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 Supreme Court decision which dealt with the issue of a woman’s ability to establish pregnancy discrimination based on an employer’s accommodation practices. Early this year the OFCCP relied on EEOC’s initial pregnancy discrimination guidance for  a portion of the Agency’s proposed Sex Discrimination Rules.  With the Supreme Court decision in Young coming days before the close of the public comment period for the proposed rules, OFCCP extended the comment period to allow the public time to comment on the implications of the court ruling on the Agency’s proposal.  How OFCCP will address and/or incorporate the court ruling and EEOC’s revised guidance in its final rules remains to be seen.  The public comment period for the proposed Sex Discrimination Rules closed in April 2015 and the final rules are anticipated late this year.

As part of our continued efforts to analyze and disseminate information about the recently published proposed guidance implementing Executive Order 13673, JL will be hosting a complimentary webinar Tuesday, June 30, 2015 from 2:00 – 3:00 Eastern, entitled “Understanding the Fair Pay and Safe Workplaces (“Blacklisting”) Executive Order – Ten Steps Contractors Should Take Now.”

Join Mickey Silberman, Leslie Stout-Tabackman and Garen Dodge as they discuss the details of the U.S. Department of Labor’s proposed guidance and Federal Acquisition Regulatory Council’s proposed regulations and identify actions contractors should consider taking now in preparation for compliance with the requirements.

For information about the webinar and to register, click here.  Hope you can join us.

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 employers are still navigating through the initial “transition” year of both the Section 503 and VEVRAA regulations.  Though the regulations went into effect March 24, 2014, contractors have until they next regularly update their AAP to implement compliance with the data collection and some of the other obligations of the regulations.  This “transition” period is where contractors are working towards full implementation and have started collecting, but may not have a full year’s worth of data to report in their AAP.  OFCCP recently offered sample VEVRAA and Section 503 Transition Year AAPs to give contractors an idea of what a compliant transition year AAP might look like.

How the Agency will enforce these regulations going forward is yet to be seen but OFCCP but we will be sure to keep you updated on any enforcement trends or insights as we learn of them.

 

 

 

With the official start of summer roughly a week away, it’s not too early to start planning for the upcoming ILG National Conference.  This year, the 33rd Annual Conference will be held in New York City from July 28-31, 2015 at the Marriott Marquis Times Square.

With the theme “Onward and Upward: Building the Future of Compliance”, this year’s conference will focus on “lessons from our past, strategies for our future” and promises an information packed agenda.  The scheduled sessions and panel discussions will be led by leading experts in the field, including Jackson Lewis attorneys Mickey Silberman, Joy Chin, Eric Felsberg, Jennifer Seda, and Michelle Duncan.

With all that is going on in the world of affirmative action and the regulatory agenda items currently on deck for OFCCP, this year’s conference will be full of practical insights, front-line strategies and invaluable information about contractor compliance obligations and OFCCP enforcement trends.  The conference also offers the ultimate opportunity to network with hundreds of employer representatives who have the same goal of staying up to speed on the latest affirmative action and EEO developments affecting federal contractors.

For more information about the conference and to register, visit the 2015 ILG National Conference website.  Hope to see you in the Big Apple.

After continuing uncertainty about how employers should track Recently Separated Veterans, we have learned OFCCP and VETS agreed this week that employers’ post-offer self-identification forms need only solicit whether the new employee is or is not a Protected Veteran.

The uncertainty around collecting more specific information about Recently Separated Veterans arose when OFCCP issued an FAQ earlier this year stating that, in light of the new reporting requirements associated with the VETS-4212 form, employers were not required to solicit the specific type of Protected Veteran post-offer. Rather, employers could simply ask individuals to fall into any of the Protected Veteran categories.

Following this, many employers expressed concerns about how to properly track Recently Separated Veterans, defined as “discharged or released from active duty within the last three years” for VETS-4212 Reporting. Because the Recently Separated Veteran category is tied to a defined period of time following discharge, many employers asked for date of separation and if the employee belonged to protected veteran categories other than Recently Separated to determine when, and if, the employee would need to be removed from the list of protected veterans at some point in the future.

This week OFCCP and VETS confirmed – employers do not need to (1) ask these additional questions or (2) track when and how to move employees from Recently Separated Veterans status in their systems. Like the veteran pre-offer (applicant) form, the post-offer self-identification form need only provide “yes/no/decline to answer” options as to whether the new employee is a Protected Veteran.

