Kansas Employment Law Blog Photo
The Latest Updates on the Federal Government’s New Contractor Portal
By: Charles McClellan

The OFCCP is moving forward with the rollout of its new Contractor Portal (previously designated the Affirmative Action Program Verification Interface) for federal government contractors and subcontractors. The OFCCP is directing all supply and service contractors and subcontractors (construction contractors are not currently covered) who are required to develop and maintain affirmative action programs to register in the Contractor Portal.

The federal government requires contractors with at least 50 employees (company-wide) and a single covered prime government contract or subcontract of $50,000 or more to develop a written affirmative action program (“AAP”) for the employment and advancement in employment of women, minorities, and individuals with disabilities. If the contractor has at least 50 employees and a single covered contract or subcontract of $150,000 or more, it must also develop an AAP for protected veterans.
The OFCCP’s new initiative requires (among other things) all covered contractors and subcontractors, for the first time, to register in an online Contractor Portal and to certify compliance with their affirmative-action obligations. The Contractor Portal opened for registration on February 1, and contractors can now access the Portal to register their company. Companies are required to set up each AAP establishment in the Portal separately, and they may authorize multiple users (including users unique to each establishment) to access their Portal account. The OFCCP encourages, but does not require, contractors to visit the Contractor Portal and complete the registration process as soon as possible. While the registration process is typically simple and straightforward, contractors sometimes run      Continue Reading...
New Government Contractor AAP Verification Process Coming?
By: Charles McClellan

Last fall, the Office of Federal Contract Compliance Programs (“OFCCP”) received approval from the Office of Management and Budget (“OMB”) to implement a new online platform — the Affirmative Action Program Verification Interface (“AAP-VI”) — to collect information from covered federal contractors (including covered subcontractors) regarding their affirmative action programs.

The proposed AAP-VI consists of two separate elements. First, it provides a portal for contractors to submit electronic copies of their AAPs and supporting documents to the OFCCP during an audit. Second, it creates a new “certification” tool for all covered contractors. This new tool would require each contractor to annually certify that it has (or has not) created and maintained compliant affirmative action plans at each establishment and to acknowledge that the contractor may not alter or update its current AAPs once such certification is made. One impact of such a tool is that it would give OFCCP, for the first time, a database of entities that identify as government subcontractors. The OFCCP would be able to use that information to identify future targets for enforcement activities, such as compliance audits.

OMB’s approval signifies its conclusion that the OFCCP’s record-keeping proposal would not be inappropriately burdensome on federal contractors or duplicative or in conflict with the work of other federal agencies. But OMB does not review the substance of the agency proposals or determine whether they are within the scope of an agency’s regulatory authority. The OFCCP claims that existing affirmative-action regulations allow it to require contractors to use the AAP-VI,      Continue Reading...
Ban the Box Legislation for Federal Contractors Takes Effect
By: Charles McClellan

Civil-rights groups across the globe have long advocated for the removal of “checkboxes” on job applications that require applicants to disclose prior convictions. In the United States, the EEOC has often expressed concerns that screening out all applicants with a prior conviction (or even a prior felony conviction) would tend to have a disparate impact on minority or other protected groups. Many states (including Kansas) have laws which ban such inquiries for public employers, but only a handful of states (such as California, Colorado, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington) and cities (including Columbia and Kansas City, Missouri) have enacted similar laws for private employers.

Congress included “ban the box” legislation known as the “Fair Chance Act” for federal government contractors and subcontractors within the “National Defense Authorization Act for Fiscal Year 2020,” which then-President Donald Trump signed into law on December 20, 2019. That law (which is codified at 41 U.S.C. § 4174) was slated to take effect two years after becoming law or, in other words, on December 20, 2021.

As it applies to employers, this law prohibits federal contractors from asking (orally or in writing) for any criminal history record information regarding applicants before extending a conditional offer of employment. Criminal history record information includes, for example, information about an individual’s arrests, indictments, criminal charges, or dispositions thereof, as well as any sentencing, ongoing supervision, or release. The law does not prohibit employers      Continue Reading...

Updated Vaccination Protocols for Government Employees and Federal Contractors
By: Charles McClellan

On July 29, President Biden announced new vaccination guidelines for federal government employees and onsite government contractors. Every federal government employee and every government contractor who works on government property will be required to disclose their vaccination status. Any such employee or contractor who does not attest to being fully vaccinated will be required to wear a mask on the job at all times (no matter where they are physically located), to physically distance from all other employees and visitors, to comply with a weekly or twice-weekly COVID-testing regimen, and generally will be prohibited from travelling for work.

