Speculation has been swirling around the release date for OFCCP’s revised Veterans and Individuals with Disabilities regulations.  While the regulations will not be finished in July as OFCCP had intimated, the Agency did take the next crucial step on July 30 and 31 by submitting them for Office of Management and Budget (“OMB”) approval.  As yet, we don’t know what the final regulations will look like but by submitting them to OMB, OFCCP has taken the next step in getting the regulations finalized and could conceivably still meet Director Shiu’s goal of publishing them by the end of the year.  OMB has 60 days to either accept or reject the regulations, which could allow OFCCP to publish them prior to the September 30 close of the 2013 fiscal year.  Unless OMB determines additional comment is needed, we won’t know what changes (if any) OFCCP has made to the proposed regulations until they are published as final in the Federal Register.  As we find ourselves saying frequently this Summer . . . stay tuned for updates.

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 to TRICARE constitute “federal financial assistance.” As a result the court remanded the case back to the ALJ for further assessment.   As a result, despite the en banc ruling issued last week, this “ain’t over yet.”

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 definition of a subcontract found in OFCCP’s regulations.

We are in the process of reviewing the decision and will provide more insight on the implications of the decision in the coming days . . . stay tuned.

On his first day in office after being sworn in as the new DOL Secretary, Thomas Perez wasted no time blogging about his aspirations for creating “more opportunity for more people.”  The best way to promote opportunity, he says, “is through collaboration, consensus-building and pragmatic problem-solving.”  It will be interesting to see how Secretary Perez balances the interests of workers and the business community during what can only be described as a pivotal time.  Acknowledging the tough road ahead, Secretary Perez shares insight into his previous methods, noting he will continue to “approach tough challenges by making room for as many people as possible around the table in search of common ground. . . . to work together on policy solutions that are both pro-business and pro-worker.”    How successful he is at attaining this balance remains to be seen – but given the number of items on his plate as the incoming Secretary, it looks as though he will have ample opportunity to work on his approach.

As we first reported last summer, OFCCP has been contemplating publishing the advance notification list of employer’s and their facilities selected for upcoming compliance reviews via the web.  It came to our attention yesterday that these lists were available on OFCCP’s website – without any prior notification from the Agency.   However, as it turns out, the availability of the information was the result of an error and not the Agency’s rollout of the controversial practice of making this information available to the public at large.

Jackson Lewis has learned in speaking with OFCCP’s National Office that while they are still contemplating and reviewing the practice of posting the advance notices online, the decision to do so has not been reached and yesterday’s posting was a “technical snafu” resulting in the appearance of a “test page” developed when OFCCP first began considering this notification option.  We were reassured that OFCCP will notify the contractor community if and when it decides to move forward with the electronic posting practice as a final determination has not yet been made.

We’ll be sure to let you know as soon as we have any additional information to share.

Earlier today, the U.S. Senate voted to confirm Thomas Perez as Secretary of the Department of Labor, filling the vacancy left by Hilda Solis’ resignation earlier this year.  As we foreshadowed, Perez’s nomination was the subject of pointed scrutiny and his confirmation today was not without controversy as the party-line vote to confirm Perez was the result of recent negotiations to end filibusters of executive-branch nominees.

Now that the Secretary of Labor position has been filled, OFCCP may move forward more quickly with its proposed veteran and disabled individual regulations.  Speculation is the Agency was waiting until a new Secretary was confirmed to get input before sending the regulations on to OMB for approval.  Stay tuned for more as there is no guarantee this is the case, but filling this position was certainly one of the hurdles OFCCP faced in getting its regulations finalized.

In the recently released Office of Information and Regulatory Affairs Spring 2013 “Agency Rule List,” the long awaited revisions to the OFCCP’s Veterans and Individuals with Disabilities regulations are listed with a July 2013 release date.  If this was truly the case, the Office of Budget and Management’s (OMB) would have received (and reported on its website) that the finalized rules had been submitted for the required OMB approval.  They, however, have not.  As such, it is likely that the release of these finalized regulations is not in fact imminent.

