Wyatt Employment Law Report


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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.


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President Obama’s Equal Pay Executive Orders to Impact Federal Contractors

By R. Joseph Stennis

In support of National Equal Pay Day, President Obama signed an executive order on April 8, 2014, that prohibits federal contractors from retaliating against workers who discuss their compensation with each other and/or in the workplace. According to White House officials, this executive order will not compel workers to discuss pay and/or require employers to publish employee compensation. Instead, it will serve as a “critical tool” to encourage pay transparency, so that workers have an additional mechanism in place for discovering violations of equal pay laws and are able to seek appropriate remedies. Whether retaliation against employees who discuss their pay on social media outlets such as Twitter or Facebook would also fall under the President’s order is uncertain, but more than likely would be protected under the contemplated executive order.

Additionally, President Obama will direct the Labor Department this week to create and issue regulations that will require federal contractors to submit to the Deparment data regarding their employees’ compensation. This data must include details regarding employee gender and race. The Labor Department will utilize the data to conduct more targeted enforcement against federal contractors with the expectation that companies will comply voluntarily with equal-pay laws — the Equal Pay Act of 1963 and the Lilly Ledbetter Fair Pay Act. It remains unclear at this point what such “targeted enforcement” will entail. However, it may result in more enforcement activity by the Department if it concludes a company is not being compliant.


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President to Announce Minimum Wage Hike for Certain Federal Contractor Employees

By Edwin S. Hopson

Several news outlets, including the New York Times, are reporting that President Obama plans to announce tonight
during his State of the Union address that he plans to sign an executive order requiring that certain workers, including janitors and construction workers, who are employed by federal contractors be paid at least $10.10 an hour as a minimum wage.  This effort, which avoids the need for Congressional approval, may be the only way the President can effect such a change.


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Would the WARN Act Apply in the Event of a Federal Budget Sequestration?

By Edwin S. Hopson

On July 30, 2012, an Assistant Secretary of the U.S. Department of Labor issued an advisory and guidance to federal contractors concerning the applicability of the Worker Adjustment and Retraining Notification Act (WARN Act) to possible layoffs occasioned by federal government sequestration on January 2, 2013, under the Balanced Budget and Emergency Deficit Control Act of 1985, and the Budget Control Act of 2011, should the Congress and President not come to agreement on a federal budget.  That guidance was “no” — the WARN Act would not be triggered by such action and affected, covered federal contractors would not be in violation of the WARN Act for NOT providing 60 days’ notice of mass layoffs or a plant closing affecting at least 50 employees.

The issuance of this guidance has been criticized by the Republican House Education and Workforce Chairman, John Kline, and the Subcommittee on Workforce Protections Chairman, Tim Walberg, in a letter to Secretary of Labor Hilda Solis.  They argue that the Department of Labor’s guidance has no legal effect and may be misleading employers into not following the WARN Act’s requirements.

With the recent agreement on a short-term budget extension, this issue has now been pushed off for several months.

The Labor Department’s guidance can be found at: 

http://wdr.doleta.gov/directives/attach/TEGL/TEGL_3a_12.pdf

The Kline/Walberg letter may be found at:

http://edworkforce.house.gov/UploadedFiles/08-02-12_Letter_WARN_Act_Sequestration.pdf


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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


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NLRB Proposes to Require All Covered Employers to Post a Notice Containing NLRA Rights

By Edwin S. Hopson

In a press release dated December 21, 2010, the National Labor Relations Board (in a 3 to 1 decision) announced that on December 22, 2010, it would publish in the Federal Register a Notice of Proposed Rulemaking which rule would require all employers subject to the National Labor Relations Act (“Act”) to post a notice advising employees of their rights under the Act.  The Notice of Proposed Rulemaking provides for a 60-day comment period. Continue reading


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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. Continue reading