At a client seminar that my office presented during the very contentious 2016 campaign season, my law partner John Doyle delivered an introductory disclaimer. Although I may not have his words verbatim, I will never forget the message, which was as follows:
The only thing we’re partisan about is employers. That’s it.
It was a great way to dispel the perception that we were being politically partisan while we had to discuss the positive and negative impacts of the candidates’ proposals on employment law issues.
This morning, I got a comment from the plaintiff in an age discrimination lawsuit that I referenced last year, based on an article that had appeared in The Washington Post. Here’s what the plaintiff, Dale Kleber, said to me:
Well, Robin, I was surprised that although you have formal legal training, the article you wrote contains so many factual assumptions that simply are false. I suspect that your firm primarily represents defendant employers and your “analysis” is tainted with the bias of economic self-interest. In the near future, I expect to obtain an objective review of my case from the the Seventh Circuit. Your article, devoid as it is of even the most basic factual or legal analysis is simply an editorial masquerading as a legal newsletter. But perhaps that is what your clients want to hear.
I admit I did not think Mr. Kleber was a victim of age discrimination based on the information in the WaPo article, and I admit that I said so. Reading between the lines on his comment, it appeared to me that he had lost his case (since he was hoping to be vindicated on appeal), but I read the court filings today and it’s more complicated than that. (I’ll have a separate blog post about the merits of Mr. Kleber’s lawsuit, which I think is pretty interesting.)
As far as writing “editorials” on this blog, I plead guilty. This ain’t, after all, The New York Times.
I also admit that I and my firm represent employers, and that we are always on the employers’ side.
But what I’d really like to talk about is what it means to be “on the employers’ side,” or, as John says, “partisan” on behalf of employers. Continue Reading ›
On the heels of the exemption for Hurricane Harvey contractors, and given the additional widespread destruction caused by Hurricane Irma, the federal government has extended a deadline affecting federal contractors and subcontractors.
VETS-4212
The VETS-4212 report, which contractors must file annually between August 1 and September 30, has been extended this year for all contractors, regardless of location. The Veterans’ Employment and Training Service posted on its website that contractors and subcontractors who file their VETS-4212 reports by November 15 will be considered timely. This one-time, 45-day extension is due to the needs of those affected by the recent hurricanes.
HURRICANE IRMA NATIONAL INTEREST EXEMPTION FOR NEW CONTRACTS
As it did for Hurricane Harvey contractors previously, on September 7, the Office of Federal Contract Compliance Programs issued a another National Interest Exemption Memorandum providing a three-month exemption on preparing written affirmative action plans for a very specific group of contractors and subcontractors.
According to the FAQs, the exemption applies only to contractors who have signed or will sign a new supply and service or construction contract between September 1 and December 1, 2017, solely for the “specific purpose of providing Hurricane Irma relief” and who do not otherwise have to comply with the regulations.
Does this apply to everyone who has a contract to provide hurricane relief?
No. The exemption applies only to those companies that become covered contractors by virtue of a new contract aimed solely at providing Irma relief.
Who is not covered?
Any contractor that is required to comply with the regulations based on a non-Irma relief contract (whether that contract be old or new). Continue Reading ›
Law360 just reported that President Trump, as expected, has nominated Peter Robb of Downs Rachlin Martin PLLC to be General Counsel for the National Labor Relations Board. If confirmed by the Senate, Mr. Robb will succeed current General Counsel Richard Griffin, whose term will expire October 31.
According to the Law360 article, the Senate vote on President Trump’s remaining NLRB nominee, William Emanuel, could be imminent, but now the President will have to find one more nominee — to succeed Republican Chairman Philip Miscimarra, who will be stepping down when his term expires in December. Continue Reading ›
All immigration, all the time! Will Krasnow of our Boston Office has been working overtime in
following the latest developments, and explaining what they mean for employers. Last Friday, he had this Immigration Dispatch on the end of the Deferred Action on Childhood Arrivals under President Trump. (But is the President now close to a DACA deal with the Dems? Could be.) And yesterday, Will had another on the Supreme Court’s temporary stay of an injunction against the Administration’s refugee ban. (A “stay of an injunction of a ban” — triple negative, yay! — means that the Administration can continue, for the time being, to block certain refugees from coming into the United States.) Oral argument on the legal challenge to the President’s March 6 revised travel ban is scheduled for October 10, with a final decision to follow.
