The West Virginia Senate has passed legislation requiring employers to provide reasonable accommodations related to pregnancy and childbirth. The Pregnant Workers Fairness Act, HB 4284, was overwhelmingly approved on March 6.
Introduced in the House on January 24, 2014, by Delegate Don Perdue, HB 4284 would amend the Code of West Virginia to make it an unlawful employment practice for covered entities to:
- Fail to make reasonable accommodations to an applicant’s or employee’s known limitations related to pregnancy, childbirth, or related medical conditions, following written documentation from a health care provider specifying the limitations and suggesting what accommodations would address those limitations, unless the covered entity can demonstrate the accommodation would impose an undue hardship on the operation of the business;
- Deny employment opportunities, if the denial is based on the covered entity’s refusal to make reasonable accommodations to known limitations related to the pregnancy, childbirth, or related medical conditions of an employee or applicant;
- Require a job applicant or employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation that the applicant or employee chooses not to accept; or
- Require an employee to take leave under any leave law or covered entity policy if another reasonable accommodation can be provided for the employee’s known limitations related to the pregnancy, childbirth, or related medical conditions.
“Reasonable accommodation” and “undue hardship” would have the same meaning and be construed in the same manner as in Section 101 of the ADA.
HB 4284 also includes protections against retaliation for those who exercise their rights under the new law.
The legislation now moves to the Governor’s desk.
Federal magistrate recommends court grant DOL/OFCCP’s motion to remand Frito-Lay, Inc’s challenge to ARB ruling
A federal magistrate has issued an order recommending that a district court in Texas grant the U.S. Department of Labor’s (DOL) and OFCCP’s motion to remand back to the department’s Administrative Review Board (ARB) a case in which federal contractor Frito-Lay, Inc is challenging a 2012 ARB ruling in favor of the OFCCP on the contractor’s objection to an OFCCP data request. The magistrate also recommended that the DOL/OFCCP’s pending motion to dismiss and that Frito-Lay’s pending motion for summary judgment be denied without prejudice as moot. (Frito-Lay, Inc v US Dep’t of Labor, NDTex, No 3:12-cv-1747-B-BN, February 11, 2014, released March 3, 2014)
Those closely following OFCCP developments may have noticed that the ARB decision at issue in this case was cited in the preamble portions of the OFCCP’s final rules revising the agency’s regulations on protected veterans and workers with disabilities as part of the justification behind revising the sections of those regulations regarding compliance reviews.
Frito-Lay’s complaint. On June 5, 2012, Frito-Lay, Inc filed a complaint in the U.S. District Court for the Northern District of Texas challenging the ARB’s ruling that the temporal scope of the desk audit phase of an OFCCP compliance review could be extended beyond the date that the contractor received its audit scheduling letter. Specifically, the ARB found that the temporal scope could be extended because a deficiency in Frito-Lay’s data motivated the OFCCP’s request for more information. The challenged ruling, a “Final Administrative Order” issued by the ARB on May 8, 2012 (OFCCP v Frito-Lay, Inc, ARB Case No 2010-132), reversed a 2010 ruling by an Administrative Law Judge (ALJ Case No 2010-OFC-002) in favor of Frito-Lay. The contractor’s complaint asserts that the ARB’s decision ordering the company to comply with the OFCCP’s data requests violated the Administrative Procedure Act (APA) and the Fourth and Fifth Amendments to the U.S. Constitution. The case was referred to the magistrate judge for pretrial management.
Motions. The defendants — the DOL and the OFCCP — filed a motion to dismiss or, in the alternative, for summary judgment based on the administrative record. Frito-Lay then filed a motion for leave to obtain discovery, which the court granted in part. The parties then resumed briefing on the DOL/OFCCP’s motion to dismiss, and the contractor filed its own motion for summary judgment. Shortly thereafter, the DOL/OFCCP filed their motion for remand based on errors in the ARB record.
DOL’s remand request. Both sides agreed that the ARB decision at issue was made based on a record that contained an error in the description of an alleged disparity in hiring of male and female candidates at Frito-Lay’s “Dallas Baked” facility in Dallas, Texas. However, the DOL/OFCCP and the contractor disagreed on the extent of errors in the record.
In their memorandum in support of the remand motion, the defendants explained that the challenged ARB decision was based on the ARB’s reliance on an allegation in the OFCCP’s administrative complaint that an initial analysis of certain “full-time entry-level” positions at one of Frito-Lay’s facilities “showed a disparity in the hiring rates of females as compared to males that was statistically significant at 3.26 standard deviations with a shortfall of 9 females.” However, in a declaration filed with the federal court, Aida Collins, Acting Deputy Regional Director of the Southwest and Rocky Mountain Region of OFCCP, stated that the 3.26 standard deviations applied to a combined analysis of both full-time and part time positions, not just full-time positions. This error was also identified in Frito-Lay’s motion for summary judgment.
