OFCCP Week In Review: August 2021

DirectEmployers Association

DirectEmployers Association

The DE OFCCP Week in Review (WIR) is a simple, fast and direct summary of relevant happenings in the OFCCP regulatory environment, authored by experts John C. Fox, Candee Chambers and Jennifer Polcer. In today’s edition, they discuss:
  • The Americans With Disabilities Act Celebrates 31 Years!
  • An Understanding of Long COVID
  • The First Black Female Confirmed to the National Labor Relations Board
  • Democrat Majority Coming to the NLRB Board
  • Start Checking Your List – December Will be Here Soon!
  • Vaccine Verification for Federal Contractors?
  • DOL Publishes Final Rule Rescinding Trump Administration Joint Employer Rule Under the FLSA
  • Updated Interactive Labor Force Participation Maps

Monday, July 26, 2021: The Americans With Disabilities Act Celebrates 31 Years!

“The history of the ADA did not begin on July 26, 1990, at the signing ceremony at the White House. It did not begin in 1988 when the first ADA was introduced in Congress. The ADA story began a long time ago in cities and towns throughout the United States when people with disabilities began to challenge societal barriers that excluded them from their communities and when parents of children with disabilities began to fight against the exclusion and segregation of their children. It began with the establishment of local groups to advocate for the rights of people with disabilities. It began with the establishment of the independent living movement which challenged the notion that people with disabilities needed to be institutionalized, and which fought for and provided services for people with disabilities to live in the community.”

~ The Disability Rights Education & Defense Fund

The Office of Federal Contract Compliance Programs (OFCCP) honored the milestone of the 31st anniversary of the Americans with Disabilities Act (ADA) with a spotlight on its resources to support disability rights and education. These include:

  • Reasonable Accommodations Pocket Card– OFCCP intends this four-step pocket card, available in English and Spanish, to assist applicants, employees, and other interested parties understand the process for requesting a reasonable accommodation.
  • Disability Rights Fact Sheet – This two-page fact sheet addresses 21 disability-related questions. It covers multiple areas, including the definition of a disability, the protections OFCCP enforces, and discussion of reasonable accommodations.
  • Disability Inclusion Starts With You – This 50-second you-tube video explains the benefits of voluntary self-identification. Contractors may post this video on their Intranet or company website to educate employees and job applicants as to why they are asked to self-identify.

Monday, July 26, 2021: An Understanding of Long COVID

The U.S. Department of Justice, in collaboration with the U.S. Department of Health and Human Services, in recognition of the new challenges we face from COVID-19, published guidance that explains when “long COVID” may be a disability under the ADA, Section 504 of the Rehabilitation Act, and Section 1557 of the Affordable Care Act. See our previous story, “Employer Resources for Individuals with Post-COVID Conditions, for more information on “long COVID.”

Long COVID Webinar

The White House Office of Public Engagement, in conjunction with agency partners from HHS, Education, and Labor, invites the public to a Conversation about Long COVID. The webinar will review the published guidance, provide information on how to access supports, and answer questions from the audience.

Event Details

Monday, August 2, 2021
4:00 to 4:45 pm EST
Register Online

See Also

Fact Sheet: Biden-Harris Administration Marks Anniversary of Americans with Disabilities Act and Announces Resources to Support Individuals with Long COVID.

Wednesday, July 28, 2021: The First Black Female Confirmed to the National Labor Relations Board

The U.S. Senate confirmed (52-47) Gwynne Wilcox to a seat on the National Labor Relations Board (NLRB). Ms. Wilcox, currently a Senior Partner at the union-side Labor & Employment firm of Levy Ratner in New York, is the first Black woman to serve on the Board. See our previous story, “NLRB Closer to a Full and More Diverse Board,” for more details.

DirectEmployers Nomination Tracket: Senate Confirmed Nomination

Because Ms. Wilcox is stepping in to complete the existing term of former Member Pearce (vacated in 2018), Member Williams’ term will not be for a full five-year term, but rather will expire in only two years…on August 27, 2023.

