Impact of “Hire American” Executive Order on Federal Contractor Staffing

At a ceremony in Wisconsin this week, President Trump signed yet another executive order, this one entitled, “Buy American and Hire American.”

What does this mean for federal contractors?  It’s not exactly clear at this point, but as our colleagues have previously discussed, the “hire American” portion of the President’s latest Executive Order is focused on revamping the H-1B visa program.  This will impact the make-up of employers employee populations for those contractors who rely on the program to help meet their staffing needs.  As a result, the executive order could possibly necessitate a change to recruiting strategies for contractors.

To be prepared, contractors should start planning ahead and working with their recruiting teams to develop strategies for recruiting and filling open positions going forward.  This is also an opportunity to revisit and bolster your good faith outreach programs to address staffing needs.

Veteran Hiring Benchmark Reduced – Again

OFCCP has released its revised VEVRAA hiring benchmark for 2017.  The agency has lowered the benchmark to 6.7 percent, down from the previous 6.9 percent mark.

As was the case last year, the agency provided guidance for contractors to implement the new benchmark stating:

Contractors who adopted the previous year’s national benchmark of 6.9 percent after March 4, 2016, but prior to this announcement, may keep their benchmark at 6.9 percent.  

This move is the third reduction of the benchmark since its inception in March 2014.

It’s Official: Blacklisting Executive Order Revoked

As anticipated, President Trump has put an end to Executive Order 13673 – Fair Pay & Safe Workplaces, also known as the “blacklisting” executive order.  As expected, the President signed legislation disapproving of the Executive Order pursuant to the Congressional Review Act.  He also issued an Executive Order officially revoking the initial authorizing Executive Order signed by President Obama. President Trump’s Order directs the Department of Labor and other executive agencies to “consider promptly rescinding any orders, rules, regulations, guidance, guidelines, or policies implementing or enforcing the revoked Executive Orders.”

With the underlying authorization for the regulations eliminated, this spells the end for the Executive Order as well as the DOL Guidance and the FAR provisions implementing the Blacklisting Rule.  The end result – federal contractors will not be required to report alleged labor violations to federal agencies as part of the bid process, are not required to implement procedures to comply with required paycheck transparency, and will not be prohibited from entering into mandatory arbitration agreements concerning employee Title VII claims.

 

Audit Letters Are In The Mail

As an update to last month’s report that OFCCP has put 800 establishments on notice of upcoming audits, we have learned that as of Friday, March 17, 2017, OFCCP has started sending out letters actually initiating audits.

Unlike the courtesy scheduling announcement letters (CSALs) which provide advance notice of an audit, the Scheduling Letters put in the mail by OFCCP of Friday initiate audits and starts the 30-day response time clock.  As a result, it is imperative that your establishments are on the look out for these letters from OFCCP and forward them to the proper people within your organization as soon as they are received.  Time is of the essence . . .

Update: Acosta Confirmation Hearing Pushed Back

The confirmation hearing for new Secretary of Labor nominee, Alexander Acosta, has been pushed back until March 22 to allow him to travel to Nashville with the President.  Its anticipated once the hearing moves forward, the Health, Education, Labor and Pensions Committee, will vote within on Acosta’s confirmation within the following week.  Stay tuned for new developments.

Confirmation Hearing Set for Secretary of Labor Nominee

The confirmation hearing for President Trump’s second Secretary of Labor nominee, Alex Acosta, has been set for March 15.

Acosta was nominated after President Trump’s initial nominee, Andrew Puzder withdrew from consideration following growing controversy.

While nothing prevents Acosta’s confirmation hearing from being postponed, as Puzder’s was several times before his eventual withdrawal, there does not seem to be a present reason for a continuation.

Confirmation of the Secretary of Labor will allow other appointments, such as the head of the OFCCP, to move forward.

Senate Votes to “Disapprove” Blacklisting Regulation

By a narrow margin of 49-48, the Senate has voted to “disapprove” President Obama’s much challenged Executive Order 13673: Fair Pay and Safe Workplaces, which required the mandatory reporting of labor violations for contractors going through the contract procurement process.  Relying on the power granted it by the Congressional Review Act, Congress has all be sealed the fate of the “blacklisting” Executive Order.  The next, and final step to “undo” the Executive Order, is sign off of the disapproval resolution by President Trump.  It is anticipated he will do so without much deliberation.

