OFCCP proposes revisions to regulations that would require a seven percent hiring goal for individuals with disabilities among other new obligations
December 15th, 2011 | Cynthia L. Hackerott | Add a Comment
A proposal that would require federal contractors (and subcontractors) to set a hiring goal of having seven percent of their workforces be people with disabilities was published in the December 9, 2011, edition of the Federal Register (76 FR 77056-77105). The Notice of Proposed Rulemaking (NPRM) contains the first major changes since 1996 to the OFCCP’s regulations at 41 CFR Part 60-741 that implement the nondiscrimination and affirmative action provisions of Section 503 of the Rehabilitation Act of 1973, as amended (Section 503). The proposed regulatory changes contain specific actions contractors would be required to take in the areas of recruitment, training, record keeping and policy dissemination. In a statement, the OFCCP characterized these requirements as “similar to those that have long been required to promote workplace equality for women and minorities.” In conjunction with the proposal, the OFCCP has issued a FAQ and a “fact sheet” that provide summary explanations regarding key elements of the proposal.
Goals. The proposal would establish, for the first time, a single, national utilization goal for individuals with disabilities. Specifically, federal contractors would be required to set a hiring goal of having seven percent of their employees be workers with disabilities in each job group of the contractors’ workforce. The FAQ and fact sheet state that the OFCCP invites public comment on this proposed goal, and on the potential use of a utilization range of between 4 percent and 10 percent in lieu of a single national utilization goal. To annually evaluate their utilization of individuals with disabilities, the NPRM proposes that contractors use the job groups established for utilization analyses under Executive Order (E.O.) 11246. The proposed goal is derived primarily from disability data collected as part of the Census Bureau’s American Community Survey (ACS). According to the OFCCP, the goal is neither a quota nor a hiring ceiling, and a failure to attain the goal does not constitute a violation of Section 503 or OFCCP regulations. Rather, the goal will provide both contractors and the OFCCP with a quantifiable measure for assessing success in recruiting and employing individuals with disabilities. In other words, the goal would function as a tool to help identify any remaining barriers to equal employment.
The OFCCP is also seeking public comments on the possible inclusion of a two percent sub-goal for individuals with certain particularly severe or targeted disabilities. The agency is seeking feedback on both the concept of using a sub-goal and on the disabilities that should be included in such a sub-goal.
Data collection. The proposal is designed to improve collection of data on employment of people with disabilities by modifying the invitation for workers to self-identify by requiring that contractors invite all applicants to voluntarily self-identify as an “individual with a disability” at the pre-offer stage of the hiring process. Contractors also will be required to invite post-offer voluntary self-identification and to survey all employees annually in order to invite their self-identification in an anonymous manner. According to the OFCCP’s FAQ, an employee may become disabled at any time or may feel more comfortable self-identifying once he or she has been employed for some time. An anonymous annual survey will likely increase the employee response rate and, thereby, provide the most accurate data possible to assist contractors and the OFCCP in evaluating and refining the contractor’s affirmative action efforts.
The agency maintains that collection of this enhanced data will allow the contractor and the OFCCP to better identify and monitor employment practices with respect to individuals with disabilities. The NPRM provides that OFCCP will prescribe the language that contractors will be required to use when inviting self-identification and publish it on the OFCCP website. The agency is seeking public comment on proposed text for an invitation to self-identify.
The NPRM also recommends that contractors collect and maintain several measurements and comparisons related to individuals with disabilities, including the:
- number of individuals with disabilities referred to them by One-Stop Career Centers or other appropriate employment delivery system(s);
- number of individuals with disabilities referred to them by other entities, groups or organizations with which the contractor has a linkage agreement;
- number of individuals with disabilities that applied for positions with the contractor; and
- number of individuals with disabilities hired by the contractor.
Recordkeeping. Under the proposal, contractors would be required to maintain records on the number of individuals with disabilities applying for positions and the number of individuals with disabilities hired.
Accommodation requests. For the first time, the proposed revisions would require that contractors develop and implement written procedures for processing requests for reasonable accommodation. Such procedures will assist contractors in consistently satisfying their reasonable accommodation obligations, the OFCCP asserts, adding that having these written procedures will assist the contractor in consistently satisfying its reasonable accommodation obligation by serving as a “blueprint” for the prompt handling of reasonable accommodation requests. The procedures will ensure that job applicants and employees receive clear instructions on how to request reasonable accommodation, the maximum amount of time for processing a request and, if the request is denied, the reason for the denial.
Outreach. The NPRM would require contractors to engage in a minimum of three specific types of outreach and recruitment efforts to recruit individuals with disabilities. In addition, contractors would be required to review, on an annual basis, the effectiveness of their efforts in identifying and recruiting individuals with disabilities and document this review.