The contractor further contended there were other errors in the initial analysis, including the scope of the analysis – it represented two warehouses, not one as the agency claimed – and the job titles – both material handlers and packers were covered. In addition, Frito-Lay asserted that the OFCCP miscounted the total number of applicants, the number of male and female applicants, and the number of new hires for the full-time material handler position at the Dallas Baked Snack facility.
In any event, the DOL/OFCCP argued that the case must be remanded to the ARB to give the OFCCP the opportunity to correct the record and to determine whether the corrected record alters the ARB’s decision.
Frito-Lay’s response. The contractor responded that the DOL/OFCCP did not articulate any legally-supportable grounds for remand. In addition, Frito-Lay argued that the ARB’s decision should be vacated due to the undisputed deficiencies contained therein, that a court-ordered remand would be either arbitrary and capricious or futile, and that a remand at this stage would be premature.
Remand standards. After reviewing applicable case law, the magistrate concluded that “the true issue with respect to remand is whether voluntary remand is appropriate under the circumstances” and that “there are no hard and fast rules as to when voluntary remand is appropriate.” Nevertheless, “it is somewhat clear that granting a voluntary remand is only appropriate when such an action would not be arbitrary and capricious and occurs within a reasonable time,” the magistrate observed.
Arbitrary and capricious? With respect to whether a voluntary remand would be arbitrary, capricious, or an abuse of discretion, courts appear to focus on whether the agency’s request for remand has been made in bad faith, the magistrate noted. In this case, the ARB relied on admittedly incorrect evidentiary allegations. Although the corrected evidence was not new, it appears that the ARB did not consider it for a variety of reasons that did not involve bad faith on the part of the DOL/OFCCP. The department and the agency did not stall in recognizing the merits of Frito-Lay’s challenges and admitted the alleged errors once they were discovered, the magistrate pointed out, adding that there has been no evidence of a pattern of legal tactics to avoid judicial review on the DOL/OFCCP’s part. As such, there was nothing to suggest that the DOL’s remand request was made in bad faith, the magistrate found. Moreover, as explained in more detail below, even if Frito-Lay prevailed on its summary judgment motion, it is likely the case would be remanded, even taking into consideration the contractor’s constitutional and other claims, he reasoned.
Reasonable time frame? Further review of the relevant case law led the magistrate to conclude that “apparently no true rules exist” as to what constitutes a reasonable time frame in which a remand is appropriate. Federal court rulings on this issue have been inconstant, he noted, citing various examples. “The only guideline to be gleaned from the cases is that courts analyze the facts of each case in an effort to reach an equitable outcome,” he wrote.
Here, the magistrate found that the amount of time that has passed – 20 months – was reasonable in light of the circumstances. While the period of time that elapsed between the ARB’s findings and the magistrate’s recommendations was “substantial,” it was not unreasonable because, once the DOL/OFCCP became aware of the error, they moved to remand the case and there was no indication that the defendants failed, or delayed, to inform Frito-Lay of the potential error, or their intention to seek remand, once it became known to them.
Vacatur not appropriate. The magistrate also recommended that the DOL/OFCCP’s motion for voluntary remand should be granted, without the court addressing the merits of the ARB’s ruling. In the absence of a finding that the ARB’s decision was arbitrary and capricious, or otherwise unlawful, a ruling vacating or setting aside the ARB’s final order would premature. Further, because the DOL/OFCCP conceded that the foundation of the ARB’s ruling must be reexamined, the court should not consider how it would rule if the record that was before the ARB were different from what it actually was, the magistrate reasoned. As such, the ARB’s ruling should not be set aside or vacated at this juncture.
Thus, he recommended that the court remand the case “for the limited purpose of examining the alleged error related to the allegation that the ‘disparity in the hiring rates of females as compared to males that was statistically significant at 3.26 standard deviations.’” The ARB relied on that allegation in deciding to order Frito-Lay to produce the contested information, and the parties agree that the allegation, as stated, is incorrect. Accordingly, the court should order that, on remand, the ARB is only to reconsider this allegation and surrounding facts, the magistrate concluded.
He also disagreed with Frito-Lay’s assertion that any finding on remand would be arbitrary and capricious as a matter of law because a raw data analysis can never support a finding of discrimination. Such a finding would be premature, the magistrate explained, because the ARB’s ruling related only to whether additional discovery was permissible, rather than any ultimate determination regarding discrimination that may be rendered by the OFCCP. If the agency should ultimately determine that the contractor has discriminated, that determination could be challenged by Frito-Lay if it is not supported by substantial evidence, including the raw data analysis.
Remand not premature. Finally, the magistrate rejected Frito-Lay’s assertion that a remand at this stage would be premature. To begin with, to the extent that the constitutional claims alleged by the contractor relate to the ARB’s reliance on the error which is the subject of remand, any such claims will be mooted by the remand, he pointed out.