Wednesday, July 28, 2021: Democrat Majority Coming to the NLRB Board

Democrat David Prouty secured (53-46) the final (soon to be vacated) seat on the National Labor Relations Board. Mr. Prouty will take the seat of Republican William Emanuel, whose term expires later this month on August 27, 2021. Because he is replacing a Board Member whose term will have expired, Mr. Prouty will step into a full five-year term. The Senate’s act to confirm Mr. Prouty early, at a time that Senate Majority Leader Chuck Schumer (D-NY) is consciously holding back many of the President’s nominations or slowing their timing as Senate Floor voting time continues to be very precious, is a sign to unions of the importance the Biden Administration attributes to them.

Mr. Prouty is currently the General Counsel of Service Employee International Union (SEIU) Local 32BJ. He served as General Counsel of the Major League Baseball Players Association (MLBPA) from 2013 – 2017 and as Chief Labor Counsel of the MLBPA from 2008 – 2013. Mr. Prouty also served as General Counsel of the union UNITE and UNITE HERE after its merger with HERE.

DirectEmployers Nomination Tracket: Senate Confirmed Nomination

The make-up of the Board is now stable through at least December 16, 2022 when Republican Member Ring’s term expires.

Name Party Term Expires
William J. Emanuel Republican 08/27/2021
John F. Ring Republican 12/16/2022
Gwynne Wilcox Democrat 08/27/2023
Lauren M. McFerran, Chairman Democrat 12/16/2024
Marvin E. Kaplan Republican 08/27/2025

Wednesday, July 28, 2021: Start Checking Your List – December Will be Here Soon!

The U.S. Department of Labor’s Veterans’ Employment and Training Service Agency (V.E.T.S.) wants to help employers prepare to win the 2022 HIRE Vets Medallion Award.

The deadline to meet the criteria for an award in 2022 is December 31, 2021. Criteria vary by company size but assess, among other things, the percentage of new hires who are veterans and the company’s veteran retention rate.

Employers may answer a few questions about their business to receive application information tailored for its size and industry type.

Thursday, July 29, 2021: Vaccine Verification for Federal Contractors?

From the East Room of the White House, President Biden addressed the press, “laying out the next steps in our effort to get more Americans vaccinated and combat the spread of the Delta Variant.”

These next steps include providing more incentives to encourage unvaccinated Americans to get vaccinated.

“Today, I’m announcing that we’re taking this [incentives] a step further. The federal government will now reimburse those employers to give their staffs — who give their staffs time off not only to get themselves vaccinated, but also to get their family members vaccinated.”

He went on to say,

“But in addition to providing incentives to encourage vaccination, it’s time to impose requirements on key groups to make sure they’re vaccinated.”

These groups include doctors, nurses, and other healthcare workers who provide medical care for veterans.

For federal workers,

“…every federal government employee will be asked to attest to their vaccination status. Anyone who does not attest or is not vaccinated will be required to mask no matter where they work; test one or two times a week to see if they have a — they have acquired COVID; socially distance; and generally will not be allowed to travel for work.”

Of particular interest to our readers is his follow-up statement,

“Likewise, today, I’m directing my Administration to take steps to apply similar standards to all federal contractors. If you want to do business with the federal government, get your workers vaccinated.”

In the Fact Sheet released before the press conference, “the President will announce that to help protect workers, and their communities, every federal government employee and onsite (emphasis added) contractor will be asked to attest to their vaccination status. Anyone who does not attest to being fully vaccinated will be required to wear a mask on the job no matter their geographic location, physically distance from all other employees and visitors, comply with a weekly or twice-weekly screening testing requirement, and be subject to restrictions on official travel.” The fact sheet goes on to say, “These rules should not only apply to federal workers and onsite contractors (emphasis added). President Biden is directing his team to take steps to apply similar standards (emphasis added) to all federal contractors. The Administration will encourage employers across the private sector to follow this strong model.”

At this time, no federal Executive Branch agencies have yet published any COVID-19 related proposed Rules aimed at federal contractors, either suggesting vaccinations or requiring masks. The DE WIR team will keep a watchful eye open to sleuth out any proposed federal agency Rules which may emerge seeking to impose vaccinations, masks or “similar standards” that may affect federal contractors.

