Employment Law Alerts & Articles

Category Archives: Monthly OFCCP Column

Jul 30

OFCCP Fox Report: Tips for Staying Off of the OFCCP’s Naughty List

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The following post is from a recent conversation I had with Candee Chambers, during which we discussed recent trends in OFCCP audits and the importance of building a good rapport with your OFCCP compliance officer.

JOHN: Candee, I wanted to let you know that I am hearing from many federal contractors from coast to coast that they continue to be upset about the OFCCP “bullying” them in audits. I just heard from a senior Employment Labor Lawyer at a major nationwide company who was calling to get my suggestion about how she should proceed to defend the company’s OFCCP audits going forward now that the last of her HR Managers has asked to be relieved of OFCCP audit responsibilities. She reported that her people are tired of the “abuse” and that the “straw that broke the camel’s back” happened this morning when an OFCCP compliance officer “went off on” the HR Manager by “screaming” at her over the phone and accusing the HR manager, among other things, of altering company documents to hide presumably damaging information. The HR Manager called the senior Labor counsel crying …

THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.

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Jul 24

OFCCP Fox Report: 3 Things You Might Have Missed Regarding the President’s Latest Amendment to Executive Order 11246

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The President’s latest amendment to Executive Order 11246 does 3 primary things: 1. Amends four specific provisions of Executive Order 11246 to now insert and compel “sexual orientation” and “gender identity” (aka informally referred to in society as Lesbian, Gay, Bisexual & Transgender=LGBT) compliance obligations by… Read more.

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Jan 10

OFCCP Fox Report: OFCCP’s Section 503 and VEVRAA Final Rule: The Race to the Finish Line Now Moves Back in a Relief for Federal Contractors

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Taking a page from the Obamacare experience (keep the substance of controversial new policy changes intact, but delay implementation to allow those affected more time to adapt to the new policy regimen), OFCCP’s most recent Webinar (December 17, 2013) on VEVRAA and Section 503 has now “aligned” contractor obligations to comply with the so-called “Subpart C” requirements with the Affirmative Action Plan (AAP) implementation date. This position now firmly clarifies what had been differing written and oral statements about the issue of when contractors had to comply with Subpart C. The practical affect (and I will lay out some specific examples below) is to delay almost all (but NOT all) of the federal contractor community’s new VEVRAA and 503 affirmative action requirements to 2015 and some even into 2016. (See catalogue below of the several compliance obligations contractors MUST nonetheless implement on or before March 24, 2014). This is welcome relief to a weary federal contractor community.

Despite giving contractors a longer runway to comply, OFCCP is nonetheless strongly encouraging (but NOT requiring) those federal contractors who can earlier comply with the Subpart C requirements to do so effective on or after March 24, 2014…the ostensible “effective date” of the new Final regulations.

So, here is what has happened, and then the concrete (and surprising) examples…

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Nov 27

OFCCP Fox Report: When Federal Contractors MUST Implement OFCCP’s New Section 503/VEVRAA Regulations, and When They MAY Do So

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I am very excited to be teaming with DirectEmployers, Bill Warren and Candee Chambers, DE’s new Vice President of Compliance & Partnerships, and to be writing my first column for you. This November column is the first of 8 columns on OFCCP compliance I will write over the next year. Each quarter, I will write two columns and also present a webinar to DE Members on an OFCCP compliance topic. If you have ideas/issues you would like me to address in a column or in an upcoming Webinar, please let Candee know. I will write a December column, for example, and then host a 90-minute webinar on January 22, 2014 beginning at 2:00 p.m. EST (MARK YOUR CALENDARS NOW!)

FOCUS: My columns and the webinars will focus on popular OFCCP compliance problems and practical solutions to them. I will often offer a “Practice Tip.” My writing will be “down to earth” and specific. I will tell you to turn right, turn left, or to drive straight ahead. Candee and I will tailor my topics to supplement the OFCCP compliance services DirectEmployers Association daily supplies its members.

I want to start my relationship with you by clearing up an OFCCP compliance issue I see currently engulfed in confusion. Erroneous advice I see unfolding in ILG meetings and in Internet blogs across the country is also subsidizing the inherent complexity of OFCCP’s regulations. The compliance issue of interest today concerns WHEN a federal contractor MAY implement OFCCP’s new section 503 regulations…

Read more.