Further, Frito-Lay’s constitutional challenge is unripe for judicial review because, in light of the recommended remand, any claims that the procedure undertaken by the DOL/OFCCP was unconstitutional will not yet be ripe because the agency ruling is not yet final insofar as it is remanded for reconsideration of a limited portion of the ARB’s final order. Moreover, future uncertainties exist because there is no guarantee what the OFCCP’s and the DOL’s decisions will ultimately be. It is possible that the OFCCP could decide not to pursue their investigation on remand, the magistrate noted.
Therefore, the magistrate recommended that: (1) the DOL/OFCCP’s motion for voluntary remand be granted for the limited purpose articulated in his recommendation, (2) the remaining motions should be denied without prejudice in light of the administrative remand, (3) Frito-Lay’s claims should be dismissed without prejudice to them being refiled, if appropriate, at a later date, and (4) the case should be closed.
ARB ruling cited in newly revised regulations. Notably, the ruling at issue in this case — the ARB’s May 8, 2012 decision — was cited by the OFCCP in the preamble portions of the September 24, 2013 Federal Register notices on the agency’s final rules revising its regulations that implement the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) and Section 503 of the Rehabilitation Act of 1973 (Section 503). The preambles of both notices (78 FR 58614–58679 at 58641 and 78 FR 58682-58752 at 58711- 58712) state the OFCCP’s position that the ARB’s ruling in Frito-Lay, Inc, which applied to the regulations that implement Executive Order 1126, is equally applicable to desk audits conducted under VEVRAA and Section 503 authority. Accordingly, the provisions of both regulations that cover compliance reviews (41 CFR Parts 60-300.60(a)(1) and 60–741.60(a)(1)) have been revised to reflect the “OFCCP’s longstanding position that the agency has authority to obtain information pertinent to the review for periods after the date of the letter scheduling the review, including during the desk audit,” the agency writes in both preambles.
In a September 13, 2013 webinar, Naomi Levin, who serves in the OFCCP’s Division of Policy, Planning and Program Development as the Branch Chief for Policy Development and Procedures, said that the revised VEVRAA and Section 503 regulations now “clarify” that the OFCCP may need to examine information after the date of the audit scheduling letter. Levin echoed the assertion made in the preambles that these provisions are not a new policy, but rather clarify existing policy.
An outside counsel who performed a background investigation that led to an employee’s termination was able to convince the federal district court for the District of Columbia that he was not a consumer reporting agency under the Fair Credit Reporting Act, even though the court acknowledged that 1996 amendments to the Act imposed certain obligations on “a person” who procured a consumer report or caused such a report to be procured. Although relying on persuasive authority from another jurisdiction in deciding that the outside counsel fell outside the scope of the FCRA, the court seemed to ignore persuasive authority from the Federal Trade Commission on its interpretation of the Act.
Investigation ends in discharge. In Mattiaccio, G, II v DHA Group, Inc, the employee (plaintiff here) learned from HR that there was a “complaint against personnel at the company.” About two weeks later, he was placed on administrative leave until further notice because of “information coming to light that requires additional review and investigation.” On the same day the employee was placed on leave, his employer engaged the employer’s outside counsel (defendant here) to conduct a post-employment background check on the employee. Apparently, it seemed that a day after the employee was placed on leave, a coworker provided the HR manager with information that the employee had been convicted of perjury.
By the employee’s own admission, the outside counsel performed other work in addition to background investigations. In the course of his investigation of the employee, the attorney used a computer database that according to the employee contained many inaccuracies. Despite the employee’s portrayal of the information, he was terminated. The employer issued a termination letter, asserted that he had failed to disclose prior convictions, and claimed he was terminated because he was “far less than candid with [the employer] with respect to important and relevant aspects of his background and experience.” A copy of the outside counsel’s background investigation report was also attached, which the employee said inaccurately portrayed that he was convicted of assault and battery.
FCRA claims filed. The employee filed suit against, among others, his employer and the outside counsel, alleging violation of the FCRA and state law. The employee relied on Secs. Secs. 1681(b)(2)(A) and (b)(3)(A), as well as 1681(a)(1)(A), claiming that outside counsel “improperly and unlawfully obtained [the employee’s] credit report, criminal history, civil history, prior employment information, and attempted to obtain information about drug use by [the employee], all without proper authorization from [the employee].” He also claimed that outside counsel failed to provide him with a summary of rights under the FCRA or the required “pre-adverse action” and “adverse action” notices. Finally, the employee claimed that outside counsel violated the FCRA by failing to respond to requests to correct erroneous information in the report. The employer’s outside counsel filed a motion to dismiss.
Getting around FCRA. Initially, things were not looking good for the attorney. Because there were factual disputes raised relating to outside counsel’s argument that his background check was not a consumer report and that the employee provided authorization for a background check, the court was not in a position to make a ruling on a motion to dismiss. Ironically, the court rejected the outside counsel’s argument that he could not be a consumer reporting agency as a user of consumer information, noting that the defendant’s reliance on case law was misplaced because it was based on the pre-1996 Act. While the court explained that the 1996 FCRA amendments imposed obligations on “a person” who procures a consumer report or causes such report to be procured, the court seemed disinclined to stretch this to require that outside counsel to comport with FCRA requirements when conducting background investigations.
