OFCCP Week In Review: June 2021 #3

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:

  • Paycheck Fairness Act Fails in Senate…Again
  • Federal Agencies Plan to Return to Work at Their Brick & Mortar Offices
  • Mail Ballots Deemed Objectionable In Board Elections
  • HERE IT COMES: OFCCP Plans to Modify Its PDN And Religious Exemption Rules

Tuesday, June 8, 2021: Paycheck Fairness Act Fails in Senate…Again

As predicted, the Paycheck Fairness Act failed to pass the U.S. Senate. (Not even close: needed 11 more votes to invoke cloture and stop any filibuster of the bill). Cloture on the motion to proceed failed by Yea-Nay Vote. 49 – 50. [Kirsten Gillibrand (D-NY) did not vote.] It is surprising Senate Majority Leader Chuck Schumer (D-NY) brought the Act up for a vote since it was doomed to fail with absolutely no way forward to passage. [John Fox will discuss why in his Plenary Presentation at the National Industrial Liaison Group (NILG) conference in Nashville in early August].

What Does This Mean?

The Bill is dead again due to a failed vote to invoke cloture. Cloture is required to stop a Senate filibuster, or the threat of a filibuster, and takes a 3/5ths vote (i.e., 60% of 100 United States Senators = 60 votes needed to invoke cloture, stop the filibuster and bring the bill on for a substantive vote of the Senate) pursuant to Senate Rule XXII. In practice, most bills require a 60% vote to invoke cloture and allow a bill to move forward to a full U.S. Senate Floor vote. Senior Executive Branch jobs subject to the “advice and consent” of the U.S. Senate and spending (budget), revenue (tax) and federal debt limit bills require only a 51-vote majority to pass.

Getting Up to Speed

See a detailed discussion of the contents of the Act in our January 28, 2021, WIR story titled “The Paycheck Fairness Act Surfaces…Again.

Thursday, June 10, 2021: Federal Agencies Plan to Return to Work at Their Brick & Mortar Offices

In a 20-page Memo to the Executive Heads of Federal Agencies, the Office of Management and Budget (OMB) mapped out its plans for “re-entry” into the workspaces of both civilian employees and employees of federal government contractors working in federal buildings and on federal lands.

All Federal agencies, including the Office of Federal Contract Compliance Programs (OFCCP), must complete a written plan by June 18, 2021 and submit it to OMB for review and adoption before re-entry to federal offices begins in earnest not later than July 19, 2021. These plans must include how and when to return an increased number of employees and contractors to their office locations along with the intended post-re-entry personnel policies and work environment.

In its Memorandum, among many other things, OMB strongly encouraged all federal civilian employees to get COVID-19 vaccinations, but will not require vaccination. To this end, federal employees will receive paid time off to be vaccinated against the COVID-19 virus and manage any side effects. At present, vaccination “should generally not be a precondition for employees or contractors at agencies to work in-person in Federal buildings, on Federal lands, and in other settings as required by their job duties.” In addition, Federal employees and contractors may voluntarily share information about their vaccination status, but agencies “should not require Federal employees or contractors to disclose such information.”

OMB’s Memo also invites each agency to consider plans for “telework,” in light of the agency’s experience during the COVID-19 pandemic.

Friday, June 11, 2021: Mail Ballots Deemed Objectionable In Board Elections

To protect the integrity of Board elections, the National Labor Relations Board (“Board”) unanimously held that even the mere solicitation of a party offering to file an employee’s mail ballot constitutes objectionable conduct in a Board election and can cause the Board to set aside an election. Board union-election Rules permit only the employee voting on unionization and the Board agent to handle employee election ballots. In the case before the Board, it decided to lay down a broad general rule that the Board may exercise its discretion to set aside any election where the evidence shows that ballot solicitation affected a determinative number of votes. Dissenting in part, Member Emanuel favored setting aside every election in which a party is shown to have solicited mail ballots, irrespective of the number of voters affected.

