The OFCCP Digest Local JobNetwork The OFCCP Digest Brian Bulger, Esq. and Emily Miller, Esq. Ahmed Younies Judy Young and Kathleen Lee Terri Swain Soul Cherradi
NLRB Joint Employer Test Expanded – Affects Staffing Models At Many Companies
by Brian Bulger, Esq. and Emily Miller, Esq.

With the rise of contingent workforces over the last two decades, many employers have enjoyed the flexibility afforded by staffing companies which provide employees as needed, coupled with a reduction in HR compliance requirements afforded by those companies. A side benefit was the diminution of labor organizing, as NLRB policies effectively insulated franchisors, contractors and companies with staffed employees from potential organizing because the primary company was held not to be a joint employer with the staffing company or other party. However, in August of this year, the National Labor Relations Board snatched away this protection in Browning-Ferris Industries of California, Inc., effectively announcing open season on thousands of previously protected employers...more

Brian Bulger, Esq. For more than 20 years, Brian Bulger has advised and represented employers on all aspects of the employment relationship, including individual and class discrimination...more

Emily Miller, Esq. Emily Miller concentrates her practice in the representation of management in labor and employment matters. Emily represents employers in all...more

Contractors: Remember to Review and Validate Your Pre-Employment Testing Practices!
by Ahmed Younies

By now you may have heard that Target recently agreed to pay $2.8 million to settle a Commissioner’s charge of discrimination by the EEOC originating from its Minneapolis Area Office and arising out of Target's pre-employment testing practices. According to the EEOC, three of Target’s tests excluded a disproportionate number of otherwise qualified candidates based on race and sex and were...more

Ahmed Younies Ahmed Younies has built human resources infrastructures for small-size companies as well as for mid-size to Fortune 500 companies. He has worked for the Office of Federal Contract Compliance Programs (OFCCP), enforcing compliance as a district director. He regularly delivers...more

Tips for Meeting the Numerical Targets of Section 503 and VEVRAA
by Judy Young and Kathleen Lee

March 24, 2014 is an important milestone for federal contractors. This is the date when new regulations pertaining to the employment of persons with disabilities (Section 503 of the Rehabilitation Act) and veterans (VEVRAA – the Vietnam Era Veterans’ Readjustment Assistance Act) went into effect. Among major compliance obligations outlined in these regulations are two overlapping ones that we address in this article: numerical targets – a 7% utilization goal for Section 503 and an annually adjusted hiring benchmark for veterans (7.2% for 2015) – and self-identification of disability and veteran status. Contractors are permitted to “double-dip” by counting veterans with disabilities for both the 503 utilization goal and for the VEVRAA benchmark should such applicants voluntarily...more

Judy Young Judy Young is the Assistant Director of Training and Development at Cornell University’s Industrial and Labor Relations (ILR) School and the Employment and Disability...more

Kathleen Lee Kathleen Lee is the Business Outreach Specialist at Cornell University’s Industrial and Labor Relations (ILR) School and the Employment and Disability Institute (EDI)...more

What Does It Really Mean to be an Affirmative Action Employer?
by Terri Swain

It never fails in our office. The frantic phone call because a Department of Labor Office of Federal Contract Compliance Programs (OFCCP) audit letter shows up on a desk, two weeks after sitting on the President’s desk, with the yellow sticky note “please handle.” Before fear and panic set in, here are some pointers for keeping ahead of the scary audit letter...more

Terri Swain Terri Swain brings a well-rounded perspective to her role as a human resource consultant, with experience as a human resources generalist as well as an equal employment opportunity/affirmative action specialist. She has consulted for both large and small companies, as well as...more

Is Disparate Impact Available In Sex-Based Pay Discrimination? (Part 2)
by Soul Cherradi

In a previously published article, I answered negatively the question of whether disparate impact theory of liability is available as a matter of law for a plaintiff or an enforcement agency to make a case of sex-based discrimination in compensation under the Equal Pay Act of 1963 (EPA) and/or under Title VII of the Civil Rights Act of 1964. I reached this conclusion after reviewing two important...more