Instead, the court turned to persuasive authority from the Northern District of Illinois, finding that outside counsel was an attorney-agent of the employer. There was “nothing in the FCRA that would require the imposition of independent FCRA obligations on an attorney-agent to the detriment to the attorney-client relationship,” said the court. Analogizing to cases involving an agency relationship, the court noted that in this instance, as in the Illinois decision, the defendant acted at the employer’s behest as its attorney-agent, preparing and evaluating the employee’s background information.
Although the court adopted persuasive authority from the Northern District of Illinois, it seemed to ignore persuasive authority from the FTC interpreting the FCRA’s provisions relating to a whether a third-party, here an attorney, should be considered a consumer reporting agency. While the outcome might have been the same if the court had considered all of the authority, it seems here the outside counsel may have slid by with the court’s decision that he was not a consumer reporting agency.
By Joy P. Waltemath, J.D.
People say the darnedest things at work. In the last few months, courts have addressed some amazing comments by managers and supervisors that did not result in any liability. While these may have been employer “victories” in the sense that there was no finding of liability, in every case they did result in litigation. Employers relying for protection on the general proposition that the law has not imposed a general civility code on employer-employee relations should make note of the fact that such comments might not result in a damages award, but they do seem to drag employers regularly into court.
And, of course, some comments do cross the line and result in employer liability – either on their own or, more frequently, as evidence supporting discriminatory intent.
Comments alone not enough for employer liability
Pain in the ass. For example, in a negligence and defamation action against the employer, a director of sales described his sales rep (later promoted to national sales manager) as a “f***king a**hole,” “pain in the ass,” and “piece of s***.” None of the sales rep’s claims were actionable, the court found: the statements were not defamatory (they clearly were opinion) and he couldn’t show negligence because the director’s allegedly tortious conduct wasn’t foreseeable by the employer. Although the rep alleged that the company had actual knowledge of the sales’ director’s incompetence as a supervisor, incompetence did not rise to the level of “criminal or tortious propensities,” concluded the Northern District of Ohio (Baum v Intertek Testing Services).
“Hot mama.” In the more familiar sexual harassment context, comments by a supervisor who called a new sales associate a “hot mama” during her first week at work, told her he was glad to have somebody to look at, commented on her clothes and how she walked, shared sexually tinged jokes, discussed his own marital unhappiness, and said “somebody’s going to think that we’re doing something nasty in here,” were neither severe nor pervasive enough to create employer liability. The Middle District of Georgia found the allegations about off-color jokes, awkward compliments, and inappropriate comments about her appearance and his marital problems were simply “ordinary tribulations of the workplace” that were not prohibited by Title VII. And a warning from her supervisor to keep quiet about a telephone call from his wife – calling her a whore and telling her to watch out – did not relate to sex or gender (Odom v Fred’s Stores of Tennessee).
Bipolar people are “highly deficient, flighty, dishonest and untrustworthy.” Because it was just a single incident in which an Ann Taylor store manager privately berated a sales lead for 45 minutes – she allegedly told the employee she was unqualified for her job because of her bipolar condition, which made her “highly deficient, flighty, dishonest, and untrustworthy” – this was not sufficient to establish a constructive discharge, even though the store manager gave the employee the choice of accepting a demotion or facing a 95 percent chance of being fired. She also purportedly told the employee she would have never hired her if she had known about her bipolar disorder (which she allegedly only learned about during the meeting).
Noting that employees are not guaranteed “a working environment free of stress,” the Eleventh Circuit found, in an unpublished opinion, that this wasn’t the kind of pervasive conduct necessary to establish a constructive discharge. It also cited the fact that the employee herself waited a few days before resigning as evidence that a reasonable person would not have felt compelled to resign under the circumstances, perhaps overlooking the evidence that the employee did, in fact, resign (Menzie v Ann Taylor Retail, Inc.).
“Your big fat ass needs to concentrate on losing weight.” Here, the timing and context of a supervisor’s comment that an employee’s “big fat ass needs to concentrate on losing weight” meant that the supervisor’s comment did not show discrimination or retaliation. Rather, the employee was terminated for seeking overtime pay for hours she did not work. The specific “big fat ass” remark allegedly was made three months before the overtime investigation and five months before the employee’s termination; this timing did not suggest a causal link. While the evidence might show some animus towards overweight individuals, the Northern District of Illinois noted, it did not show that the animus played any role in the employee’s termination. The court said accordingly that it did not need to decide whether the employee had presented enough evidence to show that her obesity was a disabling impairment (Luster-Malone v Cook County).