Applying the new rule retroactively, the Board declined to exercise its discretion to set aside the election in the case before it involving Professional Transportation, Inc. 370 NLRB No. 132 (2021). The Board found that although the company may be able to prove the union (the United Electrical, Radio, and Machine Workers of America (U.E.), Local 1077) solicited the mail ballot of at least one employee, the company would at most be able to establish that the solicitations affected only two voters. Therefore, the solicitation could not have affected the election’s outcome, as the Union prevailed by at least ten votes.

Friday, June 11, 2021: HERE IT COMES: OFCCP Plans to Modify Its PDN And Religious Exemption Rules

The Biden Administration released its Spring 2021 Unified Agenda of Regulatory and Deregulatory Actions. President Clinton’s 1993 Executive Order 12866 established the modern requirement for such publicly announced agendas of upcoming regulatory actions at each federal agency.

The U.S. Department of Labor announced a series of anticipated regulatory actions, including increasing the minimum wage for Federal Contractors. The Office of Federal Contract Compliance Programs (OFCCP) has three items in the “Proposed Rule Stage” and one in “Long-term Actions.”

Proposed Rule Stage

  1. Rescission of Certain Provisions Related to the Religious Exemption for Federal Contractors and Subcontractors (1250-AA09)
    • OFCCP states that this proposal would rescind the December 8, 2020 Final Rule, “Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption.” OFCCP stated its intention to remove specific definitions the Trump OFCCP had included in 41 CFR 60-1.3 related to the religious exemption and 41 CFR 60-1.5(e) and (f). While somewhat confusing, OFCCP’s summary states that the rescission will “ensure that the religious exemption contained in section 204(c) of Executive Order 11246 is consistent with nondiscrimination principles of Title VII of the Civil Rights Act of 1964, as amended,” even though OFCCP is not stating the intent of the President to amend EO 11246. Rather, OFCCP is foreshadowing its intent to only publish a new Rule and thus the religious exemption in Executive Order 11246 would not change.
    • The date listed for OFCCP to publish its Proposed Rule is May of this year. Since that deadline has now passed, OFCCP’s publication of this proposed Rule may be considered “imminent:” any time now. Expect vitriolic public comments from all sides to go on file at OFCCP. Donnybrook on the horizon.
  1. Freedom of Information Act Regulation Updates to 41 CFR Part 60-40 (1250-AA12)
    • The proposal will bring OFCCP’s Freedom of Information Act regulations in line with relevant legal authorities and precedential case law.
    • While OFCCP’s summary of this proposal is vague, nothing controversial is expected here.
  1. Modification of Procedures to Resolve Potential Employment Discrimination (1250-AA14) – the “PDN Rule” (the Pre-Determination Rule) from November 2020
    • OFCCP proclaims that the proposal “will promote effective enforcement through OFCCP’s regulatory procedures.” OFCCP’s target date for publication of its proposed Rule is September 2021.
    • While OFCCP’s summary of this proposal is also vague, pundits have reported they expect OFCCP to seek to reverse the transparency initiatives of the Trump OFCCP. Expect a lively contractor reaction to OFCCP’s eventual Proposed Rule.

Long-term Actions

  1. Modernizing Affirmative Action Programs, Recordkeeping, and Other Components of the Executive Order 11246 Supply and Service Obligations for Federal Contractors and Subcontractors (1250-AA13)
    • The proposal will bring “changes to modernize its Executive Order 11246 compliance program for federal supply and service contractors and subcontractors, including but not limited to recordkeeping and affirmative action program obligations. In addition, the proposal will consider modifications in light of Executive Order 13988, Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.”
    • OFCCP has provided no other details or time-frame at this time. This Proposed OFCCP Rule, whatever it entails, appears to be on track for publication in the next Semi-Annual (“Fall”) Regulatory Agenda…to occur in FY 2022.

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