Current Developments in Federal Employment Law Douglas B. Brown

Current Developments in Federal Employment LawDouglas B. Brown

Employment Law UpdateOR:

“The days of full-employment for employment lawyers.”

Washington Update• The current administration

in Washington has been particularly focused on the entire world of how employers interact with their employees.

Washington Update• Employment Developments

• The Fair Pay Act• Obamacare• Changes to the National Labor Relations Act

• EEOC Regulations• Changes to the Equal Pay Act

Executive Orders

• 2/12/14 – Raising the minimum wage for new/renegotiated federal contracts to $10.10 an hour from $7.25 an hour.

• 4/8/14 – Non-Retaliation for Disclosure of Compensation Information.

Presidential Memorandums• 3/10/14 – Directed the Labor

Department to review overtime eligibility requirements under the Fair Labor Standards Act.

• 4/8/14 – Directed the Labor Department to prepare new regulations requiring government contractors and subcontractors to submit to the DOL summary data on compensation by race and gender.

What Are Some of the New Regulations/Guidelines Employers Need to be Aware of?

• Regulations for Government Contractors/Subcontractors• Minimum Wage• Affirmative Action

• Use of Criminal Background Checks• Developments In Discrimination Law

Government Contractors/Subcontractors• How many of you do work on

federal construction projects (federal buildings, military bases, etc.)?

• If you enter into a new federal construction contract on or after January 1, 2015, then you will be subject to the new minimum wage of $10.10 an hour (up from the current wage of $7.25 an hour.

Government Contractors/Subcontractors

• On January 1, 2016 and then annually thereafter, the Secretary of Labor will determine whether or not to increase the minimum wage.

• The increase will be published 90 days before it becomes effective; it will be increased by a percentage equal to the increase in the Consumer Price Index; it will be rounded to the nearest multiple of $0.05; and it will not supersede any law establishing a higher minimum wage.

Government Contractors/Subcontractors

• What if you work on federal construction projects (federal buildings, military bases, etc.) and the value of your contract is more than $10K?

• How many of you do work on federally assisted construction contracts (paid in whole or in part with federal funds or paid for by funds that are borrowed on the credit of the federal government) and the value of the contract is more than $10K?

Government Contractors/Subcontractors

• If you are not a prime contractor, you may be a subcontractor if the work/goods/services you provide are necessary to the performance of the prime contract.

Government Contractors/Subcontractors

• If you are a covered government K/SubK, you have to comply with a veritable plethora of workplace laws and regulations covering matters such as:

• Wages

• EEO

• Affirmative Action

• Health & Safety

• Labor Relations

Construction Contractors/Subcontractors• The U.S. Department of Labor

has announced that it is going to make federal construction contracts a focus of its enforcement agenda for the foreseeable future.

Construction Contractors/Subcontractors• If I am either a construction

contractor/subcontractor doing $10K worth of business on either a federal construction contract or federally assisted construction contract, what are my obligations?

• It depends. It depends on whether it’s federal or assisted, and on the dollar amount.

Construction Contractors/Subcontractors

• If it’s $10K or more and it’s on a federal construction project, then you must comply with Executive Order 11246 regarding affirmative action/nondiscrimination for minorities and females, as well as with Section 503 of the rehabilitation act requiring affirmative action and nondiscrimination for disabled individuals.

• If it’s $100K or more, then you must comply with VEVRAA (Vietnam Era Veterans Readjustment Assistance Act) requiring Affirmative Action for Protected Veterans.

Construction Contractors/Subcontractors• If it’s $10K and it’s on a federally assisted

construction project, then you must comply with Executive Order 11246 regarding affirmative action/nondiscrimination for minorities and females. There is no coverage for the disabled individuals or protected veterans regarding federally assisted construction projects.

Construction Contractors/Subcontractors• If you are a covered contractor/

subcontractor, then the regulations apply to ALL OF YOUR WORKSITES, not just the federal construction or federally assisted construction worksites.

What Does EO 11246 Require?• EO 11246 requires that covered K/SubKs:

• Not discriminate on the basis of race/sex

• Set goals depending on the location of the construction site

• Engage in outreach

• Keep records

• Monitor results

• Set Goals depending on the location of the job site.