Job listings. Pursuant to the proposal, contractors would have to list all job openings, with limited exceptions, with the nearest One-Stop Career Center or other appropriate employment delivery systems. According to the OFCCP, this mandatory job listing requirement for Section 503, which is virtually identical to the requirement in the regulations implementing Section 4212 of the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA), would benefit both the contractor and the disability community by improving the contractor’s ability to attract qualified applicants with disabilities.
Annual reviews. The proposal details steps that contractors would be required to take to review their personnel processes, as well as their physical and mental job qualifications. Such steps are only recommended under current regulations. Contractors would be required to conduct both of these self-reviews “annually,” rather than “periodically” (as required by the current regulations), and to document specific review actions and their results.
ADAAA updates. The NPRM would also incorporate updates made necessary by the ADA Amendments Act (ADAAA) of 2008. The ADAAA amends both the ADA and the Rehabilitation Act with respect to the definition of “disability” and related issues. Consequently, the proposal includes revisions that are needed to make the Section 503 regulations consistent with the ADAAA and with the revisions to the ADA implementing regulations made by the Equal Employment Opportunity Commission in March 2011.
Compliance evaluations. To improve the OFCCP’s efficiency in conducting compliance evaluations, the NPRM proposes to permit the OFCCP to review contractor records for compliance checks and focused reviews either on-site or off-site, at the OFCCP’s discretion. The NPRM also proposes a new procedure for the conduct of pre-award compliance evaluations which would bring the Sec. 503 regulations into alignment with the pre-award compliance evaluation procedures contained in the EO 11246 regulations.
Public comments. Comments on the NPRM are due by February 7, 2012, and may be submitted via the federal e-rulemaking portal at www.regulations.gov. Comments also can be submitted by mail to Debra Carr, Office of Federal Contract Compliance Programs, U.S. Department of Labor, Room C-3325, 200 Constitution Ave. NW, Washington, D.C. 20210. All comments should include identification number (RIN) 1250-AA02.
In addition to the FAQ and fact sheet, other website links related to the proposal are posted at: http://www.dol.gov/ofccp/regs/compliance/sec503/Sec503_Media_Release_2011-12-07.htm.
OFCCP webinar. On Tuesday, December 20, the OFCCP will host a webinar to discuss the NPRM. The informational session will take place 2:00 PM – 3:30 PM EST. During the presentation, Policy Branch Chief Naomi Levin will review the highlights of the proposal and discuss how to provide comments on the proposed rule. To reserve a space for the webinar, go to:
https://www1.gotomeeting.com/register/363191569.
Public employees: public flogging abates, but guillotine awaits
December 7th, 2011 | Lisa Milam-Perez | Add a Comment
As 2010 drew to a close, the public discourse was at a boiling point with talk of the well-heeled public worker, who had replaced the Wall Street fat cat as the scapegoat for our nation’s economic woes. The hysteria came to a head in 2011, as states rushed to rein in the excesses of the overpaid civil servants in their midst. State legislatures across the nation introduced hundreds of measures to restrict public employee bargaining, and at least twelve states (Wisconsin and Ohio being the most notorious) sharply curbed bargaining rights.
Since that time, the boil has reduced to a simmer. Ohio voters soundly pushed back against a measure restricting public employee bargaining rights. And some of the public’s blood thirst seems to have been assuaged by the fact that public workers have endured the overwhelming bulk of our nation’s job cuts, while their long-promised, long-envied government pensions have taken correspondingly sharp hits.
Moreover, in the realm of public opinion, cooler heads (i.e., the policy wonks) have begun to prevail. A steady flow of research in recent months continues to peck away at some of the negative myths surrounding public employees. For example:
• The Center on Budget and Policy Priorities put a human face on the beleaguered state and local government worker in an October fact sheet: “By far the largest share of state and local government workers are the nearly 7 million teachers, aides, and support staff working in the nation’s elementary, middle, and high schools. Other prominent categories of state and local employment are protective services (including police officers, fire fighters, and correctional officers), higher education, health care (including nurses and other workers at public hospitals and clinics), and transportation (including road maintenance workers and bus drivers.”
• Undermining claims of public employment as a reflection of the rise of Big Government, over the last 30 years, the number of state and local workers has grown only slightly relative to the overall population, from about 59 per 1,000 workers in 1980 to 61 per 1,000 in 2011. All of that growth is attributed to the education sector, and reflects demographic changes and policy initiatives, such as efforts to reduce class sizes and serve special-needs students. State and local government workers as a share of the workforce has been relatively steady since 1979, and the number of state and local workers outside the education sector has declined relative to the overall population. (Notably, since the economic collapse of August 2008, the total number of state and local government employees has declined by more than 646,000.)