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Nov 18

The Fox OFCCP Report: OFCCP and Franz Kafka’s “Metamorphosis”: Kafka Had It Right

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“When Gregor Samsa woke up one morning from unsettling dreams, he found himself changed” (Fox: wait for it, wait for it) “into a monstrous vermin.”

NOTE: This is my last column for the Local JobNetwork™. It has been a special and dear privilege to share my thoughts about OFCCP compliance with you via the LJN. Lynn Molitor and her crew at LJN have been very good to have conceived this communication channel, to have invited me to participate and to have so carefully edited and published my column for the past two years. I wish you well! Thanks…John

The opening sentence above is the beginning of Franz Kafka’s 1915 novella “Die Verwandlung” (typically translated to mean “The Metamorphosis”). While literary critics generally regard “Die Verwandlung” as one of the greatest works of fiction of the 20th century, it also serves as a fitting allegory and education vehicle helpful to us to understand the transformation of compliance obligations in progress at the OFCCP. While Gregor’s seeming overnight transformation into a “monstrous vermin” is certainly front and center, Kafka’s title for his famous novel invites the reader to consider all of the other ways that Gregor and the other characters are transformed in the course of the story. …

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Oct 18

The Fox OFCCP Report: What It All Means: Where Is OFCCP Taking You: Carter to Clinton to Obama

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Punch line: It’s all about documentation, just when you have fired and transferred all of your document clerks.

Weldon Rougeau, the Carter Administration OFCCP Director, forever changed OFCCP and laid the foundation bricks for the building Pat Shiu and the Obama Administration are now constructing on Director Rougeau’s foundation.

Before Director Rougeau, OFCCP was a federal contractor agency requiring Affirmative Action. While Executive Order 11246 (but not Section 503 or VEVRAA) had non-discrimination authority to be sure, the agency rarely pursued discrimination investigations. Moreover, it lacked regulations allowing it to file Administrative Complaints before Administrative Law Judges seeking back pay. This was not an early oversight – the Congress had specifically declined to grant OFCCP such authority, or the right to issue self-enforcing subpoenas. Director Rougeau’s regulations purported to create that authority for the first time. It was thereafter that federal contractors then began to count – they counted Applicants; they counted Offers, Hires, and who was in the pool for promotion; and they counted who was an “Applicant” for Involuntary Termination. The bricks were laid for the coming 30 years of OFCCP “failure to hire entry-level production labor” investigations and prosecutions (which to this day still account for well over 95% of all of OFCCP’s back pay collections). The EEOC did not pursue failure to hire cases since few Applicants filed Complaints and the EEOC, of course, was/is Complaint driven.

The era of “contractors as document clerks” began as we began to catalogue race, sex and ethnicity, and Xerox (through its Business Services Division) created “carbon paper” “tear-away sheets” to help contractors cause Applicants to self-identify race, sex and ethnicity…to help federal contractors count…

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Sep 23

The Fox OFCCP Report: When is an OFCCP “Placement Goal” a “Utilization Goal” or a “Benchmark Goal” or a “Quota”?

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This month’s column is about the magic, majesty and meaning of words.
One of my favorite books is Lewis Carroll’s “Through The Looking-Glass and What Alice Found There” (and even before The Jefferson Airplane and Grace Slick immortalized it in the 1967 rock song “White Rabbit” and the Hippy movement adopted the book as a prescription to expand their minds by eating psychedelic mushrooms and other hallucinogens). Among many other things, Through The Looking-Glass gave Professor Carroll, an English theoretical mathematician and logician, a chance to marvel at the wonder of the English language:

“I don’t know what you mean by ‘glory,'” Alice said. Humpty Dumpty smiled contemptuously. “Of course you don’t – till I tell you. I meant ‘there’s a nice knock-down argument for you!'” “But ‘glory’ doesn’t mean ‘a nice knock-down argument’,” Alice objected. “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean – neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things?” “The question is,” said Humpty Dumpty, “which is to be master – that’s all?” Alice was too much puzzled to say anything, so after a minute Humpty Dumpty began again. “They’ve a temper, some of them – particularly verbs, they’re the proudest – adjectives you can do anything with, but not verbs – however, I can manage the whole lot! Impenetrability! That’s what I say!”