• Females – 6.9% nationwide• Minorities – (Cleveland, OH) – 16.1%

What Does EO 11246 Require?

The EO requires Sixteen Affirmative Action Steps.

1. Maintain harassment/discrimination free environment.

2. Maintain list of minority/female recruitment sources.

3. Maintain file of minority/female applicants.

4. Notify OFCCP if union(s) impede AA efforts.

What Does EO 11246 Require?

The EO requires Sixteen Affirmative Action Steps.

5. Develop OTJ training.

6. Disseminate EEO/AA policy to unions/training programs.

7. Annual review of policies with all individuals making employment decisions.

8. Disseminate policies to SubKs.

What Does EO 11246 Require?

The EO requires Sixteen Affirmative Action Steps.

9. Actively recruit minorities/females.

10. Encourage current minority/female employees to refer other minority/females.

11. Validate all tests.

12. Evaluate minorities/female for promotional potential.

What Does EO 11246 Require?

The EO requires Sixteen Affirmative Action Steps.

13. Ensure personnel practices don’t discriminate.

14. Ensure facilities are non-segregated.

15. Document solicitations for Ks from minority/female firms.

16. Review Supervisor’s compliance with the regs.

What Does EO 11246 Require?

What Does Section 503/VEVRAA Require?• If you are working on a federal

construction contract with a value of $10K, you have to comply with the disabled requirements.

• If you are working on a federal construction contract with a value of $100K, then you have to comply with the Veterans requirements.

What Has Happened?September 24, 2013

• OFCCP publishes final rule on revisions to Section 503 (Disabled) and VEVRAA (Veterans) Regulations in the Federal Register.

Format of the Revised Regulations• The revised rules for Veterans and

the Disabled mirror each other in large part.

• There are 5 subparts to each rule.

• While there are many new aspects to the rules, most of the language in the revised regulations is similar to the prior language.

Employment Law UpdateOR:

“The days of full-employment for employment lawyers.”

Timing

Effective Now (as of March 24, 2014):

• Subpart A – Prelims/EEO Clause

• Subpart B – Prohibitions

• Subpart D – Enforcement & Complaints

• Subpart E – Ancillary Matters

Subpart E - Ancillary MattersLabor Unions:

• If compliance includes possible modification to a CBA, will have to work with union and OFCCP to comply.

• If any union involvement, contact DBB, LLC to discuss.

Subpart A

• Preliminary Matters and the Equal Opportunity Clause

Subpart A - 503 ADAAA503 now incorporates the ADAAA language:

• This is not a substantive change as most employers are already covered by the revisions to the ADAAA that became effective March 25, 2011.

Subpart A - Notices• 503 still requires the posting of notices of coverage

and rights for both employees and applicants. This refers to the “EEO is the Law” poster.

• The regulations require that, if requested, notices be made available in large print and/or braille and be posted at a height where they can be read by individuals in wheelchairs.

• The notices must be posted electronically on the contractor’s intranet for employees and on the job portal for applicants, as well as at the facility.

Subpart A - Unions

• If working with a union, must provide notice to the union(s) of the organization’s affirmative action obligations as well as the non-discrimination provisions of the regulations.

Subpart A – EEO Tagline• The EEO tagline that accompanies all

job postings must specifically reference “disability” as opposed to using an abbreviation such as “D.”

Subpart A – EEO Clause• While contractors may comply with

the requirement to include the EEO clause set forth in the regulations in all covered contracts, subcontracts and purchase orders by reference, they must now include MANDATORY LANGUAGE in the form required by the regs.

Subpart A – 503/VEVRAA EEO ClauseOnly applies to activities within the U.S.EEO Clause - By reference and in bold font:

This contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals on the basis of protected veteran status or disability, and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans and individuals with disabilities.

