Archives: Case Law update

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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 … Continue Reading

First Lawsuit Challenging Fair Pay & Safe Workplaces Obligations Filed

As anticipated, the first lawsuit challenging the legality of the Fair Pay & Safe Workplaces executive order and final rules is now on the books. Filed by the Associated Builders and Contractors, a construction trade group, and the National Association of Security Companies, the complaint contains six counts which allege the Obama administration, the FAR Council and … Continue Reading

U.S. Supreme Court to Again Review Higher Education Affirmative Action Case

In a week full of front-page news, the United States Supreme Court has agreed to again review the appropriateness of the University of Texas at Austin’s race-based admissions process in the case of Fisher v. University of Texas at Austin. The Supreme Court first reviewed the school’s consideration of race as a component of its admission process … Continue Reading

EEOC Issues Updated Pregnancy Discrimination Guidance

Responding to the recent United States Supreme Court decision in Young v. UPS, the U.S. Equal Employment Opportunity Commission has issued revised Enforcement Guidance on Pregnancy Discrimination and Related Issues. In its press release announcing the updated guidance, the Agency explained the update to its previously released guidance were limited in scope and tailored to address the recent … Continue Reading

OFCCP’s Section 503 Regulations Withstand Challenge

The United States Supreme Court has declined to accept Associated Builders & Contractor’s request to review the legality of OFCCP’s recently enacted regulations for individuals with disability.  This rejection signals the end of ABC’s year and a half long challenge of the Agency’s Section 503 regulations. While this may be the final chapter for ABC’s challenge, the Agency and … Continue Reading

Decision Issued on Obligation to Post Executive Order 13496 Notice of Labor Rights

In an update to our post more than a year ago about the National Association of Manufactures’ legal challenge to the posting requirements under Executive Order 13496, a federal district court in Washington, D.C. has rejected NAM’s constitutional challenge to President Barack Obama’s 2010 Executive Order requiring certain federal contractors to post a “Notification of Employee Rights under Federal Labor Laws.” … Continue Reading

New Disability Regulations Withstand Continued Challenge

As a follow up to a story from earlier this year, the D.C. Circuit court has rejected the Associated Builders and Contractors, Inc. (ABCs) challenge of the requirements under the revised regulations implementing Section 503 of the Rehabilitation Act. In November 2013, ABC filed suit alleging OFCCP issued its recently revised regulations pertaining to individuals … Continue Reading

Court Once Again Upholds University of Texas Consideration of Race as Admissions Factor

As reported more than a year ago, the U.S. Supreme Court remanded the Fisher v. University of Texas case back to the Court of Appeals for stricter scrutiny of the University’s consideration of race in its undergraduate admissions policy.  The case centers on Ms. Fisher’s claim she was denied admission to the University based on … Continue Reading

Court Affirms OFCCP’s Authority in Next Chapter of Bank of America Litigation

In a long-running 4th Amendment case between OFCCP and Bank of America, a U.S. District Court has affirmed earlier rulings that:  (1) Bank of America (BoA) waived its 4th Amendment objection to an OFCCP Desk Audit by providing information in response to a scheduling letter; and (2) OFCCP had probable cause obtained during the Desk … Continue Reading

House Speaker John Boehner to Sue President Obama Over Recent Executive Orders

Earlier today House Speaker John Boehner announced his intent to file a lawsuit challenging the constitutionality of the President’s recent Executive Order actions.  As we have been discussing, President Obama has recently issued  numerous Executive Orders affecting the employment practices of Federal Contractors. The details of the Speaker’s proposed lawsuit are not yet available but … Continue Reading

U.S. Supreme Court Upholds Voter-Approved Ban on Affirmative Action in Public University Admissions

In 2006, Michigan voters amended their constitution to prohibit state and local governmental entities from considering race, or granting race-based preferences, in a wide range of actions and decisions, including admissions to state universities, as well as “the operation of public employment, public education, or public contracting.”  Today, the U.S. Supreme Court ruled the ban … Continue Reading

OFCCP v. Healthcare Industry: The Battle Isn’t Over Yet

The saga of OFCCP v. Florida Hospital of Orlando is synonymous with OFCCP’s ongoing battle to establish jurisdiction over healthcare providers.  In late-2008, OFCCP brought an enforcement action after the Hospital objected to OFCCP’s jurisdiction, claiming it was not a covered “subcontractor.”  An administrative law judge in October 2012 found the Hospital to be a … Continue Reading

