Ogletree Deakins, Littler Mendelson, Proskauer Rose top management firms in U.S. News-Best Lawyers® 2011-2012 rankings
November 8th, 2011 | Lisa Milam-Perez | Add a Comment
U.S. News and Best Lawyers® have released the 2011-2012 rankings of the nation’s “Best Law Firms.” For the first time, the “Best Law Firms” survey identifies one firm in each nationally ranked practice area as “Law Firm of the Year.” The designations are based on the firms’ overall performance in a given practice area and the firms’ significant showing in the publication’s 2011-2012 “Best Law Firms” research. For labor and employment litigation, Ogletree Deakins received “Law Firm of the Year” honors. Proskauer Rose was “Law Firm of the Year” for management-side employment law; Littler Mendelson earned the honor for the practice of labor law on behalf of management.
The following management-side law firms received First Tier recognition in Employment Law, Labor Law, and/or Labor and Employment Litigation:
Akin Gump Strauss Hauer & Feld (Labor)
Baker & Hostetler (Employment)
Baker Botts (Labor)
Barnes & Thornburg (Labor)
Bracewell & Giuliani (Employment, Litigation)
Brownstein Hyatt Farber Schreck (Litigation)
Cooley (Litigation)
Covington & Burling (Litigation)
Davis Wright Tremaine (Employment, Litigation)
Debevoise & Plimpton (Litigation)
Dorsey & Whitney (Employment)
Fisher & Phillips (Employment)
Fulbright & Jaworski (Employment, Labor)
Gibson, Dunn & Crutcher (Employment, Labor, Litigation)
Goldberg Kohn (Litigation)
Greenberg Traurig (Employment, Labor, Litigation)
Haynes and Boone (Litigation)
Holland & Knight (Employment)
Hunton & Williams (Employment)
Jackson Lewis (Employment, Labor, Litigation)
Jackson Walker (Litigation)
Jones Day (Employment, Labor, Litigation)
K&L Gates (Employment, Labor, Litigation)
Kamer Zucker Abbott (Litigation)
Kirkland & Ellis (Litigation)
Kleiman Lawrence Baskind Fitzgerald (Litigation)
Kramer Levin Naftalis & Frankel (Litigation)
Littler Mendelson (Employment, Labor, Litigation)
McDermott Will & Emery (Litigation)
Morgan, Lewis & Bockius (Employment, Labor, Litigation)
Morrison & Foerster (Employment, Litigation)
Nixon Peabody (Litigation)
Ogletree, Deakins, Nash, Smoak & Stewart (Employment, Labor, Litigation)
O’Melveny & Myers (Employment, Labor)
Orrick, Herrington & Sutcliffe (Employment)
Parker Poe Adams & Bernstein (Litigation)
Paul Hastings (Employment, Labor, Litigation)
Perkins Coie (Employment)
Phelps Dunbar (Litigation)
Proskauer Rose (Employment, Labor, Litigation)
Reed Smith (Employment, Litigation)
Seyfarth Shaw (Employment, Labor, Litigation)
Sidley Austin (Employment, Litigation)
Skadden, Arps, Slate, Meagher & Flom (Litigation)
Squire, Sanders & Dempsey (Employment)
Sullivan & Cromwell (Employment, Litigation)
Vinson & Elkins (Employment, Labor, Litigation)
Vorys, Sater, Seymour and Pease (Litigation)
Winston & Strawn (Employment, Labor, Litigation)
U.S. News-Best Lawyers® also ranks management-side law firms within 177 metropolitan areas across the United States. The survey does not list national rankings for law firms representing unions or individual employees. According to the description of the survey methodology, these were among the practice areas with minimal presence in particular markets, or insufficient data was collected for proper evaluation. The survey does provide rankings of employee- and union-side firms within metropolitan areas, however.
The “Best Law Firms” rankings are based on peer reviews from leading attorneys in each field, along with client and lawyer evaluations and a review of additional information provided by law firms as part of the formal submission process, according to the U.S. News–Best Lawyers® survey website. Attorney respondents voted on law firms’ expertise, responsiveness, integrity, cost-effectiveness, whether they would refer a matter to a firm, and whether they consider a firm a worthy competitor. Clients provided feedback on firm practice groups using a 1-5 scale on criteria such as expertise, responsiveness, understanding of client needs, cost-effectiveness, civility, and whether they would recommend another client to the firm. U.S. News–Best Lawyers® also looked at additional information submitted by the law firms, including their client profile, significant legal matters undertaken, and other information that reflects the firms’ practice area strengths. To be eligible for a ranking in the “Best Law Firms” survey, a law firm must have at least one lawyer who is included in Best Lawyers® as part of the annual peer review assessment.
Employment Law Daily congratulates the labor and employment law firms that earned “Best Law Firm” honors. We especially wish to congratulate our CCH Employment Law Daily Advisory Board Members Keith Watts, co-managing shareholder at Ogletree Deakins, and Will Anthony, partner at Jackson Lewis.
At long last, California high court to hear argument in Brinker case
November 7th, 2011 | Lisa Milam-Perez | 1 Comment
California wage-hour litigators will have all eyes on the state’s high court on Tuesday, November 8, as it takes up a meal and rest period wage-hour case that has been pending before it since 2008. While waiting out a resolution by the California Supreme Court in Brinker Restaurant Corp v Superior Court, employers have faced uncertainty as to what the law requires of them in order to satisfy their obligations under the California Labor Code’s meal period provisions. And courts have continued to split over whether, under those provisions, employers must affirmatively ensure that their employees take mandated breaks or simply ensure that the break is offered to them. Courts also have been divided on whether to grant a stay of cases turning on this issue pending a long-awaited ruling from above.