Subpart A – VEVRAA Job ListingsContractors must list all open positions with the appropriate state job delivery system in the state where the job is located, with the exception of:

1. Executive or top management (meets the FLSA Executive Exemption).

2. Jobs to be filled exclusively from within.

3. Temporary positions lasting 3 days or less.

Contractors must:

1. List the openings in the format specified by the state.

2. Notify the state that the contractor is a federal contractor.

3. Ask the state to provide priority veterans’ referrals.

Subpart A – VEVRAA Job Listings

Contractors must:

4. Provide contact information for the hiring official at the establishment where the job exists.

5. If using a 3rd party to help fill the opening, provide the 3rd party’s contact information.

Subpart A – VEVRAA Job Listings

Subpart A – VEVRAA 3rd Party Private Job Services• Contractors can continue to utilize 3rd

party private job services (e.g. Direct Employers; Monster) as long as the 3rd party also complies with the requirements to list the jobs in a format specified by the state and asks for priority referrals of protected veterans.

Primary Things to do Now• EEO Tag Line

• Links to “EEO is the Law” Poster

• On-line Accessibility

• EEO Clause

• Job Listing Requirements

Subpart C – Affirmative Action Program• Phased-in implementation of Subpart C.

• The OFCCP has clarified that contractors with an AAP in place on the effective date of the regs may continue to operate under that AAP until the next updating cycle.

• From a timing perspective, if the current AAP was in place on 7/1/13, compliance with Subpart C begins 7/1/14.

Subpart C -Affirmative Action Program

Subpart C –503 Invitation to Self-IDThere are four invitations to self-ID as to disabled status:1. Pre-offer: As to whether the individual is/is not

disabled.2. Post-offer: Same3. First year invitation4. Every 5 year invitation5. Midway reminderMust use the form developed by OFCCP.

• Results of self-ID may not be included in personnel or medical files. Must be kept in separate “data analysis file.”

• If kept electronically, must be kept confidential, but available upon request.

• Should be able to distinguish at what stage the ID occurred (Pre/Post/1 Year/5 year).

Subpart C –503 Invitation to Self-ID

There are two invitations to self-id as to veteran status:

1. Pre-offer: As to whether the individual is a “protected veteran.”

2. Post-offer: Identify specific category of protected veteran.

May be done in a form developed by the contractor.

Subpart C –503 Invitation to Self-ID

• While there is no requirement for the results to be kept in a separate data analysis file, from a practical perspective, there is no reason not to do so.

• However, do not combine the 503 results with the VEVRAA results.

Subpart C –503 Invitation to Self-ID

• The post-offer invitation to self-ID can be made any time after the offer of employment but before the applicant begins his/her job duties.

Subpart C –503 Invitation to Self-ID

Outreach

Section 503 – Recommended:

• Do so anyway. OFCCP is asking for a list of efforts, contact names, phone numbers and evidence.

• National (e.g. Direct Employers) and local (Bureaus of vocational rehabilitation).

OutreachVEVRAA – Mandatory:

List jobs with state employment service delivery system (ESDS).

• Must contain:• VEVRAA federal contractor notice;• Contact info for hiring official;• Contact info for 3rd parties (if any) assisting in

filling position; • Request “Priority Referral” of protected vets.

OutreachVEVRAA – Recommended:

• National (e.g. Direct Employers)

• Local Veterans Administration (VA)

• Colleges

• Transition Offices (TAP)

• Veterans’ Groups

• OFCCP’s Employment Resource Referral Directory (ERRD)

DOCUMENT EVERYTHING.

Subpart C- Required Contents of AA ProgramsThe AA Program must provide for specific data collection efforts including:

• # of Disabled/Vet applicants

• # of job openings and jobs filled

• # of total applicants for all jobs

• # of Disabled/Vet individuals hired

• # of total hires

Data maintained for 4 years

Subpart C – Goals/Benchmarks• 41 CFR 60-741.45/60-300.45:

• Utilization Goal of 7%

• Hiring Benchmark of 7.2%

IT IssuesMatters to address with IT systems:• Ensure accessibility of ATS/Employee Intranet.• Provide information on requesting an

accommodation for using the jobs portal and Intranet.

• Post 503/Vets policy on ATS and Intranet.• Ensure EEO Tag Line is on all job postings on jobs

portal.• Ensure 503/Vets Self-ID forms are on jobs portal.

IT IssuesMatters to address with IT systems:

• Ensure that records in ATS and HRIS are properly recorded and reported.

• Ensure that ATS and HRIS are capturing applicant/ employee responses to invitation to self-ID.

• Ensure that ATS and HRIS are retaining results of applicant and employee responses to invitation to self-ID (4 years).