Comments alone are enough
“Constant lewd comments.” Sometimes comments alone are enough to lead to liability, however, though it may depend on where you work. A tax manager for Deloitte for many years alleged that her supervisor had “constantly” made lewd sexual jokes, remarks, and gestures, though he never physically grabbed her or propositioned her for sex. She eventually filed a sexual harassment grievance; she testified she “felt intimidated, humiliated, and embarrassed,” but the only evidence of an effect on her was that the jokes bothered her and “made her blush.” The federal district court in Puerto Rico would not automatically dismiss her hostile work environment claim simply because she could get work done despite her supervisor’s actions. The frequent lewd sexual jokes and gestures “easily” qualified as egregious in the professional environment. Further, although the behavior did not appear to include physical grabbing or sexual propositions, there was a “flu shot incident” at work where her supervisor supposedly directed the nurse to give the shot in her buttocks; then he imitated physical sexual conduct. Though not physically threatening, it “easily” rose to a physically humiliating level. (Miranda v Deloitte LLP).
“Chemo brain.” A supervisor’s comments to a 62-year-old employee who had just returned from leave to receive treatment for breast cancer, calling her “chemo brain,” badgering her about retirement, telling her he was going to make her the “fall guy” for a bad audit report, and eventually suspending and firing her after she complained of discrimination at a board meeting, factored into the defeat of her employer’s motion for summary judgment on discrimination and retaliation claims under the ADA, ADEA, and state law, the federal district court in Connecticut found (Hopkins v New England Health Care Employees Welfare Fund).
Using n-word “out of love.” Also, attempting to explain away inappropriate comments made by company execs isn’t necessarily a good idea. In this case, the employee had strong evidence that the company president berated her and said she and another woman “acted like ni**ers all the time.” He also repeatedly described the employee using the n-word. When she objected, he told her he was not using the term in a “derogatory” manner because “sometimes it’s good to know when to act like a ni**er.” He testified at trial that he used the term “out of love” to motivate her to improve. He also acknowledged that he “may have” told the employee that “black women get in the way of themselves” and that he had a “tendency” as a “Puerto Rican male” to feel that the man “rules in his house,” that a man’s “word is law,” and women “are too emotional.” As an affirmative defense, the defendants tried to characterize the president’s behavior as nothing more than petty slights or trivial inconveniences. Disagreeing, the Southern District of New York noted that “even a single comment may be actionable in the proper context.” It could conceive of no circumstances when calling a subordinate that name would be acceptable (Johnson v STRIVE East Harlem Employment Group).
Comments “plus” create liability
“Retard” plus a kick in the pants. Although foul language alone doesn’t often tip the scales in favor of employer liability, sometimes all it takes is a little shove to push it over the line. Take, for example, a case where an employee with Asperger’s syndrome and OCD had evidence that his store manager called him names like retard — and kicked him in the butt, and deliberately “contaminated” a game the germ-phobic employee intended to purchase. This was enough to get to a jury on his disability-based hostile work environment claim. The store manager explained that he kicked the employee to get his attention — not to physically harm him. This didn’t help the employer’s defense all that much. The employee was not harmed physically, but he testified that he was embarrassed because the incident took place in front of customers. This kind of behavior was not merely rude or offensive, the federal district court in New Jersey found, but appeared to be deliberately intended to harass the employee because of his disability. Indeed, the evidence painted “a picture of widespread insensitivity towards his disability by managers” since the inception of his employment (Witkowski v GameStop, Inc.)
“Gay porn star,” “faggot,” “queer” – and more. In a case under state law, substantial evidence supported a jury’s finding that an oil rig floor hand was called “queer” and “faggot,” and subjected to other harassment “because of” his sex or perceived sexual orientation. The heterosexual employee was called “queer,” “fagot,” “homo,” and “gay porn star” several times a day by one of his two supervisors. His supervisor posted a picture of the employee on the restroom wall: it “had a big target” around his mouth and stated “Give me the money shot.” His second supervisor also sexually harassed the employee, at one point urinating on him as he was standing below the supervisor’s elevated floor. Appealing the jury verdict in the employee’s favor, the employer argued there was not enough evidence to establish the employee was harassed “because of” his sex and/or perceived sexual orientation. Hardly, said the California state appeals court, suggesting that “any reasonable heterosexual male” would have recognized that his coworkers attacked his heterosexual identity through their comments: “sex was used as a weapon to create a hostile work environment” (Taylor v Nabors Drilling USA, LP).
“I know you like it rough” – and choking her to prove it. Evidence that for over six years an employee for a candy company was subjected to a barrage of sexually charged comments, propositions, innuendos, and gestures by the supervisor and two male coworkers that affected her detrimentally, including being choked by a male supervisor until she urinated in her pants, was enough to get to a jury on her hostile work environment claims. The employee described her work environment, which she had “absolutely loved” for ten years, as becoming a “living hell” because of the sexualized behavior of her male supervisor and two of his male subordinates.
