Employment Law Alerts & Articles

May 21

The OFCCP Report: The New Rules for OFCCP Onsite Audits: How Much “Cause” is “Probable” Enough?

FoxI think many readers are going to be very surprised by this column because OFCCP has recently completed a very BIG change to its audit procedures, but did not tell anyone. No News Release. No Federal Register Notice. No Webinar. Not even a “podium policy” announcement. And yet, the change was monumental, in my judgment, and is only the fourth such change in OFCCP’s nearly 50 year audit history. And, it changes the way EVERY contractor defends onsite audits (as rare as those will be in coming years due to related changes to OFCCP’s recently unveiled new audit strategies). More importantly, the recent BIG change to OFCCP’s audit procedures now changes dramatically the circumstances and proof OFCCP District Offices now need to pony up before they may lawfully come onsite to inspect contractor establishments. This change also now changes and truncates, dramatically, the range of issues/documents OFCCP may review onsite…

Read more.

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.

Subscription Information:

Fox, Wang & Morgan does not control distribution of my OFCCP column. To be placed on the complimentary subscriber’s list and receive monthly email notifications to my monthly “Fox OFCCP Report”, please send your email address to: OFCCPDigest@localjobnetwork.com and ask to be added to the “Fox OFCCP Report” subscription list.

May 01

The OFCCP Report: HOW OFCCP COVERS HOSPITALS

FoxHERE’S THE RACK-UP AFTER THE UPMC CASE DECISION

I was going to write about the provocative way OFCCP currently selects contractors and contractor establishments for audit, but the tenor and volume of calls and e-mail traffic to my desk in the last two weeks from health care clients and industry representatives have persuaded me I need to wade NOW into the health care-OFCCP thicket. Apart from straightening out the welter of confusion regarding OFCCP’s coverage of the health care industry, I discuss below how to value hospital contracts (which is very tricky, as it turns out). I also discuss what kinds of federal contracts are not covered and do not subject companies to OFCCP’s jurisdiction if the companies receive these kinds of federal monies. And, along the way, I explain UPMC’s four failed defenses to OFCCP jurisdiction over it and why all four lost arguments were entirely predictable (as I first predicted in 2006). There is also a lot of information in this posting about government contracting issues and strategies.

First, health care institutions were OFCCP’s number one audit target in the most recent (March 27, 2013) round  of OFCCP CSALs (“Corporate Scheduling Announcement Letters”…these are the so-called “Notice Letters” just giving a company a “heads-up” warning that OFCCP may soon be auditing them). Moreover, dozens of major hospitals are already receiving OFCCP audit Scheduling Letters setting the recipient hospitals down for immediate audit. (By the way, ignore all the OFCCP Blogs which have it absolutely wrong when they write that OFCCP is conducting “routine, random” audit selections. OFCCP got rid of “routine, random” selections of contractors for audit two years ago. OFCCP now targets industries…but that was the story I was going to write, with its numerous additional wrinkles and sub-topics, until OFCCP’s health care audit barrage knocked that audit story to a later column. Ah, so little space, so much to write about with this active Administration.) …

Read more.

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.

Subscription Information:

Fox, Wang & Morgan does not control distribution of my OFCCP column. To be placed on the complimentary subscriber’s list and receive monthly email notifications to my monthly “Fox OFCCP Report”, please send your email address to: OFCCPDigest@localjobnetwork.com and ask to be added to the “Fox OFCCP Report” subscription list.

Mar 23

The OFCCP Report: OFCCP’s Great Compensation Discrimination Publicity Stunt of 2013: A Change without a Difference

Amid great press fanfare, OFCCP reported February 26, 2013 via News Release and personal phone calls that it had released, effective February 28, 2013, the shackles the agency felt the Bush Administration had placed on the agency in 2006 and which had prevented OFCCP for the last 6 years from effectively prosecuting compensation discrimination:

“Today, we are lifting arbitrary barriers that have prevented our investigators from finding and combating illegal pay discrimination, said OFCCP Director Patricia A. Shiu, a member of the President’s National Equal Pay Task Force”, the Department of Labor’s News Release intoned.

“Prior to this action, OFCCP was constrained by a methodology adopted in 2006 that made it harder for the agency to exercise its full legal authority because it required use of the same narrow formula to review all contractor pay practices, regardless of the industry, types of jobs, issues presented or available data”, the News Release further asserted.