From an administrative standpoint, this allows employers to streamline their veteran self-identification forms, utilizing the same form both pre- and post-offer (just like with race/ethnicity, gender and disability) and eliminates the need to track whether an employee no longer qualifies as protected due to discharge date. This will be much easier to administer from a systems perspective since employers will no longer need to manually track and make changes in HRIS systems to protected veteran status on an individual employee level.

OFCCP and VETS have stated that they will not issue any formal announcements or additional FAQs on this issue as they feel the OFCCP’s previously-provided FAQ is consistent with, and sufficiently addresses this decision.

While we all hope that our OFCCP compliance reviews will end with a Notice of Closure with no violations, many employers are faced with a Notice of Violation citing technical or discrimination-based violations. In these instances, OFCCP will demand the contractor enter into a Conciliation Agreement to remedy the violations. But what happens when negotiations breakdown and conciliation fails?

  • What should you expect?
  • Who should be involved?
  • What steps should you take?

Join Jackson Lewis attorneys Michelle Duncan, former Senior Trial Attorney for OFCCP, and Stacey Bastone, former Assistant District Attorney in Manhattan, on Wednesday, June 24th 2:00 – 3:30 EST / 1:00 – 2:30 CST / 11:00 – 12:30 PST for a discussion of what happens when conciliation fails and a case moves toward enforcement proceedings.

Click here to register for this complimentary webinar.

As we previously reported, the U.S. Department of Labor has published proposed guidance (“DOL Guidance”) and the Federal Acquisition Regulatory (“FAR”) Council has published proposed regulations (“FAR Proposed Rule”) implementing President Obama’s “Fair Pay and Safe Workplaces” Executive Order (E.O. 13673), often called the “Blacklisting” or “Bad Actors” executive order.  The Order requires government contractors and subcontractors to report regularly on workplace law violations found by administrative agencies, the courts, and arbitrators.

We’ve summarized the proposals and will continue to analyze each document and provide additional insights in the coming weeks.  Stay tuned.

The Department of Labor has released proposed guidance to assist with implementation of Executive Order 13673 – Fair Pay and Safe Workplaces.  The proposed guidance is expected to be published in the Federal Register tomorrow which will start a 60-day public comment period.

The Federal Acquisition Regulatory Council has likewise released proposed regulations implementing the Executive Order, which integrate the Department of Labor’s proposed guidance.  The proposed regulations will also be open to public comment for 60 days following publication tomorrow in the Federal Register.

The proposed guidance weighs in at a hefty 106 pages and the proposed Rule is approximately 130 pages.  We are working our way through them both and will provide details and insights soon.

With the release of the new veterans and individuals with disabilities regulations, as well as roll-out of the new scheduling letter and LGBT regulations, OFCCP accomplished a lot over the last year and it’s not done yet. The latter-half of 2015 and into 2016 looks to bring more regulatory changes. The following items remain on OFCCP’s Regulatory Agenda, including its latest projections for issuance of proposed or final regulations:

  • Breaking News: Fair Pay and Safe Workplaces: The regulatory agenda did not provide an update with respect to any proposed regulations implementing Executive Order 13673. However, we have learned that proposed regulations implementing the executive order is expected to be released this week.  We will provide an update as soon as they are available to the public.
  • Equal Pay Report: OFCCP’s latest regulatory agenda projects November 2015 for publication of these final rules.  More about the proposed report can be found here.
  • Sex Discrimination Proposed Rules: In January, OFCCP proposed binding regulations to replace the decades-old Sex Discrimination Guidelines. The comment period closed in April 2015 and OFCCP is projecting December 2015 for final rules.
  • Pay Transparency: OFCCP says August 2015 for final rules implementing employer obligations for more transparency around employee pay.  In addition to prohibiting discrimination/retaliation against applicants and employees who discuss pay, the proposed rules require:
    • Inclusion in employee handbooks of an anti-discrimination policy to be provided by OFCCP; and
    • Physical or electronic posting of the policy for applicants and employees.
  • Construction Contractor Affirmative Action Requirements: OFCCP has for years been preparing updated regulations governing affirmative action for federal construction contractors. OFCCP’s latest projection is to release the proposed rules or comment in November 2015.

As we learn of updates we’ll pass them along so check in often and stay up-to-date.