While these new guidelines do not currently extend to offsite government contractors, a White House press release noted that, “President Biden is directing his team to take steps to apply similar standards to all federal contractors.” So far, the government has not issued any formal rules or executive orders along these lines, but similar requirements for the government-contractor workplaces may be coming soon. 
EEO-1 Component 2 (Pay Data) Reporting Reminder
By: Charles McClellan

As if you could forget, we’re now less than two months from the court-mandated September 30, 2019, deadline to submit EEO-1 Component 2 data to the EEOC. Every employer with at least 100 total employees (across all locations) must submit a count of employees broken down by establishment, gender/race-ethnicity combination, EEO job category, and pay band, as well as the total number of hours worked for all employees in each one of those unique combinations. That’s more than 3,500 data points per establishment!

Here are a few reminders for you as you collect and prepare your information for filing:
  • You must select an employee snapshot from one pay period from October through December of each year (2017 and 2018); it does not have to be the same period you used for EEO-1 Component 1 reporting (which you previously filed).
  • You must count all full and part-time employees on your payroll for that period; you do not count “leased” employees (such as temp agency employees) or temporary or seasonal employees.
  • You must group employees by pay band based on their final, W-2 Box 1 wages for each calendar year. Do not prorate or otherwise adjust these amounts.
  • For non-exempt workers, you must count actual hours worked, which (under the FLSA regulations, which are used to count hours for this reporting) does not include, for example, paid time off, vacation, or holiday hours.
  •      Continue Reading...
Pay Data Reporting Is Back (For Now)!
By: Charles McClellan

After a tortured history, the EEOC’s pay-data collection requirements are back! At least for now.

Consistent with some recent federal court rulings, all employers with 100 or more employees, as of now, must submit summarized pay data for all employees for 2017 and 2018 to the EEOC by September 30, 2019. The government is appealing the court rulings, and there still is a possibility that the pay-data reporting will not happen. But pending appeal and further details regarding the format and process for reporting employee pay data, employers should begin now to collect and review 2017 and 2018 pay data and to clean up any errors.

Regulatory Background

In 2014, President Obama directed the EEOC to develop a tool for collecting pay data from employers. In September 2016, the EEOC announced that pay-data collection would be incorporated into employer’s annual EEO-1 reports, beginning in December 2017. The initial proposal required EEOC to collect pay data for at least twice before September 30, 2019.

The EEOC regulations required employers to report, within each of the 10 EEO-1 job categories and 14 gender, race, and ethnicity categories, how many employees gross W-2 wages for the prior 12-month lookback period fall within each of 12 different pay bands. The      Continue Reading...

Failure to Accommodate an Employee’s Disability May Not Support a Discrimination Claim Under the ADA
By: Charles McClellan
In October 2018, a three-judge panel at the Tenth Circuit clarified that an employee cannot sue its employer merely for failing to provide a reasonable accommodation under the Americans with Disabilities Act. Now the court is going to take another look at that ruling.
Laurie Exby-Stolley, a county health inspector in Colorado, sued her employer for disability discrimination on the theory that it failed to accommodate her disability. She had broken her dominant right arm at work and had undergone two corrective surgeries, but the injury still impacted her ability to perform tasks like lifting, moving, or opening objects or writing. These difficulties prevented Exby-Stolley from keeping up with her workload. Her doctor ultimately identified several permanent restrictions that prevented Exby-Stolley from performing the inspector duties.
Over the course of several months, Exby-Stolley and her employer discussed various accommodations. At first, Exby-Stolley moved into a part-time office job that was within her restrictions, but she did not enjoy it. She claimed at trial to have proposed many other potential accommodations that would allow her to work as an inspector or in other roles, but the County rejected all of her suggestions without offering any alternatives. According to the County, the only accommodation Exby-Stolley requested was that the County create a new position for her, cobbling together light-duty tasks from various different jobs. The ADA does not require employers to create new positions as a reasonable accommodation, but the County indicated it would continue to look for other existing job opportunities within      Continue Reading...
Is EEO-1 Pay Reporting Back? Important Updates for Government Contractors
By: Charles McClellan