“The new approach described in the notice (of final rescission) will enable OFCCP investigators to better examine practices and available evidence to uncover discrimination and evaluate contractor compliance with Executive Order 11246”, the News Release concluded.

…

Read more.

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.

Subscription Information:

Fox, Wang & Morgan does not control distribution of my OFCCP column. To be placed on the complimentary subscriber’s list and receive monthly email notifications to my monthly “Fox OFCCP Report”, please send your email address to: OFCCPDigest@localjobnetwork.com and ask to be added to the “Fox OFCCP Report” subscription list.

 

Feb 21

The OFCCP Report: OFCCP’s New Use of Publicity and Press Releases: New Sheriff, New Rules and New End Objectives

First, you should know that media policy is governed by the Secretary of Labor’s Press Officer, and not by the individual agencies within the U.S. Department of Labor. So, the rules could change again with the President’s appointment of, and the Senate’s confirmation of, a new Secretary of Labor to replace now departed Secretary Solis…but I do not think so since the DOL Press Policy has thus far been White House driven.

Every Secretary of Labor has his or her own personal sense of how to use the media and all of Secretary Solis’ predecessors had a formal “press (or media) policy” as to how and when to use publicity. Almost all of Secretary Solis’ predecessors used the media to magnify their substantive policies and to highlight vigorous enforcement of policies of interest to the Secretary or born of the times in which they found themselves.

Secretary Marshall (Carter Administration) was a thoughtful academician and rarely used the media to highlight what the Department was doing. He reserved use of Press Releases for major policy pronouncements or litigation victories illustrating laws about which companies should be aware so they did not make the same mistake one of their competitors made.

Ray Donovan (first term Reagan Administration) loved to highlight Wage-Hour and OSHA issues (things he knew about personally as the owner of the world’s then second largest construction company). I recall well Press Releases and “live” media coverage of the Secretary personally joining Wage-Hour investigators to storm “work dungeons” in Manhattan’s garment district where they found hundreds of illegal aliens working at sewing machines in dimly-lit, poor and cramped working conditions. It was a “must do photo op” for several Secretaries thereafter, complete with images of a large posse of Wage-Hour investigators battering down locked doors with sledge hammers: the White Knights riding in to the rescue. Great TV “12 second sound bite” imagery. But, the objective was to shut down the “sweat shops” and stop that kind of unlawful business conduct. …

Read more.

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.

Jan 29

The Fox OFCCP Report: What’s New at OFCCP for 2013: A Potpourri of Recent Changes to OFCCP Policies and Audit Procedures

HAPPY NEW YEAR!

This first column of the year is a blend of predictions looking forward and a potpourri of recent OFCCP developments, both small and large.

1. The Change of Administration Changes Everything: Potentially including Both Substance and Timing

Most two-term Presidents suffer close to 100% turnover of their senior managers at the 4 year intermission (President Clinton was an exception: 5 of his Cabinet members stayed for the full 8 year Presidency, while President Bush hit the average with 2 who stayed on). The two critical transitions affecting the backroom at OFCCP are the imminent departure of Secretary of Labor Solis and the departure (last year) of Office of Management and Budget (OMB) Director Peter Orszag (Deputy OMB Director Jeffrey Zients remains the Acting OMB Director). …

Read more.

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.

Nov 29

The Fox OFCCP Report: What the Obama Re-Election Means For OFCCP: “You’re going to need a bigger boat”

It does not mean “more of the same”. The President won a narrow, but nonetheless decisive, victory. But, he has little or no “mandate” and had very short “coattails”, as pundits say in the Nation’s Capital. While the states will continue to tally ballots for several more weeks and refine the election results, it appears the morning after the election that President Obama won the popular vote by only about 2.8 percentage points. The House of Representatives remains firmly in Republican control with a healthy margin, although the President’s coattails did apparently shrink the margin by adding two more Democratic House members in a chamber in which all 435 seats were up for re-election (a gain of .0045 of the total seats). The Senate stayed in Democratic control and is now more firmly controlled by Democrats (up from 51 to 53 Democrats), although it is still often “iffy” for the President because of the pressure of numerous conservative Southern “Blue Dog” Democrats and the presence of two “Independents” who caucus with the Democrats. And, the President lost over 50 Electoral College votes from his 2008 landslide victory over John McCain. Significantly, too, Governor Romney attracted more votes than …

Read more.

