Posts in Affirmative Action.

What are you grateful for this year? Here is my list.

Well, almost! Our new blog, Affirmative Action Edition, will go live on Friday.

On with the show!

The Affirmative Action and OFCCP Compliance Practice Group will be launching its own new blog, Affirmative Action Edition, later this month. During the brief intermission, get yourself a treat!

NOTE FROM ROBIN: I have bad news and good news. The bad news is that this is the last post from the Affirmative Action and OFCCP Compliance Practice Group that will appear on Employment & Labor Insider. The good news is that the group is starting its own blog, Affirmative Action Edition, in late October. We will let you know as soon as it’s up and running. Thanks very much to Cara Crotty and her team for the excellent guest posts they have contributed over the past year. We will miss you, but we can’t wait to subscribe to and read your new blog!

On September 15, the U.S. Department of Labor announced the 2018 minimum wage rates for covered federal contractors and subcontractors. Beginning January 1, 2018, federal contractors covered by these requirements will be required to pay a minimum wage of $10.35 an hour. The minimum cash wage for tipped workers will increase to $7.25 an hour.

The current minimum wage for federal contractors is $10.20 an hour, and the current minimum cash wage for tipped workers is $6.80 an hour.

These increases are required by an Executive Order issued by President Obama in February 2014, which mandates that the DOL raise the hourly minimum wage paid by certain federal contractors every year based on inflation. The Executive Order also specifies that the minimum cash wage for tipped workers must increase by 95 cents per year until it reaches 70 percent of the minimum wage paid to other hourly workers under the Executive Order.  This requirement was met with the 2017 wage increase.

On the heels of the exemption for Hurricane Harvey contractors, and given the additional widespread destruction caused by Hurricane Irma, the federal government has extended a deadline affecting federal contractors and subcontractors.

VETS-4212

The VETS-4212 report, which contractors must file annually between August 1 and September 30, has been extended this year for all contractors, regardless of location.  The Veterans’ Employment and Training Service posted on its website that contractors and subcontractors who file their VETS-4212 reports by November 15 will be considered timely.  This one-time, 45-day extension is due to the needs of those affected by the recent hurricanes.

HURRICANE IRMA NATIONAL INTEREST EXEMPTION FOR NEW CONTRACTS

As it did for Hurricane Harvey contractors previously, on September 7, the Office of Federal Contract Compliance Programs issued a another National Interest Exemption Memorandum providing a three-month exemption on preparing written affirmative action plans for a very specific group of contractors and subcontractors.

According to the FAQs, the exemption applies only to contractors who have signed or will sign a new supply and service or construction contract between September 1 and December 1, 2017, solely for the “specific purpose of providing Hurricane Irma relief” and who do not otherwise have to comply with the regulations.

Does this apply to everyone who has a contract to provide hurricane relief? 

No. The exemption applies only to those companies that become covered contractors by virtue of a new contract aimed solely at providing Irma relief.

Who is not covered?

Any contractor that is required to comply with the regulations based on a non-Irma relief contract (whether that contract be old or new).

Laboratory Corporation of America has agreed to pay approximately $200,000 to resolve a matter with Office of Federal Contract Compliance Programs. According to the Conciliation Agreement between the parties, the OFCCP

 found statistically significant adverse impact against females in the selection process for Lab Assistant and that Asians were paid less than similarly situated non-Asian White employees in the Lab Assistant position.

The alleged hiring discrimination resulted in a shortfall of only two females, and the amount of statistical significance was redacted from the Conciliation Agreement posted online by the OFCCP.  To resolve this claim, LabCorp will distribute more than $51,000 to the affected class of female applicants. In addition, the company agreed to revise its selection process, “including the criteria used in each step of the hiring process, any application screens, interviews, tests, credit checks, review of criminal history, reference checks, testing, or other selection procedure;” to review and revise the job description for Lab Assistant “to minimize the potential for gender stereotyping”; and to list the minimum requirements for the Lab Assistant position on all job postings.

To resolve the allegations of compensation discrimination, LabCorp will pay almost $150,000 to Asian Lab Assistants who were allegedly paid less than their White counterparts, even after controlling for legitimate, non-discriminatory factors. In addition, the company must conduct its own regression analysis in six months, and if it reveals statistically significant adverse impact against Asians, LabCorp has agreed to increase their salaries.