In 2016, with much fanfare, the EEOC adopted new summary pay-reporting requirements for all employers who file an EEO-1 report, which includes most employers with at least 100 employees and most federal government contractors with at least 50 employees and a government contract worth at least $50,000. In August 2017, before those new requirements went into effect, the Office of Management and Budget (OMB) issued an immediate stay that excused employers from having to report pay data. But on March 4, 2019, with the 2018 filing period opening in mid-March (pushed back due to the government shutdown earlier this year), a judge in the District of Columbia ruled that the OMB had no grounds to stay the pay collection rules, and the Court lifted the stay. The EEOC had purged from its website its prior guidance and instructions regarding pay collection, and it remains to be seen whether EEOC will require—or even be equipped to receive—payroll compensation data for the 2018 reporting cycle.

For government contractors subject to Section 503 of the Rehabilitation Act, which requires affirmative action to support the employment of individuals with disabilities, be on the lookout for increased OFCCP activity in this area. The agency has announced a new tool, a “Section 503 Focused Review,” to evaluate contractor’s efforts to employ individuals with disabilities. OFCCP has indicated that it will begin these Section 503 Focused Reviews at contractor headquarter locations, and it is expected to publish later this month a courtesy scheduling announcement      Continue Reading...
New World Order for Government Contractors
By: Charles McClellan

On March 27, 2017, President Trump took two actions to roll back a controversial Obama-era requirement for government contractors. 

First, the President signed an Executive Order revoking President Obama’s Fair Pay and Safe Workplaces Executive Order (Executive Order 13673, as amended by Executive Orders 13673 and 13738). This controversial executive order had required, among other things, federal contractors to (1) disclose prior violations of federal and state employment and labor laws in solicitations for certain government contracts and every six months during the existence of the contract (the “blacklisting” order) and (2) provide certain pay-related information to employees and independent contractors (the “paycheck transparency” order).  
In conjunction with that Executive Order, the President also signed into law H.J. Resolution 37. This measure—authorized by the rarely used Congressional Review Act, which allows Congress to review and overrule a regulation adopted by a government agency within the last 60 legislative days (in this case dating back to May 2016), prohibiting the agency from issuing in the future a rule that is substantially the same—overruled the final agency regulations designed to implement the Fair Pay and Safe Workplaces Executive Order. A federal judge already had issued a temporary restraining order last fall, blocking implementation of the blacklisting portion of the order, but allowing the paycheck transparency rules to take effect. This resolution now negates the entire set of regulations and bars the government from adopting substantially the same regulations again in the future, unless expressly authorized by an act of Congress.
This action marks President      Continue Reading...
OFCCP Publishes Final Pay Transparency Regulations for Government Contractors
By: Charles McClellan

The OFCCP recently published final Pay Transparency regulations for government contractors. Mandated by Executive Order, the new regulations protect applicants and employees from adverse treatment for sharing pay information, establish employer defenses to pay-transparency discrimination claims, and impose publication requirements on contractors. 

Regulations Prohibit Pay-Transparency Discrimination
The regulations add a new anti-discrimination provision to the Equal Opportunity Clause that will become part of every government contract and subcontract. That provision states:
The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant.
“Compensation” is broadly defined to include not only salary and wages, but also overtime pay and shift differentials; bonuses, commissions, and profit sharing; vacation, holiday, insurance, retirement and other benefits; and stock options and awards. Unlike the NLRB’s recent pay-transparency rules, this nondiscrimination provision applies to all employees, including supervisors and managers.
In pursuing pay-transparency discrimination claims, the OFCCP will apply the “a motivating factor” standard. This means the OFCCP can prove discrimination if pay transparency was a motivating factor in an adverse employment decision, even if other legitimate grounds also animated the contractor’s decision. The OFCCP also warns that, in some cases, it will apply the McDonnell Douglas burden-shifting approach to show that an employer’s proffered justification for its actions is a pretext for discrimination. Unlike Title VII or other discrimination claims, only the OFCCP—not individual employees—can      Continue Reading...
Franchisors, Parent and Sibling Entities, and Employers Who Use a Staffing Agency, Subcontractor, or Vendor: Beware! You (Perhaps) Just Became a "Joint Employer"
By: Charles McClellan

A new ruling by the National Labor Relations Board (NLRB) threatens to destroy the line separating corporate entities and the corresponding limitations on liability by dramatically expanding the definition of “joint employer” in the labor context.