Will, thank you for keeping us all up to speed! Continue Reading ›
Laboratory Corporation of America has agreed to pay approximately $200,000 to resolve a matter with Office of Federal Contract Compliance Programs. According to the Conciliation Agreement between the parties, the OFCCP
found statistically significant adverse impact against females in the selection process for Lab Assistant and that Asians were paid less than similarly situated non-Asian White employees in the Lab Assistant position.
The alleged hiring discrimination resulted in a shortfall of only two females, and the amount of statistical significance was redacted from the Conciliation Agreement posted online by the OFCCP. To resolve this claim, LabCorp will distribute more than $51,000 to the affected class of female applicants. In addition, the company agreed to revise its selection process, “including the criteria used in each step of the hiring process, any application screens, interviews, tests, credit checks, review of criminal history, reference checks, testing, or other selection procedure;” to review and revise the job description for Lab Assistant “to minimize the potential for gender stereotyping”; and to list the minimum requirements for the Lab Assistant position on all job postings.
To resolve the allegations of compensation discrimination, LabCorp will pay almost $150,000 to Asian Lab Assistants who were allegedly paid less than their White counterparts, even after controlling for legitimate, non-discriminatory factors. In addition, the company must conduct its own regression analysis in six months, and if it reveals statistically significant adverse impact against Asians, LabCorp has agreed to increase their salaries.
Of course, LabCorp’s settlement with the agency is not an admission of liability or wrongdoing. Continue Reading ›
Based on a recent Senate appropriations bill, it appears that the Trump Administration’s plan to merge the Equal Employment Opportunity Commission with the Office of Federal Contract Compliance Programs has stalled. The
Senate bill would fund the OFCCP for Fiscal Year 2018 at approximately $103.5 million, which is more than the House’s proposed funding of $94.5 million. Congress would not be proposing funds for the agency if it planned to eliminate it.
This legislative action follows a letter from Acting OFCCP Director Thomas Dowd to the Institute for Workplace Equality on August 24, “acknowledg[ing] that the consolidation proposal includes several challenging transition issues.” Although Mr. Dowd did not expressly state that merger plans were on ice, he noted that any consolidation was unlikely to occur until Fiscal Year 2019 and that the agency would focus on “contemporaneous opportunities to improve effectiveness and efficiency.”
Perhaps Congress is listening to its constituents. The proposed merger was opposed by both civil rights advocacy groups and employer organizations, and my colleague Angelique Lyons cogently summarized the pros and cons here.
We will continue to monitor this issue for further developments. Continue Reading ›
For all who died that day, in New York, at the Pentagon, and in Pennsylvania . . . we will never forget. Continue Reading ›
Experts have estimated that it may cost as much as $180 billion to repair the damage done by Hurricane Harvey. With so much rebuilding to be done, the Office of Federal Contract Compliance Programs is temporarily waiving certain equal employment opportunity requirements to expedite Hurricane Harvey relief efforts. The deputy director has the authority to waive any part of the EEO clause in a specific contract or group of contracts “when he deems that special circumstances in the national interest so require.” (Scroll down to section (b)(1).)
On August 31, the Deputy Director of the OFCCP issued a memorandum temporarily exempting contractors providing Hurricane Harvey relief assistance from developing written affirmative action programs. The exemption applies to the affirmative action programs required by Executive Order 11246, Section 503 of the Rehabilitation Act, and Section 4212 of the Vietnam Era Veterans’ Readjustment Assistance Act. According to the memorandum, the EEO clauses in affected contracts may be modified to specify that “the contractor will not be obligated to develop the written affirmative action program required under the regulations implementing [EO11246, VEVRAA, Section 503 of the Rehabilitation Act of 1973, as amended].”
Although federal contractors providing Hurricane Harvey relief assistance will not have to develop written affirmative action programs, they will still be required to comply with other EEO requirements pertaining to record keeping, record retention, employment listings, and posting of the “Equal Opportunity is the Law” notice.
The affirmative action program exemption will last three months, but it may be extended “should special circumstances in the national interest so require.” Continue Reading ›
This is Constangy’s flagship law blog, founded in 2010 by Robin Shea, who is chief legal editor and a regular contributor. This nationally recognized blog also features posts from other Constangy attorneys in the areas of immigration, labor relations, and sports law, keeping HR professionals and employers informed about the latest legal trends.