Her supervisor told her “I’ll have you cum before you get your pants off” when he propositioned her to meet him after work. He choked her one day, telling her “I know you like it rough,” which caused her to urinate in her pants. She complained repeatedly, including filing complaints with her supervisors and the company’s CEO, as well as verbal complaints to the HR manager but no action was taken. After she complained to the CEO, she was called into her supervisor’s office, where another supervisor screamed that she was “f**king nuts” and that must be “having hot flashes.” In addition to getting sick every morning before work and being treated for anxiety and depression, the employee became suicidal before she finally resigned – and sued (Standen v Gertrude Hawk Chocolates, Inc).
Teach managers acceptable workplace language
Managerial comments like these illustrate just how porous the boundary can be between acceptable and unacceptable workplace language. Plus, some of the more egregious comments are simply breathtaking; the fact supervisors made them strongly suggests that employers are not doing a very good job of defining acceptable language in the workplace. Consider the following issues to communicate with your management team:
- What is your corporate culture: Where do you as an organization want to draw the acceptable language line? One way to get senior execs involved is to ask them to consider how such comments would reflect on their brand if they were attributed to company management via social media.
- In training managers, deal directly with how you expect managers to express themselves to employees. If name-calling, cursing, and sexual comments are not acceptable management communication styles, say so.
- Remind managers that it also matters who else is present when comments are made. Were the comments made just to the employee? In front of coworkers? In front of customers? Again, be specific in your communication guidelines.
Expert provides detailed discussion of documents necessary for compliance with OFCCP’s revised disability & veterans regulations
The process of compliance with the new requirements of the OFCCP’s revised regulations on protected veterans and workers with disabilities is “going to be a fairly easy transition for a good chunk of the [contractor] universe,” said OFCCP expert John C. Fox during the second part of a two-part webinar presented by the National Employment Law Institute (NELI). However, the transition will be “tough” for about 5 to 10 percent of that universe, he added. Both segments of the webinar were focused on providing a transactional approach to compliance.
The revised regulations were published in the Federal Register on September 24, 2013 (78 FR 58614–58679 and 78 FR 58682-58752). The VEVRAA rule revises the OFCCP’s regulations at 41 CFR Part 60-300 (and rescinds the outdated regulations at 41 CFR Part 60-250); the Section 503 rule revises the agency’s regulations in 41 CFR Part 60-741. The rules will require federal contractors to establish a 7 percent utilization goal for workers with disabilities (per job group) and a variable hiring benchmark for protected veterans (per establishment) as well as impose new data collection and recordkeeping requirements.
Although federal contractors and subcontractors will be required to comply with Subparts A, B, D, and E of both new rules by March 24, 2014, the obligations in Subpart C of the new rules will be phased in. Contractors with existing affirmative action programs (AAPs) on the effective date may wait to comply with the new requirements of Subpart C of both rules as part of their standard AAP review and updating cycle. In other words, contractors with AAPs in operation (mid-cycle) on March 24 do not have to create a new AAP on that date to comply with the new requirements, but rather can continue under the current rules until the conclusion of the annual AAP cycle. Nevertheless, contractors must still comply with all existing obligations under the current regulations while they are waiting for their new annual AAP cycle (and thus, the new requirements) to begin.
As previously reported in Employment Law Daily, in the first part of the webinar (Segment A), Fox reviewed the architecture of the new rules, effective dates and compliance deadlines, including whether starting early is advisable. He also discussed to what extent contractors may legally start compliance early, transitional AAPs, confidentiality requirements, and budget and staffing concerns.
External notices. Fox listed the following five external notices that contractors will need:
(1) Notification to labor organizations of the contractor’s obligations under VEVRAA and Section 503 (41 CFR §60-300.5(a)(10) and 41 CFR §60-741.5(a)(5));
(2) Notification to subcontractors and vendors of company policy related to the contractors affirmative action efforts (41 CFR §60-300.44(f)(1)(ii) and 41 CFR §60-741.44(f)(1)(ii));
(3) “Listing” (not “posting”) requirement with the appropriate employment service delivery system (ESDS) (41 CFR §60-300.5(a));
(4) VEVRAA pre-offer self-identification form (41 CFR §60-300.42); and
(5) Section 503 self-identification form for pre-offer stage (41 CFR §60-741.42).
The VEVRAA and Section 503 self-identification forms (items (4) and (5) above) were discussed in detail in Segment A of the webinar.
Because the notification to labor organizations (item (1) above) is a Subpart A requirement, compliance will be required whenever the contractor signs it first collective bargaining agreement (CBA) following March 24, 2014, he pointed out. Although the regulations are a “bit fuzzy” on this point, Fox thinks that contractors only have to send these notifications once. Thus, an employer that is presently a covered contractor, and has already sent these notifications, doesn’t have to do anything unless and until they sign a new CBA because this is not a new requirement.