• Ensure that ATS and HRIS are maintaining confidentiality of results of applicant and employee responses to invitation to self-ID.

IT IssuesMatters to address with IT systems:

• Ensure that ATS and HRIS can report the results of applicant and employee responses to invitation to self-id.

• Establish a system to identify subcontractors, vendors and suppliers for the purpose of sending them notice of the contractor’s 503/Vets affirmative action obligations.

• Ensure 4 year record retention schedule is in place as to data metrics.

Criminal Background Checks• OR: “Ban the Box”

• Both the EEOC and FTC have issued “guidance” on the use of criminal background checks.

Criminal Background Check • EEOC is concerned about the effect of

blanket exclusions from employment of individuals with criminal records. Such exclusions have a disparate impact on minorities due to higher levels of criminal records.

Criminal Background Checks• Further, the FTC treats criminal

background checks done by 3rd parties the same way it treats credit checks and requires employers to comply with the Fair Credit Reporting Action requirements.

Criminal Background Checks• Per the EEOC, while not prohibited, if doing

criminal checks, you must do it for all. You should consider the seriousness of the offense; the relationship to the job; and disqualify only if job related.

• Some states prohibit pre-offer inquiries into criminal records (e.g. CA, CO, CT, HI, IL, MD, MA, MN, NM, RI).

Criminal Background Checks• Per the FTC, if conducting background

checks, must:• Disclose that there will be a background

check.• Get the applicant’s consent.• Certify to the “checker” that the

employer has complied with the notice requirements.

Criminal Background Checks• If taking adverse action because of the

results of a background check, you must:• Provide notice including copy of report.• Tell applicant that they were rejected. • Who prepared the report.

Criminal Background Checks• If taking adverse action because of the

results of a background check, must confirm:

• That the “checker” can’t give reasons for the rejection

• That the applicant can dispute the accuracy of the report

Retaliation Claims

• In a case involving a construction contractor in Nevada, the court held that even if the original claim of sexual harassment is unfounded, that a claim of retaliation against the complainant may survive and be actionable.

Retaliation Claims

• In Westendorf v. West Coast Construction of Nevada, a female project manager assistant sued her employer under Title Vii of the Civil Rights Action of 1964 for sexual harassment and retaliatory discharge alleging that she was subjected to unlawful sexual harassment and then terminated in retaliation for having made the original complaint.

Retaliation Claims

• The District Court originally dismissed both claims.

• The Plaintiff then appealed the dismissal to the 9th Circuit Court of Appeals.

• The 9th Circuit affirmed the District Court’s holding regarding the dismissal of the sexual harassment claim.

Retaliation Claims

• However, the 9th Circuit found that even though the claim of sexual harassment failed, that the District Court failed when it also dismissed the claim of retaliatory discharge.

Retaliation Claims• In order to state a prima facie retaliation

cause of action, a plaintiff need merely to

1. Show that they were engaged in protected activity

2. That they suffered a materially adverse action

3. That there is a causal relationship between the two.

Retaliation Claims

• In this instance, the Plaintiff made a complaint of sexual harassment. She was subsequently terminated. She alleged facts indicating that she was fired in retaliation for having complained about the sexual harassment.

• As such, it was error on the part of District Court to have dismissed this claim at the Summary Judgment stage.

Retaliation Claims

• IMPORTANT TAKE-AWAYS:

• If the complainant has a good-faith basis to believe that that discrimination has occurred, and then complains about the conduct, that complainant is protected, even if ultimately shown that there was no discrimination.

Retaliation Claims

• IMPORTANT TAKE-AWAYS:

• In other words, a good-faith belief regarding unlawful conduct as opposed to actual unlawful conduct is sufficient to give protection to a complainant and an employer cannot take adverse action against a complaining party, even if they are wrong.

Retaliation Claims

• IMPORTANT TAKE-AWAYS:

• This becomes particularly difficult when an employer is ready to take some form of adverse action (e.g. based on poor performance) and the employer files a discrimination complaint because they see the action coming.

Retaliation Claims

• IMPORTANT TAKE-AWAYS:

• If you find yourself in this situation, take a step back, and call your attorney.

Thank You!