For more than three decades, the NLRB had applied the same joint-employer standard: where one employer exercises sufficient direct control over the terms and conditions of another’s employees, they are “joint employers.” This means that both employers have collective bargaining obligations with respect to the joint employees, face potential liability for unfair labor practices or breach of a collective bargaining agreement, and are subject to economic protest activity, such as strikes, boycotts, and picketing.
Background – Union Alleges that Company Is Joint Employer with Its Staffing Agency
A Teamsters union sought to organize the employees of a recycling center in California. The workers were employed by a staffing agency, Leadpoint Business Services, and worked on the premises and alongside employees of Browning-Ferris Industries (BFI). The union argued that BFI was a joint-employer, but the Regional Director rejected that argument under existing precedent. While BFI had contractual rights to control certain aspects of the employment relationship, it had not actually exercised those rights, and its control was so indirect, limited, and routine, that BFI could not be considered a joint employer.
On appeal, the NLRB, in a 3-2 decision, abandoned the current joint employer test in favor of a much broader, union-friendly test, and concluded that BFI and Leadpoint were joint employers.
NLRB’s New Test – It’s All About      Continue Reading...
Government Contractors & Other Large Employers: It’s That Quarter Again!
By: Charles McClellan

By the end of the third quarter of each year (September 30), the government requires certain federal contractors and other large employers to disclose demographic data about their workforce. Are you ready to file? 

What reports have to be filed? 

The federal government mandates that certain employers disclose the demographics of their workforce in two different annual reports: 

  • The U.S. Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contractor Compliance Programs (OFCCP) require an EEO-1 Employer Information Report, which summarizes gender and race/ethnicity demographics.
  • The U.S. Department of Labor Veteran’s Employment and Training service and the OFCCP require a VETS-4212 Veterans’ Employment Report (which this year replaces the prior VETS-100 and VETS-100A reports), which summarizes protected veteran demographics. 
Who has to file?
The EEO-1 report must be completed by:
  • Employers with 100 or more employees (including smaller affiliate companies where the entire enterprise employs 100 or more employees) who are also subject to Title VII of the Civil Rights Act of 1964.
  • Federal contractors with a prime contract or first-tier subcontract amounting to $50,000 or more and with 50 or more employees. 
By contrast the VETS-4212 applies to all federal contractors and subcontractors with a contract or subcontract in the amount of $100,000 or more. 
What has to be reported?
The EEO-1 and VETS-4212 reports both present a snapshot of the demographics of your workforce at a single point in time. You may use the data from any pay period during the quarter      Continue Reading...
OFCCP Proposes Overhaul of Sex-Discrimination Regulations
By: Charles McClellan

The Department of Labor’s Office of Federal Contract Compliance Program (OFCCP), which regulates companies that contract or sub-contract to do business with the federal government, issued proposed rules last week that would replace the existing sex-discrimination guidelines for contractors. The proposed rules purport to account for changes in sex-discrimination laws that have occurred since the rules were first adopted in 1970 and to address current workplace issues.

Among other changes, the proposed regulations: 

·         Shift emphasis from overt discriminatory practices that no longer exist (such as gender-segregated job advertisements or “male-only” hiring policies) to more subtle forms of sex-based discrimination, including sexual harassment, sex-based job segregation and classification, and discrimination based on gender-based stereotypes related to family caretaking responsibilities or gender norms.
·         Expand protections to pregnant applicants and employees, consistent with the 1978 Pregnancy Discrimination Act, by, among other things, prohibiting employers from forcing pregnant employees to take leave or limiting their job duties and by obligating employers to provide pregnant employees reasonable accommodations and, in some situations, health or disability insurance.
·         Clarify that harassment or discrimination based on gender identity constitutes unlawful sex-discrimination.
·         Broadly define and explicitly prohibit sex-discrimination in compensation and fringe benefits.
Interested parties have until March 31, 2015 to comment on      Continue Reading...

Don Berner Image
Don Berner, the Labor Law, OSHA, & Immigration Law Guy
Boyd Byers Image
Boyd Byers, the General Employment Law Guy
Jason Lacey Image
Jason Lacey, the Employee Benefits Guy
Additional Sources
Subscribe to Kansas Employment Law Letter Image
Subscribe to Kansas Legislative Insights Image