The notification to subcontractors and vendors of the company policy related to the contractor’s affirmative action efforts (item (2) above) is a new requirement, Fox observed. For this notification, contractors may attach a copy of relevant AAP or include an appropriate description. The AAP is public anyway because the regulations require it to be disclosed to employees and applicants upon request, he said. This requirement is distinct from (i.e. not to be confused with) the requirement (contained at 41 CFR §60-300.5(d) and 41 CFR §60-741.5(d)) to incorporate specified EEO clauses into covered subcontracts, he pointed out.
The job listing obligation (item (3) above) is a requirement of the VEVRAA regulations that is not included the Section 503 regulations. VEVRAA, as amended by the Jobs for Veterans Act, requires covered contractors to list all employment openings — for jobs lasting longer than three days and not involving an executive or senior management position — with “the appropriate” ESDS as specified in the regulations.
It is important to note that regulations require contractors to “list” the jobs, rather than “post” the jobs, Fox advised, adding that it is the ESDS that “posts” the jobs, not the contractor. The revised regulations clarify that when listing their job openings, contractors must provide that information in a manner and format permitted by the appropriate state or local ESDS, so that the service can access and use the information to make the job listings available to job seekers. Most contractors use a third party “listing service” vendor to meet this requirement, he observed, adding that most contractors will continue to do so under the new rules.
A new obligation in the revised regulations requires contractors to send pieces of background info to the ESDS upon the first job listing: (1) the company is a federal contractor subject to VEVRAA; (2) the contractor desires priority referrals of protected veterans; (3) the name and location of each hiring location in the state; and (4) the contact information for the hiring officer at each location, including the identity of any third party search companies. When one or more of these four background pieces of information changes, the contractor must notify the ESDS.
Internal notices. Fox discussed the following five internal notices that contractors will need:
(1) Posting of rights for protected veterans and individuals with disabilities (IWDs) (41 CFR §60-300.5(a), para 9 and 41 C.F.R. §60-741.5(a), para 4);
(2) Notice of availability of AAPs to applicants and employees (41 CFR §60-300.41 and 41 CFR §60-741.41);
(3) VEVRAA post-offer self-identification form (41 CFR §60-300.42);
(4) Section 503 self-identification form for post-offer and post-employment invitations (41 CFR §60-741.42); and
(5) AAP policy statement (41 CFR §60-300.44(a) and 41 CFR §60-741.44(a)).
As stated previously, the VEVRAA and Section 503 self-identification forms (items (3) and (4) above) were discussed in detail in Segment A of the webinar.
Both new rules will require contractors to post notices stating “the rights of applicants and employees, as well as the contractor’s obligation under the law to take affirmative action to employ and advance in employment qualified employees and applicants” (item (1) above). The regulations will require these notices to be in a form prescribed by the OFCCP, “provided by or through the contracting officer,” but this form(s) has not yet been made available to the public, Fox noted.
Contractors may provide these notices electronically for employees with telework arrangements or for those who do not work at the contractor’s physical location if: (a) the contractor provides computers to these employees to access the posting, or (b) the contractor has “actual knowledge” that these employees may otherwise be able to access the electronic notice. Those contractors with employees who work “off the grid” — meaning that their work environment is so remote that they don’t have access to computers — will need to find a workaround to meet this requirement, Fox said.
Also, if a contractor uses electronic or internet-based application processes, an electronic notice of employee rights and contractor obligations must be “conspicuously stored with, or as part of, the electronic application,” the regulations state.
Providing notice of the availability of AAPs for inspection by applicants and employees (item (2) above) is not a new requirement, Fox noted. However, contractors do not have to include the data metrics that will be required by the new regulations at part .44(k) when providing access to the AAPs. If the requestor is able to access the electronic version of the AAP, then the contractor may provide it electronically.
The equal opportunity policy statement (item (5) above) must be included in the contractor’s AAP and must also be posted on company bulletin boards. There is a First Amendment issue lurking in the requirement that the policy statement “shall indicate” support of the AAP by the contractor’s “top United States executive,” Fox pointed out, explaining that this is a government requirement compelling the executive to express a certain viewpoint.
Advertising tag lines. The regulations (at 41 CFR §60-300.5(a) para 12 and 41 CFR §60-741.5(a) para 7) require contractors to state in all solicitations or advertisements for employees that all qualified applicants will receive consideration for employment and will not be discriminated against on the basis of protected veteran status or disability. There is a big debate as to whether employers should use acronyms, and if so which ones, in print media ads because print media still charges for ads by the keystroke, Fox said. In contrast, there is not a similar concern for electronic media ads because the rates for those ads are not based on cost per keystroke. In the end, the advertising lawyers in big newspapers will decide this issue by determining what they will accept and publish, Fox predicted.
The OFCCP’s February 20, 2014 webinar will discuss this issue, he noted. Since the regulations are silent on this point, however, the OFCCP doesn’t have the authority to dictate acronym usage, according to Fox. Nevertheless, the agency will be in a powerful position of leverage in audits since it won’t be worth the cost to litigate this issue, he said. The OFCCP’s Frequently Asked Questions for the new rules already clarify that the terms “veteran” and “disability” may not be abbreviated to simply using “V” and “D”; in agency’s view. “Vet” and “disabled” are the preferred terms.
