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.

 

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.

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