned . . .

 

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