Challenge to New Disability Regulations Fails on Cusp of Effective Date

As previously reported, a number of federal contractor associations have raised questions and concerns regarding the new veteran and disabled regulations.  In November 2013, Associated Builders and Contractors, Inc. (“ABC”) challenged the validity of the disability regulations in federal court and today the United States District Court for the District of Columbia upheld the regulations, … Continue Reading

The Battle Between OFCCP and the Healthcare Industry Continues in Washington

Today, yet another chapter of the attenuated battle between OFCCP and the healthcare industry unfolded on Capitol Hill.  During a hearing on H.R. 3633, known as the Protecting Health Care Providers from Increased Administrative Burdens Act, Representative Tim Walberg, the bill’s sponsor, reported that Secretary of Labor Perez provided him with a letter detailing OFCCP’s promise to put a 5 year moritorium on … Continue Reading

Requirement to Post Union Rights Still in Effect for Federal Contractors

Earlier this month the NLRB  decided not to appeal two appellate court decisions invalidating the NLRB’s 2011 adoption of a rule requiring private sector employers to post notices advising employees of their rights under the National Labor Relations Act.  The decision to allow this deadline to pass rendered the posting obligations “dead in the water” for … Continue Reading

Requirement to Post Union Rights Pursuant to Executive Order 13496 Challenged

In a recent court filing, the National Association of Manufacturers and the Virginia Manufacturers Association have challenged the legality of OFCCP’s requirement that federal contractors post notices informing employees of their rights under the National Labor Relations Act in connection with Executive Order 13496. In addition to other arguments, the complaint contends that while OFCCP has … Continue Reading

OFCCP Hiring Discrimination Settlement Focused on the Use of a Pre-Employment Test

The OFCCP announced it has settled its allegations with M.C. Dean Inc. that the company engaged in hiring discrimination against minorities due to the use of an allegedly invalid pre-employment test.  The Company settled for $875,000 that will be paid to nearly 400 minority applicants and must make 39 job offers as part of the settlement. … Continue Reading

System Check: Adverse Impact Analyses Should Not Be Limited to Minorities and Females

OFCCP recently entered into two hiring settlements where the Agency alleged systemic discrimination against male applicants. These settlements reminds us OFCCP is not just focused on statistical trends against minorities and females, but that the Agency is also running adverse impact analyses against whites and males and will “go where the numbers take them.” In … Continue Reading

Complaint Alleges Aggressive, Reaching EEOC Investigations

We’ve previously written that the EEOC appears to be converting allegations of individual claims into nationwide, systemic discrimination investigations and we have yet another example to share with you. According to a recently filed complaint, EEOC is alleged to have engaged in “fishing expeditions” searching for potential class members and complaints of discrimination by directly emailing employees of a company engaged in a complaint investigation with … Continue Reading

“Not So Fast” … Maryland District Court Dismisses EEOC Criminal Background Check Lawsuit

In an opinion released last Friday, the District Court of Maryland granted summary judgment dismissing EEOC’s disparate impact criminal background/credit background lawsuit against the face-to-face marketing services company, Freeman.  This is the second high-profile criminal background back ground case in which EEOC has suffered a significant setback since the April 2012 issuance of the Agency’s … Continue Reading

Court Holds Adverse Impact Against “All Others” Doesn’t Count

As we have written previously, OFCCP continues to focus its investigations on adverse impact in hiring.  This week, one employer received good news in response to its challenge of an Agency finding. On Monday, a Department of Labor Administrative Law Judge issued a ruling that limited the OFCCP’s approach to investigating and establishing racial discrimination among subminorities.  In … Continue Reading

Its Not Over Yet – Florida Hospital Case Remanded for Further Assessment of OFCCP’s Jurisdiction

As we reported last week, an en banc ARB panel, granting OFCCP’s Motion for Reconsideration, ruled OFCCP could assert jurisdiction over Florida Hospital based on the first prong of the defintion of subcontract in the regulations.  The Court, however, has acknowledged that OFCCP may nevertheless be barred from asserting jurisdiction over Florida Hospital if the payments the hospital receives pursuant … Continue Reading

En Banc ARB Panel Holds Florida Hospital is Still Subject to OFCCP Jurisdiction Despite Passage of NDAA

In an opinion released today, the en banc ARB panel tasked with reviewing last years’s ARB plurality decision  – which held Florida Hospital was not subject to OFCCP jursidiction after passage of the NDAA (National Defense Authorization Act) – has found Florida Hospital is still subject to OFCCP jursidiction based on application of the first prong of the … Continue Reading