Friday, July 30, 2021: DOL Publishes Final Rule Rescinding Trump Administration Joint Employer Rule Under the FLSA

The U.S. Department of Labor Wage and Hour Division (WHD) published the Biden Administration’s Final Rule rescinding the Trump Administration Rule which had established when an entity is a “joint employer” liable for violations of the Fair Labor Standards Act (“FLSA”). The DE WIR had warned the business community about the anticipated publication of the Biden Rule following notice that the WHD’s proposed Final Rule had cleared White House review on July 13th.

The Biden Rule rescinded the Trump Rule citing the following primary rationales:

  • The Trump Rule’s alleged adoption of the Bonnette legal test for “Joint Employer” status actually deviated from the language in Bonnette by: (1) not considering whether the potential joint employer had “the power” to hire and fire; (2) adding the phrase “to a substantial degree” in ascertaining whether the potential joint employer supervises and controls the work schedules or conditions of employment; (3) adding limitations not included in Bonnette, and (4) relying upon the Bonnette factors when the court held the factors were “not etched in stone” and “should not be blindly applied”;
  • The Trump Rule specifically excluded any consideration of the employee’s economic dependence on the potential joint employer; and
  • The U.S. District Court for the Southern District of New York vacated the Trump Rule’s joint employer standard for vertical joint employer liability. The Court found the Trump Rule flawed “in just about every respect” because it conflicted with the FLSA and thus violated the Administrative Procedure Act. See New York, et al. v. Scalia, 490 F. Supp.3d 748 (S.D.N.Y. 2020). (The Scalia case was a challenge to the Trump Joint Employer Final Rule which 18 “blue” state Attorneys General had brought as soon as it went Final. The District Court’s decision is currently on appeal).

Though the Department contends the Biden Administration’s Rule may moot the states’ challenge to the Trump Rule, and thus make any resolution of the appeal unnecessary, several business organizations have intervened in the case in an attempt to obtain a ruling from the United States Court of Appeals for the Second Circuit enforcing the prior Trump Rule.

As a result of the Biden Final Rescission Rule, the DOL has now withdrawn in its entirety 29 C.F.R. § 791 (previously titled Joint Employer Status under the Fair Labor Standards Act).

Significantly, the Final Biden Rule did not propose new regulatory guidance to replace the prior Trump Joint Employer standard. Rather, going forward, the WHD intends to enforce the standard the Obama Administration previously enforced. The Obama WHD had interpretated the FLSA Joint Employer standard to expand the entities that would bear responsibility for labor and employment law violations. A large point of departure with employers was the Obama WHD’s point of view that other businesses could be an “employer” to a worker based on reserved, but unexercised, “right to control” authority over employees of the other entity. The Obama WHD would thus look to contract language between the worker’s (host) employer and the other businesses (a subcontractor or vendor, for example) which could potentially be a joint employer to find language, if it existed, reserving the host employer’s right to control certain aspects of the subcontractor’s work.

Another flashpoint of contention between employers and the Obama WHD was the Division’s expansive view that subcontractor and vendor employees were “economically dependent” on the host employer if the worker obtained his or her pay, as a practical matter, exclusively from vendor contracts with the host employer.

What To Do Going Forward

Thus, as of now, businesses should be aware that defense of USDOL WHD audits or other investigations of Joint Employer status now requires analysis of any “right of control” language contained in any vendor agreement with a host company. Businesses should also keep an eye on the pending appeal in New York v. Scalia should the Second Circuit Court of Appeals overturn the prior District Court holding and revive the Trump Joint Employer Rule, in whole or in part.

Story contributed by Jay Wang of Fox, Wang & Morgan.

Friday, July 30, 2021: Updated Interactive Labor Force Participation Maps

The USDOL Women’s Bureau posted updated, interactive maps on the labor force participation rates of women (and men if you so select) in the states and counties (look upper left on the maps once open to select the geographic footprint of interest).  Check out these two maps:

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