The Latest Updates on the Federal Government’s New Contractor Portal
|
04/05/2022
|
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...
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|
New Government Contractor AAP Verification Process Coming?
|
01/18/2022
|
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...
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|
Ban the Box Legislation for Federal Contractors Takes Effect
|
12/20/2021
|
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...
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|
Updated Vaccination Protocols for Government Employees and Federal Contractors
|
07/30/2021
|
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.
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|
EEO-1 Component 2 (Pay Data) Reporting Reminder
|
08/08/2019
|
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...
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Pay Data Reporting Is Back (For Now)!
|
05/07/2019
|
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...
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Failure to Accommodate an Employee’s Disability May Not Support a Discrimination Claim Under the ADA
|
04/09/2019
|
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...
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Is EEO-1 Pay Reporting Back? Important Updates for Government Contractors
|
03/11/2019
|
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...
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|
New World Order for Government Contractors
|
03/28/2017
|
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.
|
|
OFCCP Publishes Final Pay Transparency Regulations for Government Contractors
|
09/25/2015
|
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...
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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"
|
09/16/2015
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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.
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Government Contractors & Other Large Employers: It’s That Quarter Again!
|
08/05/2015
|
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...
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OFCCP Proposes Overhaul of Sex-Discrimination Regulations
|
02/03/2015
|
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.
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Editors
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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