Soul Cherradi Soul Cherradi, HR Compliance Manager at BP, has experience defending a large number of OFCCP audits and EEOC charges. Soul has 20 years of experience on the corporate side where he held roles in Compliance, HR, Employee Relations, Labor Relations, Law, Compensation...more

Jurisdictional Thresholds
OFCCP developed a “Jurisdictional Thresholds” infographic to help contractors determine when OFCCP’s Executive Order 11246, Section 503 of the Rehabilitation Act (Section 503), and the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA) are applicable. The threshold for Section 503 changed from $10,000 to $15,000 due to an inflationary adjustment statute that authorizes the Federal Acquisition Regulatory Council to review and adjust acquisition-related threshold amounts where necessary.

Minimum Wage Increases
The Department of Labor’s Wage and Hour Division issued a notice that the minimum wage rate for workers performing work on or in connection with federal contracts will be $10.15 effective January 1, 2016.

Pay Transparency – Final Rule
OFCCP published its final rule on implementing Executive Order 13665 also known as the “Pay Transparency” Executive Order. Under the rule, federal contractors and subcontractors may not fire or discriminate against employees for discussing, disclosing, or inquiring about their own pay or that of their co-workers. The rule also protects pay discussions by job applicants. The rule is effective for contracts or subcontracts of more than $10,000 and entered into or modified after January 11, 2016.

EEO-1 Deadline Extended
The U.S. Equal Employment Opportunity Commission (EEOC) extended its deadline for all EEO-1 reports from September 30, 2015 to October 30, 2015. Important changes to be aware of when filing:
  • Companies are able to obtain and reset their passwords
  • Company locations with the same address and North American Industrial Classification System (NAICS) code must consolidate locations into one record
  • The requirement to provide the employer identification number (EIN) for each establishment location will be carefully monitored
For questions about filing, please contact the EEOC at 877-392-4647.

Paid Sick Leave
President Obama signed an Executive Order to establish paid sick leave for federal contractors. Employees of federal contractors can earn up to seven days or more of paid sick leave each year, including paid leave for family care. The regulations will be issued by September 30, 2016, and the Executive Order will go into effect on
January 1, 2017.

On September 24, 1965, President Lyndon Johnson signed Executive Order (EO) 11246, a historic step towards equal employment opportunity. At the same time, EO 11246 granted oversight of federal contract compliance to the Secretary of Labor and created the department’s first Office of Federal Contract Compliance (OFCC). Then Secretary of Labor W. Willard Wirtz assumed responsibility for administering the order’s non-discrimination and affirmative action provisions. Edward C. Sylvester, Jr. was appointed the agency’s first director. In 1975, President Gerald Ford changed the name of the agency from OFCC to Office of Federal Contract Compliance Programs (OFCCP). The consolidation of contract compliance functions for equal employment opportunity occurred in 1978 when President Jimmy Carter signed EO 12086; OFCCP, as we now know it, was created.

Today, EO 11246, as amended and further strengthened over the years, prohibits federal contractors and subcontractors from hiring based on race, color, religion, sex, sexual orientation, gender identity, or national origin and requires those companies to take affirmative action to ensure equal opportunity employment in all aspects of hiring.

Check out OFCCP’s special splash page. Thanks to the many people in both the public and private sectors for advancing the goals of OFCCP over the last 50 years!

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The opinions expressed in this newsletter are the opinions of the individual author(s) and do not necessarily reflect the opinions of the Local JobNetwork™. The information appearing in this newsletter is meant to provide the reader with a general understanding of topics relating to OFCCP compliance requirements and is not legal advice. If you are seeking legal advice to address OFCCP compliance issues or requirements, you should consult an attorney. The Local JobNetwork™ expressly disclaims all liability with respect to actions taken or not taken based on any or all of the contents of this newsletter.