8.6.09

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“Feisty, Relentless” Legal Aid Activist Nominated to Head Agency

Patricia A. Shiu has been appointed Deputy Assistant Secretary of the U.S. Department of Labor to head the Office of Federal Contract Compliance Programs. She is currently Vice President for Programs at the Legal Aid Society-Employment Law Center in San Francisco, where she has worked for 25 years. Shiu has zealously advocated for women’s rights in the workplace and helped draft legislation that led to the enactment of California’s Family Rights Act, which provides for leave rights similar to those in the federal Family and Medical Leave Act, and the more-recent California Paid Family Leave Act.

In 2005, Shiu received the Joe Morozumi Lifetime Achievement Award of the Asian-American Bar Association of the Greater [San Francisco] Bay Area for her “remarkable career [devoted to] ensuring that poor women, particularly immigrants, women of color, single mothers, and those with disabilities are treated legally, fairly, and with dignity.” (Morozumi, who died in 1996, advocated for reparations for Japanese-American interns, and he also represented protestors and conscientious objectors during the Vietnam War, as well as political activists.)

In 2002, Shiu received the “Woman Warrior Award” of the Pacific Asian American Women Bay Area Coalition, which recognized her as “one of the feistiest and most relentless Asian-American litigators.” She is also a 2002 recipient of the California Women’s Law Center Abby J. Liebman Pursuit of Justice Award, named for one of the directors of the law center.

Because the Department of Labor is eliminating the Employment Standards Administration, which will raise the OFCCP a tier within the DOL structure and make the head of the OFCCP an Assistant Secretary, it is unclear whether Shiu will then need to be confirmed by the Senate. What is clear is that employers can expect a more aggressive OFCCP under Shiu’s leadership.

DOL Issues Proposed Rule on Federal Rights Poster and Contract Clause

This week, the Department of Labor issued proposed regulations for implementing President Obama’s January 30, 2009, Executive Order, which requires that federal contractors post notices informing employees of their rights under federal labor laws.

The proposed poster lists a variety of employee rights, including the right to form or join a union and to discuss terms and conditions of employment with co-workers, and advises employees how to lodge a complaint if they believe their rights have been violated. If approved, the proposed poster will be available from a variety of sources, including the OFCCP and the Office of Labor-Management Standards website. Contractors who normally post employee notices electronically would also be required to post this notice electronically.

The proposed regulations also set forth language, which – if adopted – will have to be included in all government contracts and subcontracts valued at more than $100,000. Contractors will not be allowed to incorporate the language by reference: the language must be quoted verbatim in the contract. The proposed contract clause is long, and includes the language to be posted in contractors’ facilities.

Under this proposed rule, the OFCCP is authorized to conduct compliance reviews to determine contractors’ compliance with both the poster requirement and inclusion of the contract language in covered subcontracts.

Interested parties are invited to submit comments on the proposed regulations no later than September 2, 2009. Constangy will continue to keep you informed of any developments on this topic, including the adoption of any Final Rule.

Recordkeeping, Hiring, Stimulus Recipients Are Getting OFCCP’s Attention

Constangy attended the 27th Annual Industry Liaison Group National Conference in Atlanta last week. This conference typically allows federal contractors to interact with top OFCCP and EEOC officials and share information in a non-adversarial setting.

Regional Directors attending the conference this year noted that recordkeeping violations continue to be the predominant compliance problem and that hiring discrimination accounts for the vast majority of their monetary recoveries. The OFCCP is now concentrating on educating – and auditing – construction contractors who receive federal stimulus money.

In response to a question, the Regional Directors also noted that whites and males are protected by Executive Order 11246 and may, in some cases, become the protected class if other groups are statistically the “most favored.” However, the Regional Directors agreed that females and minority groups are still most often the focus of compliance reviews.

This year, due to the change in administrations, both the OFCCP and the EEOC were without agency heads and were therefore unable to relay the high-level agency direction generally provided at the conference.

Don't forget! Constangy's Affirmative Action practice group presents a Quarterly Webinar series discussing recent AA topics, as well as their standard webinar programs. These webinars are presented to organizations individually for a flat rate regardless of number of attendees. To schedule one of our webinars for your organization, contact Cara Crotty or the Constangy attorney of your choice.

Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A “Go To” Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by publications such as Chambers USA, Super Lawyers, and Top One Hundred Labor Attorneys in the United States. More than 100 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offi ces are located in Georgia, Florida, South Carolina, North Carolina, Tennessee, Alabama, Virginia, Massachusetts, Missouri, Illinois, Wisconsin, Texas and California. For more information, visit www.constangy.com.

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