Predictions from our attorneys in the practice areas that affect employers.
It's spring, and a young person's fancy turns to . . .
Here's a summary of what you may have missed over the holiday break.
A preview of coming attractions!
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.”
Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act).
Continue Reading
Subscribe
Contributors
- Susan Bassford Wilson
- William A. "Zan" Blue, Jr.
- Patricia-Anne Brownback
- Kenneth P. Carlson, Jr.
- James M. Coleman
- Cara Yates Crotty
- Thomas M. Eden, III
- Deborah Hembree
- Steven B. Katz
- Ellen C. Kearns
- F. Damon Kitchen
- Angelique Groza Lyons
- John E. MacDonald
- Marcia McShane
- Robert L. Ortbals Jr.
- Alyssa K. Peters
- Sarah M. Phaff
- David P. Phippen
- Ray Poole
- William K. Principe
- Angela L. Rapko
- Katie M. Rhoten
- Paul Ryan
- Robin E. Shea
- Kristine Marie Sims
- David L. Smith
- Stephen Stecker
- Jill S. Stricklin
- Jack R. Wallace
- Jonathan W. Yarbrough
Archives
- January 2021
- December 2020
- November 2020
- October 2020
- September 2020
- August 2020
- July 2020
- June 2020
- May 2020
- April 2020
- March 2020
- February 2020
- January 2020
- December 2019
- November 2019
- October 2019
- September 2019
- August 2019
- July 2019
- June 2019
- May 2019
- April 2019
- March 2019
- February 2019
- January 2019
- December 2018
- November 2018
- October 2018
- September 2018
- August 2018
- July 2018
- June 2018
- May 2018
- April 2018
- March 2018
- February 2018
- January 2018
- December 2017
- November 2017
- October 2017
- September 2017
- August 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- March 2016
- February 2016
- January 2016
- December 2015
- November 2015
- October 2015
- September 2015
- August 2015
- July 2015
- June 2015
- May 2015
- April 2015
- March 2015
- February 2015
- January 2015
- December 2014
- November 2014
- October 2014
- September 2014
- August 2014
- July 2014
- June 2014
- May 2014
- April 2014
- March 2014
- February 2014
- January 2014
- December 2013
- November 2013
- October 2013
- September 2013
- August 2013
- July 2013
- June 2013
- May 2013
- April 2013
- March 2013
- February 2013
- January 2013
- December 2012
- November 2012
- October 2012
- September 2012
- August 2012
- July 2012
- June 2012
- May 2012
- April 2012
- March 2012
- February 2012
- January 2012
- December 2011
- November 2011
- October 2011
- September 2011
- August 2011
- July 2011
- June 2011
- May 2011
- April 2011
- March 2011
- February 2011
- January 2011
- December 2010
- November 2010
- October 2010