Years later as a law student in Washington D.C., I had one of many occasions to reflect back on Humpty Dumpty’s comments in Through The Looking-Glass. That morning, I picked up The Washington Post newspaper and noticed a front page story reporting the conclusion of a decade-long epic legal battle in the food industry. The industry, as it turned out, was trying to classify, for advertising purposes, what a Pringle was. Was it a “Potato Chip”, as its manufacturer argued with hope (given the GREAT popularity of what was an emerging billion dollar a year chip industry (not to be confused with semi-conductor chips…although that industry was also emerging, but went poorly with guacamole and salsa))? Or was a Pringle something else, as the rest of the potato chip industry argued fearful that the Pringle might set the standard…

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Aug 19

The Fox OFCCP Report: New OFCCP Federal Contract Compliance Manual Has Many Provocative Surprises: Head-Knocking in Audits Lies Ahead

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Because OFCCP has not yet released the new “Federal Contract Compliance Manual” (“FCCM”) to the public even while the agency uses it to train its Compliance Officers, I thought I would devote this column to the new FCCM and report (“verbatim”) some of its more provocative content. Because you do not have copies of it, I did not want to summarize it. Rather, I wanted you to see for yourself whether I had faithfully characterized what I am reading. The new FCCM is dated July 2013 and is a streamlined and svelte 486 pages long. The new 2013 FCCM replaces the 730 page 1998 OFCCP FCCM, effective already.

SUMMARY: While the new FCCM is very well written, and understandable, there are many highly provocative policy changes which affect audits in an immediate and dramatic fashion. I have tried to give you a smattering, below, of some of the most important policy and practice shifts. However, my organization of the material, below, does not proceed from most important to least important, but rather follows OFCCP’s layout and organization of its new FCCM. My commentary is in black “ink” and usually precedes the FCCM passage of interest. You will find the new FCCM language of interest in red bold “ink”, below.

With that said, the three biggest shifts in policy I discuss and urge you to look for, below, appear to me to be OFCCP’s new-found assumption that it now has legal authority to conduct “Offsite Reviews of Records”…

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Jul 17

The Fox OFCCP Report: The Myth of OFCCP’s Debarment Authority:

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OFCCP Director Pat Shiu has garnered some flattering and critical (both) press coverage for her recent speech to the annual meeting of The National Employment Lawyer’s Association (NELA), one of the country’s leading trade associations for Plaintiff Employment Lawyers. (Note: NELA is not to be confused with NELI – the National Employment Law Institute, which many believe, is the country’s leading non-profit employment law training institute. Ethics Alert: I sit on the Board of Directors of NELI.)
Director Shiu’s speech is on OFCCP’s website at this link: http://www.dol.gov/ofccp/addresses/Director_address_NELA_Jun272013.htm
While many things caught my eye in this major speech, the statements that leaped off the page at me were these two as Director Shiu, an accomplished civil rights litigator, was describing to the NELA membership OFCCP’s conciliation mission and its litigation “sanctions”: …

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Jun 19

The OFCCP Report: IF YOU ARE USING OFCCP-REQUIRED AFFIRMATIVE ACTION PROGRAMS CORRECTLY, YOU WILL NOT FEAR THE COMING U.S. SUPREME COURT DECISION IN FISHER V. UNIVERSITY OF TEXAS

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The precise legal question presented in Abigail Noel Fisher v. University of Texas at Austin et al., No. 11-345 (U.S. Sup Ct, cert granted 2/21/12) is:

“Whether this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, 539 U.S. 306 (2003), permit the University of Texas at Austin’s use of race in undergraduate admission decisions.”

So, how did UT use race in its admission decisions? And, why would federal contractors subject to OFCCP’s “Affirmative Action Plan” jurisdiction care about this issue since the Fisher case involves college admission decisions, and not employment decisions?
Taking the second question first, federal contractors will …

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