As we previously reported, Director Shiu is hopeful the regulations will be publised by the end of the year, but the vacancy at the head of the OMB and other policitcal considerations may be responsible for delay of any finalized rules.

On June 27, Patricia Shiu,  OFCCP Director, gave the key-note speech at the National Employment Lawyers Association’s 2013 Annual Convention.  In a portion of her remarks, Director Shiu referred to two U.S. Supreme Court decisions from this term – Vance v. Ball, which narrowly defined “supervisor” for Title VII purposes, and University of Texas Southwest Medic al Center v. Nassar, which held Title VII retaliation claims are subject to a more demanding standard of proof – as “pretty big setbacks in defending employee rights” that left advocates with the choice to either “curl up” and surrender or “join together and start planning the next chapter in the advancement of worker’s rights”.

Interestingly, but not all that surprisingly, Director Shiu went on to explain OFCCP, EEOC, and the Department of Justice are aligned with plaintiffs and employee advocates and believe that the role of these agencies is not to “simply enforce” but to actively “bend the arch of the law” in the right direction.

Director Shiu’s remarks reinforce recent actions by OFCCP to enhance and strengthen the Agency’s enforcement abilities and are certainly in line with its recent aggressive stance on pay discrimination, including rescinding the 2006 compensation guidelines and issuing Directive 307 with it’s broad and flexible analytical approach.

In preparation for the 2013 EEO-1 reporting period, set to open in July, the U.S. Equal Employment Opportunity Commission (EEOC) has reset the passwords for all users of the online system “for security and confidentiality purposes.”  Reporting companies will receive “notification letters” that will contain their new password.

Users who need to access the system prior to receiving the 2013 notification letter may obtain their password by sending an email to e1.lostloginpassword@eeoc.gov.  The email request must come from the company’s EEO-1 contact or certifying official and must contain the company’s name and log-in identification.  If the certifying official no longer is with the company, the request also should include the name of the former certifying official and a request to transfer access to the new contact.

 

WHO MUST FILE EEO-1 REPORTS

The Employer Information Report EEO-1, known as the EEO-1 Report, must be filed annually with the EEOC’s EEO-1 Joint Reporting Committee.  The filing deadline for the 2013 EEO-1 Report is September 30, 2013.

Employers subject to Title VII of the Civil Rights Act with at least 100 employees and federal contractors and subcontractors with at least 50 employees and a federal contract or subcontract of $50,000 or more must file EEO-1 Reports.  The EEO-1 Report requires submission of workforce demographics (race, ethnicity and gender of all employees) by job category.

Single establishment employers file a single EEO-1 Report.  However, employers with multiple establishments generally must file several types of reports:  (1) a headquarters report, and (2) separate reports for each establishment of 50 or more employees, and (3) either separate reports for each establishment of less than 50 employees or a list, including name, address, total employment and major activity, of each establishment of less than 50 employees, and (4) a consolidated report of all employees in the entire organization.  Employers must use employment data from any one payroll period in July, August or September of the current reporting year.

On June 24th the Supreme Court issued its opinion in Fisher v. University of Texas at Austin, et al. – a highly anticipated decision and the court’s most prominent opportunity to address affirmative action in the last decade.  Fisher involves the use of race in the higher education admissions context and experts speculated the Court’s decision may shed light on affirmative action principles outside the admissions context.

In  its decision, the Court made clear that racial diversity does not permit quotas or predetermined percentages of minority results.  Unfortunately for those hoping for more guidance on the scope of permissible affirmative action processes, the Court’s decision disappoints.   In reversing the Fifth Circuit’s ruling to affirm the district court’s grant of summary judgment, the Supreme Court held courts must “close[ly] analy[ze] the evidence of how the process works in practice” to determine whether the approach is narrowly tailored to achieve student body diversity.”  The court returned the case to the lower court to apply the proper standard.

Should Fisher find its way back to the High Court, the Justices will have another opportunity to address the topic and provide more definitive guidance.  But if this decision is any indication, the Court may once again decide to punt on this issue instead of addressing it head on.