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New World Order for Government Contractors
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03/28/2017
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By: Charles McClellan
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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.
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OFCCP Publishes Final Pay Transparency Regulations for Government Contractors
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09/25/2015
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By: Charles McClellan
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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...
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Franchisors, Parent and Sibling Entities, and Employers Who Use a Staffing Agency, Subcontractor, or Vendor: Beware! You (Perhaps) Just Became a "Joint Employer"
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09/16/2015
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By: Charles McClellan
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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.
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Government Contractors & Other Large Employers: It’s That Quarter Again!
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08/05/2015
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By: Charles McClellan
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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...
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OFCCP Proposes Overhaul of Sex-Discrimination Regulations
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02/03/2015
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By: Charles McClellan
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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.
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Authors
Don Berner, the Labor Law, OSHA, & Immigration Law Guy
Boyd Byers, the General Employment Law Guy
Jason Lacey, the Employee Benefits Guy
Additional Sources
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