• Although regularly derided as overpaid, a study released in October by the Center for State and Local Government Excellence found that the compensation of state-local workers is comparable to that of their private-sector counterparts. State and local workers have a wage penalty of 9.5 percent, and though pension contributions and retiree health insurance help close the gap, total compensation for these public employees is about 4 percent less than in the private sector. The spread expands to 4 to 11 percent when compared to private-sector workers with similar education, job tenure, and other characteristics. And while the average pay for all public employees exceeds that of all private workers, this reflects the fact that public-sector jobs are much more likely to require higher education. State and local employees are twice as likely as private-sector workers to have a college or advanced degree.
• UC Berkeley’s Institute for Research on Labor and Employment, in an October analysis of the relationship between public sector unions and state budget deficits, found that large state deficits were due in large part to the decline in house prices and the economic downturn, not because of public workers and their unions. Public sector compensation as a share of public budgets has not grown; in fact, as a share of state budgets, it has actually declined.
• Those big, fat pensions aren’t quite as bloated as they seem. Boston College’s Center for Retirement Research found that despite the widespread perception that government workers receive high pension benefits, most households with state-local government retirees end up retiring with funds that are well below what is needed to maintain preretirement living standards.
• Turning our attention to the federal workforce, a recent analysis by the Project on Government Oversight has debunked the notion that privatizing government services saves taxpayers money. In a recent study, it found that in 33 of 35 occupational classifications, federal government employees were less expensive than contractors, and federal agencies paid out billions more to hire contractors to perform work that government employees could have done. In fact, on average, contractors charged the federal government more than twice as much than the amount that it pays federal workers. Incidentally, private sector compensation was lower than actual contractor billing rates in all 35 classifications. That’s because private contractors are also allowed to bill federal agencies for a share of their top executives’ pay, up to $700,000.
Which raises another point: the wage gap between the top brass and the rank and file is far wider in the private sector. And maybe that’s the real crux of the problem, for some. It’s not that public employee compensation is unfair; it’s that it isn’t.
Yet, while public workers have braved the public flogging, not all will survive the guillotine. The public employee ranks continue to dwindle: early November figures showed 162,373 government layoffs in 2011 so far—three times more cuts than the financial industry, which came in at a distant second, with 54,510 cuts.
That means we may have to find other scapegoats in 2012.
Call it “science,” call it “religion,” either way, Intelligent Design discussion at work gives rise to religious bias claim
December 2nd, 2011 | Pamela Wolf | Add a Comment
In an interesting twist, an employee of a NASA contractor, who claims he was merely discussing with coworkers the “scientific theory of life’s origins known as Intelligent Design” when his employer accused him of “pushing religion” and took adverse action against him will be able to present his claims of “religious discrimination” and retaliation to a jury.
You may recall that in 2005, after a high profile six-week trial, a federal judge in Pennsylvania concluded that Intelligent Design (ID) is not science and cannot be divorced from its creationist and thus, religious, antecedents (Kitzmiller v Dover Area Sch Dist, December 20, 2005, Jones, III, J). The judge therefore rejected as unconstitutional the efforts of the Dover Area School Board to inject ID into its science curriculum.
Employee “pushing” ID. In this case, an information technology specialist for Jet Propulsion Lab, a NASA contractor, was apparently telling his coworkers about ID with persistent enthusiasm. In a lawsuit filed in a California trial court, he claims he was demoted, disciplined, and ultimately terminated for discussing the “scientific theory” of ID, which he was told amounted to “pushing religion” in violation of the company’s anti-harassment policies. His claims of religious discrimination and retaliation survived summary judgment (Coppedge v Jet Propulsion Lab, November 18, 2011, Hiroshige, E). Noting that the distinctive facts of the case, including the perception of ID as a religion by various coworkers, required an inquiry into the mental states of individuals that would be inappropriate for summary judgment, the court also found there was sufficient evidence to conclude triable issues arose as to whether the employer’s reason for the adverse employment action was a pretext.
Allegations in complaint. In his amended complaint, the employee claimed that after he discussed ID with coworkers he was charged with violating his employer’s anti-harassment and ethics policies for promoting his religious views. He was told that his discussions and his distribution of certain documentary films amounted to “pushing religion” and were “unwelcome” and “disruptive.” The employee alleged that he was ordered not to discuss ID, religion, or policies under threat of termination, and, thereafter, he was stripped of his team leadership position.