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.

Nov 29

California Court Approves Overtime Rounding

A California Court of Appeals recently ruled that, for purposes of calculating overtime pay, employers may round non-exempt employees’ overtime hours to the nearest one-tenth of an hour. In See’s Candy Shops, Inc. v. Superior Court, No. D060710 (Cal. App. 4th, Oct. 29, 2012), plaintiffs filed a class action lawsuit alleging that See’s Candy Shops’ timekeeping practice of rounding its employees’ overtime hours to the nearest one-tenth violated California Labor Code § 204 (which “requires an employer to pay an employee ‘[a]ll wages’ every two weeks,”) and § 510 (which requires an employer to pay its employees overtime “for ‘[a]ny work’ after eight hours per day or 40 hours per week.”). In ruling against the plaintiffs, the court looked to the federal Fair Labor Standards Act, which permits rounding to the nearest five minutes, one-tenth of an hour, or quarter of an hour. The court also noted that the California Division of Labor Standards Enforcement (“DLSE”) Manual approved of the FLSA’s rounding standard. Although the court was not required to follow the guidelines set forth in the DLSE Manual, the court found the guideline persuasive. As such, the court held that employers are “entitled to use the nearest-tenth rounding policy if the rounding policy is fair and neutral on its face and ‘it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time actually worked.'” Although employers may now wish to implement a policy that rounds employee overtime hours to the nearest one-tenth of an hour, employers should be cautious that such policies are not used in a manner that will work against its employees over a period of time. In the See’s Candy case, the employer presented persuasive evidence and expert testimony establishing that its rounding policy actually resulted in a total gain of 2,749 overtime hours for the employee class involved in the litigation. As such, employers should conduct periodic audits to ensure their rounding policies average out in a neutral manner over a period of time. Employers are encouraged to consult with legal counsel before implementing a rounding policy.

Oct 25

The Fox OFCCP Report: OFCCP’s New Formulas to Identify Federal Contractors For Audit

I cannot currently prove it in a court of law, but I would bet my next paycheck that I know how OFCCP is now going about the task of selecting federal contractors for audit.

OFCCP roiled the waters last year in Fiscal Year 2012 with new and secret procedures to select contractors for audit. While the President promised a transparent federal government, Pat Shiu never promised to make OFCCP policy and practice changes transparent. And she has not. One of the current difficulties between OFCCP and the contractor community, indeed, springs from the contractor community’s perception that OFCCP now routinely makes unilateral and non-collegial-body decisions and regularly deploys new operating procedures, especially concerning audits. Contractors learn about these matters “by hook and by crook” which has made the role of OFCCP vendors knowledgeable across a wide spectrum of geographically dispersed OFCCP District Offices …

Read more.

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.

Sep 25

Fox OFCCP Report: Notes from Kona and the 2012 NILG Meeting

For those of you who do not know, the National Industry Liaison Group (“NILG”) held its annual meeting at Kona, on the Big Island of Hawaii August 27-31, 2012. For those of you unfamiliar with the NILG, please go to: www.nationalilg.org
Most lasting impression (other than pink/purple sunsets with a fireball red sun sinking into the ocean over the horizon):

  • Keynote speaker Lilly Ledbetter sitting at a table signing her book at the head of a line of NILG attendees 30-40 yards long…ALL women.

Fox Takeaway: While compensation discrimination is in fact a very small dollar value and very small volume issue in our society, the issue is not yet going away.  Read more.

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.

Aug 27

Fox OFCCP Report: The Strange Case of Hawaii and Puerto Rico: Or, Where to Affirmative Action?

By convention and practice (not by Executive Order, statute, regulation or guideline), OFCCP has never required covered federal contractors and subcontractors to prepare Affirmative Action Plans for minorities for their establishments in Hawaii or Puerto Rico. OFCCP has nonetheless always required federal contractors with establishments in Hawaii and Puerto Rico to create AAPs for Women. (You will recall the entertaining case in the Clinton Administration when OFCCP sued a small latex glove manufacturer in the Puerto Rican rain forest outside of San Juan (which was 100% Puerto Rican owned and which employed a 100% Hispanic workforce) because it refused to create AAPs. The company wondered: “Really? What’s the use?” OFCCP answered, of course, that …

Read more.

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.