Of course, LabCorp’s settlement with the agency is not an admission of liability or wrongdoing.

Based on a recent Senate appropriations bill, it appears that the Trump Administration’s plan to merge the Equal Employment Opportunity Commission with the Office of Federal Contract Compliance Programs has stalled. The

 Senate bill would fund the OFCCP for Fiscal Year 2018 at approximately $103.5 million, which is more than the House’s proposed funding of $94.5 million. Congress would not be proposing funds for the agency if it planned to eliminate it.

This legislative action follows a letter from Acting OFCCP Director Thomas Dowd to the Institute for Workplace Equality on August 24, “acknowledg[ing] that the consolidation proposal includes several challenging transition issues.” Although Mr. Dowd did not expressly state that merger plans were on ice, he noted that any consolidation was unlikely to occur until Fiscal Year 2019 and that the agency would focus on “contemporaneous opportunities to improve effectiveness and efficiency.”

Perhaps Congress is listening to its constituents. The proposed merger was opposed by both civil rights advocacy groups and employer organizations, and my colleague Angelique Lyons cogently summarized the pros and cons here.

We will continue to monitor this issue for further developments.

Image Credit: From flickr, Creative Commons license, by frankie leon.

Experts have estimated that it may cost as much as $180 billion to repair the damage done by Hurricane Harvey. With so much rebuilding to be done, the Office of Federal Contract Compliance Programs is temporarily waiving certain equal employment opportunity requirements to expedite Hurricane Harvey relief efforts. The deputy director has the authority to waive any part of the EEO clause in a specific contract or group of contracts “when he deems that special circumstances in the national interest so require.”  (Scroll down to section (b)(1).)

On August 31, the Deputy Director of the OFCCP issued a memorandumtemporarily exempting contractors providing Hurricane Harvey relief assistance from developing written affirmative action programs. The exemption applies to the affirmative action programs required by Executive Order 11246, Section 503 of the Rehabilitation Act, and Section 4212 of the Vietnam Era Veterans’ Readjustment Assistance Act. According to the memorandum, the EEO clauses in affected contracts may be modified to specify that “the contractor will not be obligated to develop the written affirmative action program required under the regulations implementing [EO11246, VEVRAA, Section 503 of the Rehabilitation Act of 1973, as amended].”

Although federal contractors providing Hurricane Harvey relief assistance will not have to develop written affirmative action programs, they will still be required to comply with other EEO requirements pertaining to record keeping, record retention, employment listings, and posting of the “Equal Opportunity is the Law” notice.

The affirmative action program exemption will last three months, but it may be extended “should special circumstances in the national interest so require.”

Louise Davies is an Affirmative Action Paralegal in Constangy’s Winston-Salem, North Carolina, office. For more than 15 years, she has helped employers develop affirmative action plans and respond to audits and on-site investigations by the Office of Federal Contract Compliance Programs. She also conducts diversity training for employers. Louise is a graduate of Wesleyan College in Macon, Georgia.

In February 2016, the Office of Federal Contract Compliance Programs filed an administrative complaint against B&H Foto, the largest non-chain photo and video equipment store in the United States. The Complaint alleged that B&H had discriminated against female, black, and Asian jobseekers by hiring only Hispanic men for entry-level positions.  The OFCCP also alleged that Hispanic employees were harassed, paid less than similarly situated workers, and denied promotions because of their ethnicity.

The agency and the company recently entered into a consent decree, in which B&H agreed to pay $3.22 million in back wages to more than 1,300 affected class members. The company has also agreed to hire a workplace consultant to address its employment practices and workplace conduct. In addition, the company must provide its managers with annual training on EEO principles and on workplace harassment.

By agreeing to the consent decree, the company did not admit any guilt or wrongdoing. The company released a statement denying all of the allegations, but recognizing that litigation would be costly and resolution would allow it to return to business “as usual” with the government.

NOTE FROM ROBIN: Last night, I posted briefly that the EEOC’s requirement, starting next March 31, that employers include compensation data in their annual EEO-1 reports had been suspended. We now have more information, and I have drafted a client bulletin that will go out this afternoon. Because the blog subscription and bulletin subscription lists are not identical, I’m ...

Robin Shea has more than 20 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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