While the employee alleged in his complaint that his interest in ID was “consistent with the goal of JP’s space exploration missions,” supervisors asserted that coworkers complained that he was “pushing his religious views on them by discussing ID and offering them the DVDs to use.” Allegedly, a supervisor stated that “Intelligent Design is religion,” after telling the employee he would be terminated if he continued “pushing [his] religion.” Thereafter, the employee complained to an ethics officer, and was contacted by the employee relations office. While the employee thought the purpose of that meeting was to discuss the conflict with the supervisor, the employee relations officer was, in point of fact, interviewing the employee about his interactions with coworkers about ID. According to the complaint, following the investigation the employee received a written warning stating he had approached coworkers during business hours to discuss his religious and political views, and those were reported as harassing in nature.
Although the employee claimed that he was never told the discussions were unwelcome, he was told it was his duty to interpret coworkers’ body language and was informed that his conduct had violated the company’s unlawful harassment policy and ethics and business conduct policy. As a result, he was demoted from his team lead position. Although the written warning was eventually expunged, he was not restored to his team lead position, the employee alleged. The employee filed suit against the employer and other defendants, alleging religious discrimination and retaliation, harassment, wrongful demotion in violation of public policy, as well as other claims. In response, the employer filed a motion for summary judgment.
Adverse actions. As an initial issue, there were triable issues of fact as to whether the employee’s demotion, written warning, negative performance evaluations, and ultimate termination were adverse employment actions, the court concluded. There was evidence that the team lead had substantial responsibility, and thus, a trier of fact could conclude that his removal from that role was an adverse employment action, the court suggested. Furthermore, while the written warning and negative performance evaluations might not be actionable on their own, taken in context of the employer’s discriminatory response to the employee’s religious views or protected activity, they could be actionable, the court ruled. Moreover, there was a close temporal proximity between the employee’s demotion and his interaction with the supervisor centering on his religious beliefs and speech and, consequently, the court concluded the employee stated a prima facie case for discrimination.
Pretext. Furthermore, there was sufficient evidence to suggest that the employer’s rationale for the adverse employment actions was a pretext for discrimination, the court ruled. While the employer asserted that he was terminated due to longstanding dissatisfaction with his interaction with colleagues and his persistence, there was contrary evidence. For example, there was evidence that the employee had received positive performance evaluations, which would be inconsistent with a longstanding issue and suggested that he was tactful and that others were not offended by his conversation. Consequently, the court found that in light of the “distinctive facts of this case, particularly Plaintiff’s alleged ‘pushing’ of Intelligent Design and the perception of Intelligent Design as a religion by various co-employees, this determination requires adjudication,” the court wrote. Moreover, there were shifting reasons for the employer’s actions, as evidenced by the written warning that was later rescinded. Consequently, the employer’s motion for summary judgment was denied as to both the discrimination and retaliation claims.
Does the religion/science distinction matter? This is an unusual case because the employee has asserted both that ID is science, and thus, not religion, on the one hand, and on the other, that it’s either worthy of protection as religion, or as perceived religion. The employer, believing ID is religion, asserted that the decisionmakers and the employee were all in the same protected category of “Christians,” and thus, the decisionmakers could not have harbored discriminatory bias — an argument the court rejected due to the diversity of Christianity and the possibility of differing views on Christianity and ID. The court does not directly address the religion/science distinction, treating the employee’s discussions instead as having religious content. The employer’s perception in this case that the employee’s ID discussions were religious was certainly enough to raise the question of whether it took adverse employment actions against the employee based on the perceived religious content of his ID discussions.
Supreme Court to consider exempt status of pharmaceutical reps
November 28th, 2011 | Lisa Milam-Perez | Add a Comment
Agreeing to consider a contentious wage-hour issue that has divided the circuits, the U.S. Supreme Court on Monday, November 28, granted a petition for writ of certiorari in Christopher v SmithKline Beecham Corp (Dkt No 11-204), a case focusing on the exempt status of pharmaceutical sales reps under the FLSA. The High Court will decide “whether the Fair Labor Standards Act’s outside sales exemption applies to pharmaceutical sales representatives,” an issue that it had declined to consider in February 2011, when it denied cert in Novartis Pharmaceuticals Corp v Lopes (Dkt No 10-460) and let stand a Second Circuit ruling that Novartis sales reps were not covered by either the administrative or outside sales exemption.
The Supreme Court will also consider “[w]hether deference is owed to the Secretary’s interpretation of the Fair Labor Standards Act’s outside sales exemption and related regulations.”
In the opinion below, the Ninth Circuit ruled pharmaceutical sales reps (PSRs) were exempt from FLSA overtime pay requirements under the outside salesperson exemption, in direct contrast to the Second Circuit’s 2010 holding in In Re Novartis. The Ninth Circuit refused to give deference to a DOL amicus brief submitted in Novartis, in which the agency took the position that the outside salesperson exemption did not apply to PSRs. An agency is not entitled to deference where it simply parrots statutory language, the Ninth Circuit stated, and in its effort to define “sales” in its regulations clarifying outside salesperson, the DOL just that, the appeals court reasoned. Moreover, prior to Novartis, the Secretary of Labor had, for the past 70 years, acquiesced to the practice that “detailing” (a term used for the work of PSRs) was considered sales, the Ninth Circuit observed.
“PSRs are driven by their own ambition and rewarded with commissions when their efforts generate new sales. They receive their commissions in lieu of overtime and enjoy a largely autonomous work-life outside of an office,” the appeals court concluded. “Even though PSRs lack some hallmarks of the classic salesmen, the great bulk of their activities are the same, as is the overarching purpose of obtaining a commitment to purchase (prescribe) something.”
In Novartis, the Second Circuit had found that the pharmaceutical reps were not exempt because they did not actually sell the company’s products to physicians and, thus, their duties did not include “the exchange of goods or services, contracting to sell any good or service, consigning for sale of any good or service, or obtaining orders or contracts for the use of facilities.” In its unsuccessful petition for cert, Novartis had urged the Supreme Court to take its case lest the Second Circuit’s standard would become the national “default” rule, “undermining the Congressionally created balance between exempt and nonexempt employees” and “disrupting a major American industry” in the process.
The U.S. Chamber of Commerce and Pharmaceutical Research and Manufacturers of America have filed amicus briefs in support of the respondent, SmithKline Beecham.
Avoiding the naughty list: office party suggestions for nice employers
November 28th, 2011 | Lorene Park | Add a Comment
Tis the season when many thoughtful employers show their holiday spirit by throwing a party for employees. There are many benefits to such events, from showing employees appreciation for hard work to fostering team spirit and boosting morale. However, even the most well-meaning company can make the naughty list if it does not work to avoid some of the problems inherent in such festivities. Some of the issues that should be considered include:
- Invitations: Think twice before inviting only some employees and not others to the holiday party – for example, the failure to invite women residents to a party celebrating a hospital’s new residents supported a gender discrimination claim (Tuli v Brigham & Women’s Hosp). By contrast, another federal district court recently stated that being excluded from a holiday party was too trivial of an action to support an employee’s retaliation claim (Mahoney v Donovan).
- Attendance: Do not make holiday party attendance mandatory – particularly if the party has a religious theme. Several states have laws that allow workers to opt out of meetings where employers communicate their views on religion. In addition, requiring attendance at a party with a religious theme could be seen as discriminatory against employees who practice other religions.
- Flirting: Caution employees and managers to act professionally. Sexual harassment suits often include allegations of sexually suggestive or offensive comments made at office parties (e.g., Spikes v La State Univ). Although stray comments made at holiday parties are unlikely, by themselves, to support a hostile work environment claim; such comments will be taken into consideration along with other evidence.
- Santa’s lap: Similarly, if you are going to have a Santa Claus at your holiday party, think twice before having employees sit on his lap. In one recent California Court of Appeals case, an employee alleged that having women sit on the lap of a manager dressed as Santa Claus was part of a sex-based hostile work environment. The jury bought that claim, although the court later rejected it since the employee herself was not asked to sit on his lap (Brennan v Townsend).
- Alcohol: If you serve alcohol, consider limiting consumption by, among other things, having a cash bar rather than an open bar and offering beer and wine instead of liquor with higher alcohol content. Avoiding overindulgence by employees will not only help avoid inappropriate behaviors or comments that could later support harassment claims; but it could also avoid liability for drunk driving. Some states have laws that hold social hosts liable for accidents caused by drunken guests if the host continued to serve alcohol to someone appearing intoxicated and likely to drive home. In addition, employers could be held liable for injuries caused by an employee’s drunken negligence under the doctrine of respondeat superior if attending the party was considered part of the job.
- Extravagance: If you are terminating employees around the holidays for the stated reason that the company has to cut back on expenses, consider cutting back on what you spend on the holiday party as well. Some plaintiffs have argued that the extravagance of a holiday party coming on the heels of a termination or RIF was evidence that the employer’s stated reason for the RIF – financial difficulties – was pretext for discrimination.
Last but not least, let employees know that most of the employer’s expectations concerning appropriate conduct in the office also apply at office parties, notwithstanding the merriment. Just in case, it might also be a good idea to avoid hanging mistletoe.