As reported previously, a Texas U.S. District Court in October 2016 enjoined implementation of the “labor law violation” reporting provision of the FAR Council’s final rule implementing the order, as well as the prohibition of mandatory arbitration agreements.  Nonetheless, the “paycheck transparency” provisions of the order took effect for new contracts on January 17, 2017, leaving many contractors in compliance limbo. 

Assuming the disapproval resolution is signed by President Trump, the long saga of this order, which President Obama signed in July 2014, will come to end:  the executive order, the FAR provisions and DOL’s Guidance document will be dead; the lawsuit challenging the order will be moot; and federal contractors will be free from the burdens and obligations imposed by the order, including the paycheck transparency obligations that went into effect earlier this year.

Stay tuned for what appears will be the next, and final, chapter to this story.  

 

New Pay Equity Advisor Blog Launched

As we continue to see issues of pay equity arise on a daily basis, Jackson Lewis is pleased to announce the launch of its Pay Equity Advisor blog.  The blog was created to provide updates and practical strategies to employers facing hot button issues surrounding compensation and pay equity as the call for pay transparency and action to close the pay gap make headlines and state and local fair pay initiatives continue to rise.  You can access the Jackson Lewis Pay Equity Advisor blog through our website or directly at www.payequityadvisor.com.

The Pay Equity Advisor blog is brought to you by our Affirmative Action Compliance and OFCCP Defense and Pay Equity practice groups. Joy Chin, Jackson Lewis Principal and Co-Chair of the Firm’s Pay Equity Resource Group, serves as blog editor. To subscribe to the Pay Equity Advisor blog and receive regular updates, click here and enter your email address.

OFCCP Revises Pay Transparency Nondiscrimination Provision

Pursuant to President Obama’s pay transparency executive order (Executive Order 13665), which amended Executive Order 11246, federal contractors must incorporate the OFCCP-prescribed Pay Transparency Nondiscrimination Provision (PTNP) in employee handbooks (or implement a stand-alone policy) and post it for applicants and employees.

 OFCCP recently revised the required provision to include a cite to the regulation (41 C.F.R. 60-1.35(c) at the conclusion of the notice. Contractors should work to update their notices as soon as reasonably practicable. 

Ensuring you have the proper policy implemented and posted is important in light of the recent round of CSALs issued by OFCCP as this will likely be an item the Agency will be checking compliance with during an audit.

Trump Administration Sending Mixed Signals about Support of LGBT of Rights

In addition to issues involving the environment, immigration, and national security, the Trump Administration has been in the headlines recently for its stance on matters impacting the LGBT community.

As we reported in a late-January, after close deliberation with daughter Ivanka, and son-in-law Jared Kushner, President Trump expressed support for LGBT rights and vowed to leave intact President Obama’s LGBT Executive Order protecting rights for individuals on the basis gender identity and sexual orientation. At the time, this move was seen by many as a sign that President Trump would generally support the rights of the LGBT community.

However, recent events have sent mixed messages on the subject.

This week, the Department of Education and the Department of Justice under President Trump rescinded the Obama Administration’s May 2016 “Dear Colleague Letter” directing schools to “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.”  That Letter offered guidance on a range of LGBT issues, including access to restrooms, locker rooms, and similar facilities, equal participation in educational programs and activities, and recordkeeping and privacy.

Additionally, it was reported earlier this week that OFCCP has filed an administrative law complaint alleging denial of access in connection with President Obama’s LGBT Executive Order.  To clarify, this complaint was filed by the previous administration under then-Solicitor Patricia Smith.  Regardless, the case is important as it is the first of its kind to involve enforcement of the LGBT Executive Order and is now in the hands of the recently appointed acting DOL Solicitor Nicholas Geale.

These two actions above are not, however, likely to be the last word on the topic. During the campaign, Trump 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.”  His support of the FADA would be contrary to the support he provided to President Obama’s executive order yet would be consistent with the actions of the Departments of Education and Justice this week.  Once again, we will have to stay tuned to see what happens next.

 

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