OFCCP MAKES NEW PERSONNEL ASSIGNMENTS AT NATIONAL OFFICE

According to reliable sources at the Department of Labor, the following personnel selections or assignments were made at OFCCP:

Lorenzo Harrison was selected as the Deputy Director of OFCCP. Mr. Harrison was the Acting Deputy Director and formerly the Regional Director of the Northeast and Mid-Atlantic Regions.

Patsy Blackshear has returned to her prior position as the Director of the Division of Program Operations (DPO) at the National Office of OFCCP. She was serving in the Employment Training Administration.

Bruce Bohanan was selected as the Director of the Division of Program Policy and Planning at the National Office of OFCCP. Mr. Bohanan worked in OFCCP for several years as a manager both in the Southeast Region and in the National Office of OFCCP in the Policy Division. He was working in ESA prior to his return to OFCCP.

OFCCP AND THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 (ARRA)

By David Morgan, DCI Consulting Group

OFCCP began its first of three webinars on Wednesday, September 16, geared toward presenting information on the equal employment opportunity (EEO) and affirmative action (AA) provisions of Federal contracts concerning American Recovery and Reinvestment Act of 2009 (ARRA) funding of Federally assisted projects. The first webinar was a basic overview of AA obligations specifically for new Federal supply and service contractors under ARRA, and the steps those contractors must take to be in compliance with Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974. Senior OFCCP Compliance Officers reviewed the components of AA programs found at 41CFR 60-2, what to expect from compliance evaluations, and how to receive technical assistance. As a requirement of ARRA, the Compliance Officers further explained that all covered ARRA contractors will be scheduled for full compliance evaluations, given the “heightened scrutiny of ARRA spending”. Subsequent webinars in the series are titled, “Construction Contractors: 16 Steps to Affirmative Action Compliance” and “Federal Contracting and Procurement Officers: EEO and FAR”. Information about the webinars can be found here: http://www.dol.gov/esa/ofccp/arra_data/arra_webinar_series.htm, and OFCCP information specifically related to ARRA can be found here: http://www.dol.gov/esa/ofccp/arra_web.html.

Just one week prior to the first webinar in the series, OFCCP held a National ARRA Forum, where similar information on EEO and AA provisions of Federal contracts concerning ARRA funds was presented. Additionally, the agency covered specifics of ARRA in terms of OFCCP scheduling procedures and exceptions. OFCCP explained that part of its ARRA plan includes conducting 360 reviews of ARRA-funded construction contractors, and 90 reviews of ARRA-funded supply and service contractors. Specific scheduling exceptions for supply and service contactors under ARRA, include: recently reviewed contractors are excepted from ARRA review for 6 months, pre-award clearance is not required for contractor establishments reviewed within the past 2 years, and the 2-year window returns after the close of an ARRA review. In addition, OFCCP’s “25-establishment maximum” review policy for traditional reviews will not be the same for ARRA reviews; however, OFCCP mentioned that based on the information they understood regarding ARRA projects, it did not seem likely that more than 25 establishment reviews would occur within the same scheduling year (or at least would occur very rarely). ARRA-funded supply and service contractors can expect to receive an ARRA Notification Letter, in addition to the standard scheduling letter.

E-VERIFY REQUIRED AS OF SEPTEMBER 8, 2009

by Johnny Fuller, Director of Affirmative Action Programs, DCI Consulting Group

The Department of Homeland Security has posted on its website that federal contractors (and subcontractors) will be required to use E Verify (Executive Order 12989) as of September 8, 2009. President Bush amended the new rule by on June 6, 2008, instructing federal agencies to require federal contractors to agree to electronically verify employment eligibility of their employees. Only federal contractors awarded a new contract after September 8, 2009 will be affected. Federal contractors will not be allowed to use E-Verify to verify current employees until after September 8, 2009. The amended Executive Order upholds the policy that the federal government does business with companies whose employees can legally work in the US. The new rule requires federal contractors agree to use E-Verify confirming employment eligibility of all current employees as well as all people that were hired during the contract term.

DOL PUBLISHES PROPOSED RULE IMPLEMENTING EXECUTIVE ORDER 13496

by Fred Satterwhite, Senior Consultant, DCI Consulting Group


More than six months after President Obama signed Executive Order 13496, the U.S. Department of Labor today published a proposed regulation describing the content of the notice required by the Order's contract clause. The DOL has requested that comments regarding the proposed rule be received no later than September 2, 2009.

According to the proposed rule, the required notice will be included in all Federal contracts, except those involving purchases below the simplified acquisition threshold (currently $100,000) and contracts resulting from solicitations issued prior to the effective date of the final rule. Subcontracts necessary to the performance of the prime contract that fall below the simplified acquisition threshold, however, are not exempted and must include the notice.

The requirement does not apply to employers subject to the Railway Labor Act or employing workers as agricultural laborers, but in a significant change from the previous E.O. 13201 ("Beck") requirements, it does apply to employers across the country (including states with right-to-work laws).