Evaluations/surveys. Fox listed the following evaluations and surveys required by the revised regulations:
(1) Review of personnel processes (41 CFR§60-300.44(b) and 41 CFR §60-741.44(b));
(2) Self-assessment of outreach and recruitment (41 CFR §60-300.44(f)(3) and 41 CFR §60-741.44(f)(3)); and
(3) Data collection analysis (41 CFR §60-300.44(k) and 41 CFR §60-741.44(k)) .
A requirement carried over from the current regulations is for contractors to review their personnel processes “periodically” and “make any necessary modifications” to ensure that their obligations under the regulations are carried out (item (1) above). Since the regulations do not specify what the length of the review “period” should be, contractors need to determine this period on their own, Fox said. Appendix C of the VEVRAA rule contains a set of procedures which contractors may use to meet this requirement.
The current regulations require contractors to engage in outreach and recruitment of IWDs and protected veterans. Under the revised outreach and recruitment provisions, contractors will have the additional obligation to document their outreach and recruitment efforts and undergo an annual written assessment of their effectiveness (item (2) above). This obligation will require a contractor to evaluate whether the totality of its efforts is “effective” in identifying and recruiting qualified protected veterans and individuals with disabilities. In doing so, contractors must identify the criteria they have used to determine effectiveness and these criteria must at least include the .44(k) data metrics for the current year and for the two most recent years. It will take at least three years following the effective date of the regulations for the data pipeline as to this obligation to be completely filled, Fox noted.
This assessment is of the totality of the contractors efforts, not each single effort on its own, he stressed. This requirement is illustrative of OFCCP Director Patricia Shiu’s “primary and most emphatic point,” of these regulations, he said, which is that Shiu wants contractors to take a “nuanced and thoughtful approach” to the employment of veterans and the disabled, rather than merely following a series of checklists. Segment A of the webinar included some additional discussion of this requirement.
The annual data collection analysis (item (3) above) obligation will require the calculation of the data collections required by part. 44(k) of the new rules:
• number of IWD and protected veteran applicants;
• total number of applicants for all jobs;
• total number of job openings and jobs filled;
• number of IWDs and protected veterans hired; and
• total number of applicants hired.
This analysis does not have to be included in the AAP; Fox suggested finding a location for this analysis on a computer or human resources information system. Different forms will be required for the VEVRAA rule analysis and the Section 503 analysis because the 7 percent utilization goal for workers with disabilities will be assessed by job group and the variable hiring benchmark for protected veterans will be assessed by establishment.
EEO clauses. Under the revised regulations (at 41 CFR §60-300.5(d) and 41 CFR §60-741.5(d)), contractors may incorporate the required Section 503/VEVRAA equal opportunity clauses into covered subcontracts by reference to the regulations, only if they use the language specified in both regulations at part .5 (d). The specified language must be included in bold font.
Contractor may add their own language before and after the specified language, Fox advised, so long as they do not alter the OFCCP’s prescribed language.
A contractor may add a prelude sentence to the prescribed EEO clauses (whether recited in full or incorporated by reference) to note that the clauses attach to the contractor’s contract with its subcontractors “where applicable.” Although contractors might consider having two forms of subcontract language, one for those subcontractors who are not covered or which are not federal subcontractors and another for covered federal subcontractors, Fox advised against that approach because it would require parsing contract-by-contract to determine subcontractor coverage. Instead, he recommended that contractors use the “where applicable” language to encompass all covered subcontractors. Segment A of the webinar included some additional discussion of these EEO clauses.
Outsourcing. Generally, contractors could outsource 100 percent of the obligations under the new rules, Fox said, but he added that there is not really a lot of additional work to outsource to vendors once the contractor has managed the first year-transitions. He cautioned, though, that outsourcing does not relieve a contractor of any compliance failures. From a practical standpoint, contractors should determine whether vendors can effectively do the work, especially if the work requires intimate and detailed knowledge of the contractors employment practices, policies, culture, and HR systems/reports.
Moreover, in audits, the OFCCP is simply no longer going to accept checklists and form letters, but rather is now insisting on a nuanced or individualized approach. In particular, Fox stated that he does not think that outsourcing the outreach and recruitment requirements will pass muster in an OFCCP audit.
The webinar, presented on January 30, 2014, was the second segment (Segment B) of a two part program, entitled, “What You Need to do to Implement OFCCP’s Final Section 503/VEVRAA regulations: A Transactional Approach.” Segment A of the webinar was presented on January 23, 2014. Fox, a former OFCCP official and current president of Fox, Wang & Morgan P.C. in San Jose, California, provided sample forms and language for all of the notices and forms discussed in the webinar. The power points slides containing these samples, as well as re-broadcasts of both segments of the webinar, may be ordered by going to NELI’s website at www.neli.org.