OFCCP Issues Proposed Rule for Federal Contractors Prohibiting Policies/Practices Under Which Employees May be Disciplined For Discussing Pay

By Edwin S. Hopson

On September 15, 2014, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) proposed a new rule that would prohibit federal contractors from discharging or otherwise disciplining employees who discuss, disclose or inquire about their pay or the pay of another employee or applicant for employment.

“Workers cannot solve a problem unless they are able to identify it. And they cannot identify it if they aren’t free to talk about it without fear of reprisal,” said OFCCP Director Patricia A. Shiu in her press release. “Pay transparency isn’t just good for workers. It’s good for business. Fairness and openness are great qualities for a company’s brand.”

Back in April 2014, the President signed Executive Order 13665, which instructed Secretary of Labor Perez issue a proposed rule within 160 days that required “pay transparency” by federal contractors. The rule proposed would amend the Equal Opportunity clauses in Executive Order 11246. The new rule adds definitions for “compensation,” “compensation information,” and “essential job functions,” terms which appear in the revised clauses of the Executive Order. The proposal also establishes two types of defenses that contractors can use against allegations of discrimination under EO 13665.

The proposed rule will be published in the September 17 issue of the Federal Register and will be open for public comment for 90 days. See  http://www.dol.gov/ofccp/PayTransparencyNPRM.

President Signs Executive Order Prohibiting Discrimination Based on Sexual Orientation or Gender Identity

By Edwin S. Hopson

On July 21, 2014, President Obama signed an Executive Order prohibiting federal government contractors and subcontractors from discriminating in employment decisions on the basis of sexual orientation or gender identity.

The Executive Order is an amendment to Executive Order 11246, issued by President Lyndon Johnson on September 24, 1965, and enforced by the Labor Department’s Office of Federal Contractor Compliance Programs.

Commenting on his action, “…the President also pointed out that workplace equality is simply good business. Noting that most of the Fortune 500 companies already have nondiscrimination policies on their books, he explained that these policies help companies attract and retain the best talent.”

For more information about Executive Order 11246, see:

http://www.dol.gov/ofccp/regs/compliance/ca_11246.htm

President Obama Details Possible Cuts to Federal Spending under Budget Control Act of 2011

By Edwin S. Hopson

On September 14, 2012, the President’s Office of Management and Budget released a report on what the estimated impact of sequestration pursuant to Sequestration Transparency Act, as mandated by the Budget Control Act of 2011, would be on January 2, 2013, should the Congress not agree upon a budget or otherwise intervene prior to that time.  According to the report, it is estimated that, among other things, there would be a 9.4% cut in non-exempt defense discretionary spending and a 8.2% decrease in non-defense, non-exempt discretionary funding.  The nearly 400 page report details plans for cuts federal government spending amounting to some $1.2 trillion dollars.

In Appendix A to the report, the following agency cuts in selected labor/employment sectors are as follows:

U.S. Department of Labor Wage and Hour Division: $19 million

Occupational Safety and Health Administration: $46 million

Occupational Safety and Health Review Commission: $1 million

Office of Federal Contract Compliance Programs: $9 million

Equal Employment Opportunity Commission: $30 million

National Labor Relations Board: $23 million

These cuts, if implemented, would undoubtedly have significant impacts on these agencies.  It is assumed that each agency is preparing or has prepared contingency plans to deal with any such reductions in funding.

OFCCP Announces Proposed Revisions to Section 503 Regs Regarding Persons with a Disability

By Edwin S. Hopson

On December 8, 2011, the U.S. Department of Labor announced that the Office of Federal Contract Compliance Programs (OFCCP) is proposing a new rule that would require federal contractors and subcontractors to set a hiring goal of having 7% of their workforce be people with disabilities, among other requirements. OFCCP is inviting public comment on its proposal.

OFCCP’s proposed rule would substantially increase the affirmative action requirements contained in Section 503 of the Rehabilitation Act of 1973 which obligates federal contractors and subcontractors to ensure equal employment opportunities for qualified workers with disabilities.  For many years, Section 503 has only required that federal contractors make a “good faith effort” to recruit and hire persons with a disability.

The proposed regulations also make significant, substantive changes to a contractor’s responsibilities and the process through which applicants are invited to voluntarily self-identify as individuals with disabilities protected by section 503 during the hiring process.  It also adds a new requirement that contractors must annually survey employees in order to provide an opportunity for each employee who is, or subsequently becomes, an individual with a disability to voluntarily and anonymously self-identify. 

With these changes, the contractor’s affirmative action programs would be required to contain the following elements: (1) An equal employment opportunity policy statement; (2) a comprehensive annual review of personnel processes; (3) a review of physical and mental job qualifications; (4) a statement that the contractor is committed to making reasonable accommodations for persons with physical and mental disabilities; (5) a statement that the contractor is committed to ensuring a harassment free workplace for individuals with disabilities; (6) external dissemination of the contractor’s affirmative action policy, as well as outreach and recruitment efforts; (7) internal dissemination of the contractor’s affirmative action policy to all of its employees; (8) development and maintenance of an audit and reporting system designed to evaluate affirmative action programs; and (9) training regarding the implementation of the affirmative action program for all personnel involved in employment related activities, such as the conduct of recruitment, screening, selection, and discipline of employees.

The proposed revisions can be found at: 

 http://www.regulations.gov/#!docketDetail;dct=FR%252BPR%252BN%252BO%252BSR;rpp=10;po=0;D=OFCCP-2010-0001

U.S. Department of Labor’s New Website Features

By Mitzi D. Wyrick

What does your Department of Labor (“DOL”) company profile look like? Did you know that the DOL has recently made its online enforcement database searchable and available to the public? In an effort at greater transparency, the DOL has posted its compliance and enforcement audit results online. Results are searchable in a variety of ways, including by zip code, by company, by state, or by industry sector. This means a company’s wage and hour, OSHA, OFCCP, and EBSA audit results are now available to attorneys, unions, and even other agencies, such as the EEOC. The database is available at: http://ogesdw.dol.gov/index.php

OFCCP Reports to Congress On Its Activities

By Edwin S. Hopson

On September 29, 2010, Deputy Director Les Jin of the Office of Federal Contract Compliance Programs of the U.S. Department of Labor (OFCCP) testified before the U.S. House of Representatives’ Subcommittee on Economic Opportunity of the Committee on Veterans’ Affairs regarding OFCCP’s activities over the last year.  He discussed OFCCP’s enforcement of (a) Executive Order 11246, which pertains to the civil rights of employees of federal contractors and subcontractors, (b) the .Vietnam Era Veterans’ Readjustment Assistance Act of1974 (VEVRAA), which prohibits federal contractors and subcontractors from discriminating against specified categories of veterans, including disabled veterans, and which requires that federal contractors take affirmative action to employ and advance in employment such veterans, and (c) Section 503 of the Rehabilitation Act of 1973 (Section 503) that prohibits discrimination against individuals with disabilities and requires that federal contractors take affirmative action in the employment of such individuals.  OFCCP, according to Jin, oversees more than 200,000 establishments with contracts amounting to approximately $700 billion.

Secretary of Labor Announces Her New “Vision” For American Workers

By Edwin S. Hopson

On December 7, 2009, U.S. Secretary of Labor Hilda L. Solis laid out her “vision” in the Fall 2009 Regulatory Plan for the Labor Department’s mission of ensuring “there are good jobs for everyone.” [Emphasis in the original].  Secretary Solis described a “series of 12 specific strategic outcomes” which she hopes will result in achieving her vision.  According to the Labor Department’s website, they are: