As we continue to see issues of pay equity arise on a daily basis, Jackson Lewis is pleased to announce the launch of its Pay Equity Advisor blog.  The blog was created to provide updates and practical strategies to employers facing hot button issues surrounding compensation and pay equity as the call for pay transparency and action to close the pay gap make headlines and state and local fair pay initiatives continue to rise.  You can access the Jackson Lewis Pay Equity Advisor blog through our website or directly at www.payequityadvisor.com.

The Pay Equity Advisor blog is brought to you by our Affirmative Action Compliance and OFCCP Defense and Pay Equity practice groups. Joy Chin, Jackson Lewis Principal and Co-Chair of the Firm’s Pay Equity Resource Group, serves as blog editor. To subscribe to the Pay Equity Advisor blog and receive regular updates, click here and enter your email address.

Pursuant to President Obama’s pay transparency executive order (Executive Order 13665), which amended Executive Order 11246, federal contractors must incorporate the OFCCP-prescribed Pay Transparency Nondiscrimination Provision (PTNP) in employee handbooks (or implement a stand-alone policy) and post it for applicants and employees.

 OFCCP recently revised the required provision to include a cite to the regulation (41 C.F.R. 60-1.35(c) at the conclusion of the notice. Contractors should work to update their notices as soon as reasonably practicable. 

Ensuring you have the proper policy implemented and posted is important in light of the recent round of CSALs issued by OFCCP as this will likely be an item the Agency will be checking compliance with during an audit.

In addition to issues involving the environment, immigration, and national security, the Trump Administration has been in the headlines recently for its stance on matters impacting the LGBT community.

As we reported in a late-January, after close deliberation with daughter Ivanka, and son-in-law Jared Kushner, President Trump expressed support for LGBT rights and vowed to leave intact President Obama’s LGBT Executive Order protecting rights for individuals on the basis gender identity and sexual orientation. At the time, this move was seen by many as a sign that President Trump would generally support the rights of the LGBT community.

However, recent events have sent mixed messages on the subject.

This week, the Department of Education and the Department of Justice under President Trump rescinded the Obama Administration’s May 2016 “Dear Colleague Letter” directing schools to “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.”  That Letter offered guidance on a range of LGBT issues, including access to restrooms, locker rooms, and similar facilities, equal participation in educational programs and activities, and recordkeeping and privacy.

Additionally, it was reported earlier this week that OFCCP has filed an administrative law complaint alleging denial of access in connection with President Obama’s LGBT Executive Order.  To clarify, this complaint was filed by the previous administration under then-Solicitor Patricia Smith.  Regardless, the case is important as it is the first of its kind to involve enforcement of the LGBT Executive Order and is now in the hands of the recently appointed acting DOL Solicitor Nicholas Geale.

These two actions above are not, however, likely to be the last word on the topic. During the campaign, Trump stated he would support the controversial First Amendment Defense Act (FADA).  If passed and signed by the President, FADA would essentially prevent the federal government from taking adverse action against people, businesses or institutions which discriminate based on sexual orientation according to a belief that “marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.”  His support of the FADA would be contrary to the support he provided to President Obama’s executive order yet would be consistent with the actions of the Departments of Education and Justice this week.  Once again, we will have to stay tuned to see what happens next.

 

As a follow up to our post yesterday, there is additional information available regarding OFCCP’s recent mailing out of courtesy scheduling announcement letters.

After a hiatus for the past few years, OFCCP has officially confirmed it has once again sent out CSALs. dated February 17th.  Here are some additional details regarding this wave of notices:

  • OFCCP is characterizing this as the “first” release of CSALs
    • OFCCP has not confirmed if and when another round will go out
  • Approximately 800 notices were mailed
  • 375 distinct companies were noticed
    • This means some companies will receive notices for multiple establishments
  • The companies were from 29 different industries based on reported NAICS codes
  • 30 Corporate Management Compliance Evaluations (CMCEs) were included in the notices

It’s important to keep in mind that a CSAL does not commence an audit (only a scheduling letter can do that) and does not guarantee an audit.  Moreover, OFCCP can audit locations not listed on a CSAL.

Now that OFCCP has decided to once again give contractors advance notice of upcoming audits, its imperative that employers take advantage of this gift of extra-time to ensure they are prepared to submit a compliant AAP once their audit actually commences.

 

It has come to our attention that OFCCP has sent out Courtesy Scheduling Announcement Letters providing contractors with advance notice of upcoming OFCCP audits.  Signed by interim Director Tom Dowd, dated February 17, 2017 and addressed generically to Human Resources Director, the letters provide warning that the establishment listed has been selected for an impending OFCCP compliance review.

The size and scope of this potential “wave” of CSALs is unknown at this point. We will update as soon as we have more details.

Last week, amidst the drama of Andrew Puzder’s withdrawal from consideration as the Secretary of Labor, the Trump administration quietly appointed Nicholas Geale as the acting Solicitor for the Department of Labor.  The Solicitor of Labor is counsel for the various agencies within the Department of Labor, such as OFCCP and OSHA, representing them in litigation and initiating lawsuits on their behalf.

Geale is a Department of Labor veteran, previously serving under President George W. Bush.  His appointment is yet another key piece of the Department of Labor leadership team under President Trump.  With this appointment, and following the confirmation of Alex Acosta, the President’s alternative nominee for Secretary of Labor, the Administration can move forward with the identification of Agency heads, including a new Director of OFCCP.

Wasting no time to identify a replacement following Andrew Puzder’s withdrawal from consideration for Secretary of Labor, President Trump announced today that he has tapped R. Alexander Acosta for the role.  Acosta, who is the only Hispanic nominee in Trump’s cabinet, is a former U.S. Attorney and at one-time sat on the National Labor Relations Board.  While nothing is guaranteed, it would seem, unlike Puzder’s, Acosta’s confirmation should be met with widespread support.   However, as we find ourselves saying on an almost daily basis these days, stay tuned for future developments.

Andrew Puzder has withdrawn from consideration as Secretary of Labor.  As we previously reported, Puzder’s confirmation hearing, scheduled for tomorrow, had been postponed multiple times amid increasing scrutiny surrounding his corporate and personal business dealings. His withdrawal came today amid reports that support among Republican Senators was faltering.

A replacement nominee has not yet been named but we will provide an update as soon as one is available.  Stay tuned.

After multiple delays, the confirmation hearing for President Trump’s Secretary of Labor nominee Andrew Puzder has been reportedly reset for February 16.

Puzder’s nomination has drawn heavy criticism and, when the hearing actually moves forward, he will most certainly face pointed questions regarding his business dealings, employment practices and positions on laws and regulations impacting employers and employees.

 

With the transition to a new presidential administration well under way, everyone is looking for signs to help predict the future.  Given President Trump’s sweeping executive action, including entering an Executive Order requiring the identification of two regulations to be eliminated for every new regulation proposed, the question of whether the make-up of the federal agencies as we know it will survive a new administration and cabinet.  Of particular importance to government contractors is the question of whether a Trump Administration suggests the end of OFCCP.  The question has been asked privately and in the media – might OFCCP be eliminated as redundant and unnecessary?

One recent event suggests otherwise. This week, the White House announced President Trump’s decision to leave intact President Obama’s landmark LGBT executive order prohibiting discrimination on the basis of sexual orientation and gender identity.

The President’s move suggests the Administration does, indeed, value the anti-discrimination protections and affirmative action principles of Executive Order 11246, as well as Section 503 and VEVRAA. Far from suggesting a demise of the long-standing Executive Order 11246 – the centerpiece of OFCCP’s existence – the President’s move suggests he stands by a historic expansion of protections, with one caveat.  President Trump has also said he will sign, if passed by Congress, the First Amendment Defense Act (FADA), which could carve out a large exception to the protections of the LGBT Order.

The new Administration may further curtail OFCCP’s budget, as well as scale-back compliance and audit burdens. We believe the eventual DOL Secretary  (which may be some time coming given the repeated and now indefinite confirmation delay) and OFCCP Director will follow the President’s lead to forego new regulations and, perhaps, rollback some aspects of existing regulations. A reprieve that likely will be welcomed by many in the contractor community .

However, while the landscape for federal contractors may  certainly change under the current administration, the elimination of OFCCP would leave a noticeable void given its vital function to advance not only equal employment opportunity but also foster affirmative action for women, minorities, veterans and the disabled, a role not duplicated by EEOC or any other federal agency.