The notice includes details about the rights of employees under the NLRA, including:

• Forming a union and participating in various union-related activities;


• Choosing not to join a union or participate in such activities;


• Protection from illegal actions by an employer as a result of union activities;


• Protection from illegal actions by a union based on their support of the union.
  

The notice also includes detailed instructions for contacting the NLRB if employees feel that their rights have been violated. The proposed rule states that the notice is to be included verbatim in a contract, subcontract, or purchase order, rather than incorporated by reference only (as was permitted for the Beck requirement).

Required posters will be printed by the DOL and made available through government contracting agencies, OLMS, OFCCP, and by download from the OLMS web site.

If notices are provided to employees electronically, contractors must display a link to the DOL’s web page that contains the full text of the notice. Also, the link itself must include the following text on the contractor’s web site:

RIGHTS OF EMPLOYEES UNDER THE NATIONAL LABOR RELATIONS ACT

‘‘It is the policy of the United States to encourage collective bargaining and protect the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid and protection.’’

OFCCP may enforce the Order through either a review specifically targeting E.O. 13496 compliance only, or during the course of a regular compliance evaluation, or in response to a complaint. No specifics were given regarding the selection of contractors for an E.O. 13496-only review.

Employees of covered contractors can file written complaints that the contractor has failed to comply with the Order to either OLMS or OFCCP. Complaints will be investigated by OFCCP, and the DOL estimates that they will receive approximately 50 such complaints per year.

If non-compliance is not resolved through conciliation, OFCCP must refer the case to OLMS, who then may take it to the Solicitor of Labor for enforcement. The ultimate penalties for non-compliance can include cancellation or suspension of current contracts, or debarment from future contracts including extension of existing contracts.

A potentially controversial portion of the proposed rule states that, if the DOL finds a subcontractor is not in compliance with the Order, the Secretary of Labor may direct the contractor to require the subcontractor to come into compliance. If this results in the contractor becoming involved in litigation with the subcontractor, the contractor may request that the United States enter the litigation. In cases where the contractor does not take the action directed by the Secretary, the DOL can enforce against the contractor as though they were out of compliance with the Order.

The DOL estimates that each contractor will spend 3.5 hours per year to comply with this rule, at an average annual cost of $108.57.

PATRICIA A. SHIU NAMED HEAD OF OFCCP

Patricia A. Shiu, currently Vice President of Programs at the Legal Aid Society-Employment Law Center, has been named Director of the OFCCP. Shiu has dedicated her twenty-five year career to strengthening and enforcing the rights of women, minorities, persons with disabilities, and low-wage workers. Shiu is also the Director of the Legal Aid Society’s Work and Family Project and advocated for the passage of California’s Family Rights Act and its regulations. Shiu was appointed to the Civil Rights Reviewing Authority for the Department of Education in 1993 by Secretary Richard Riley. She is a former member of the Executive Board of the National Employment Lawyers Association (NELA) and served as one of its Vice Presidents. Shiu serves on the Board of Directors of The Employee Rights Advocacy Institute For Law & Policy, NELA’s related charitable and educational public interest organization. She is a graduate of the University of San Francisco School of Law.

DOL SECRETARY RELEASES LABOR’S FY 2010 BUDGET

Department of Labor Secretary Hilda Solis outlined DOL’s FY 2010 budget request in a national online discussion with stakeholder groups, the general public and the news media. According to the DOL’s press release, the budget request for OFCCP in FY 2010 is $109.5 million dollars, which compares with FY 2009 OFCCP budget at $82.1 million dollars. The staffing request for OFCCP for FY 2010 is 798 full time employees compared to 585 in FY 2009.

EEOC ISSUES TECHNICAL ASSISTANCE ON H1N1 PREPAREDNESS COMPLIANCE WITH ADA

The EEOC issued a technical assistance document that provides guidance on how employers can prepare for the H1N1 virus without violating the Americans with Disabilities Act.

EEOC SUES RETAIL GIANT FOR HARASSMENT OF LATINOS

The EEOC announced a lawsuit against Sam’s Club, which is owned and operated by Wal-Mart. EEOC’s lawsuit alleges Latino employees endured a hostile work environment based upon their Mexican national origin.

HOSPITAL TO PAY $100K FOR FIRING EMPLOYEE BASED ON DISABILITY

A Pittsburgh hospital will pay $100,000 to settle a disability discrimination lawsuit in which the hospital allegedly fired an employee because she had cancer, according to an EEOC announcement. The EEOC alleged the hospital suddenly stopped accommodating an employee’s disability and demanded she return to work full-time with no restrictions. The EEOC claimed the supervisor discriminated against the worker after she returned to work by substantially increasing her workload, removing her staff assistant, and subjecting her to unwarranted work scrutiny.

EEOC SUES MANUFACTURER FOR SEX DISCRIMINATION

The EEOC announced a lawsuit against a manufacturer alleging it failed or refused to promote female workers because of their sex to higher-paying jobs. The EEOC claimed the company discouraged female workers from seeking higher-paying jobs.