The July 2008 ruling in Brinker by the Fourth District Court of Appeals was a big win for California employers. That court held employers must make meal and rest periods available to employees and cannot impede, discourage or dissuade employees from taking them; however, once made available, the employer is not obligated to police their employees’ use of that time to ensure that the break periods are actually taken. The decision created a circuit split in California that led to tomorrow’s showdown. In Cicairos v Summit Logistics, Inc, the Third District, in 2005, held employers had an affirmative obligation to ensure that workers were actually relieved of all duty for meal and rest periods.
The Brinker decision reversed a grant of class certification to 59,000 restaurant employees who had alleged they were denied meal and rest breaks and forced to work off the clock. Significantly, since meal and rest breaks need only be made available to employees and the actual taking of breaks not enforced, there could be myriad reasons why employees did not take their breaks — reasons that could only be decided based on individualized inquiries on a case-by-case basis, the lower court reasoned — so claims over missed meal and rest periods thus were not amenable to class treatment. Therefore, in addition to establishing the standard of liability for employers in meal break claims, the matter before the California Supreme Court tomorrow is noteworthy on the class action front as well.
The supreme court agreed to review the Brinker ruling in October 2008; briefing was complete by 2010 — the court received at least 20 briefs in the case — but it took a good deal longer for the court to schedule argument. After tomorrow’s oral argument, the court is expected to issue a decision within 90 days.
Meanwhile, courts have been divided on whether to stay litigation pending its outcome. While some courts have been reluctant to stay wage actions — especially before oral argument had finally been scheduled, when it was unclear how long litigants would have to wait — several courts have put such cases (or decisions whether to certify a class in such cases) in a holding pattern. For example, in Gong-Chun v Aetna, Inc, a May 2010 ruling, a federal judge in the Eastern District of California granted the insurer’s motion to stay proceedings in an employee’s meal break wage suit. On August 30, 2011, another judge in that district granted Taco Bell’s request to stay a wage suit filed by restaurant employees pending the ruling in Brinker. However, earlier that month, a judge in the Central District of California denied H&R Block’s request that it defer certifying a class with respect to the employee’s meal and rest period claims in an class action brought under both state and federal law.
State courts that have ruled on the ultimate question while Brinker remains unresolved typically fall in line with the majority of their sister courts that have weighed in on such disputes, holding that employers are not required to affirmatively ensure that their employees take their meal breaks. In February 2011, a California appeals court in Tien v Tenet Healthcare Corp emphatically ruled on this key issue. “Tenet’s policies allowed meal periods. That policy satisfied Tenet’s legal obligation; [it] required nothing more,” the court wrote. Similarly, in Flores v Lamps Plus, Inc, a California appeals court in May 2011 held in favor of the employer on the issue. In so ruling, the court noted that it “would hardly be efficient to stall resolution of all class actions claiming meal and rest period violations in the interim.”
With the California Supreme Court’s decision in Brinker now imminent, California employers and litigators can look forward to some much-needed clarity on this vexing wage-hour issue.
U.S. Virgin Islands lack adequate protections for overseas workers?
November 4th, 2011 | Pamela Wolf | Add a Comment
The government of the Philippines has compiled a list of 41 countries deemed to have inadequate protections for Filipino workers deployed overseas – the U.S. Virgin Islands appears on that list.
Perhaps it’s a sign of the times – struggling economies, cheap labor demands, the rise in human trafficking – that the Philippine government has taken steps to prevent its workers from being exploited and abused overseas. Republic Act (RA) 10022 of 2009, which amended the Migrant Workers and Overseas Filipinos Act of 1995, which took effect on March 8, 2010, provides that deployment of overseas Filipino workers can only be made to countries with adequate protections in place for those workers:
The State shall allow the deployment of overseas Filipino workers only in countries where the rights of Filipino migrant workers are protected. The government recognizes any of the following as a guarantee on the part of the receiving country for the protection of the rights of overseas Filipino workers:
(a) It has existing labor and social laws protecting the rights of workers, including migrant workers;
(b) It is a signatory to and/or a ratifier of multilateral conventions, declarations or resolutions relating to the protection of workers, including migrant workers; and
(c) It has concluded a bilateral agreement or arrangement with the government on the protection of the rights of overseas Filipino Workers:
Provided, That the receiving country is taking positive, concrete measures to protect the rights of migrant workers in furtherance of any of the guarantees under subparagraphs (a), (b) and (c) hereof.
In the absence of a clear showing that any of the aforementioned guarantees exists in the country of destination of the migrant workers, no permit for deployment shall be issued by the Philippine Overseas Employment Administration (POEA).
On October 28, the POEA issued a list of 41 noncompliant countries. As I pondered the list of countries, which included Afghanistan, Cambodia, Cuba, Iraq, India, Libya, North Korea and Sudan, I wasn’t terribly surprised until I came to No. 39 – the U.S. Virgin Islands.
The U.S. Equal Employment Opportunity Commission exercises jurisdiction in the U.S Virgin Islands through its Miami District Office. Indeed, Title VII of the Civil Rights Act of 1964 applies to the Virgin Islands.
Earlier this year, the EEOC held a meeting at which a panel from government agencies and public interest groups, and a labor trafficking victim, discussed the problems in identifying, prosecuting and remedying the trafficking of people for the purpose of labor — whether bringing them from abroad under false promises of employment and wages, or from within the United States.
If that’s not enough to show at least an effort to make the U.S. and its territories safe for overseas workers, the U.S. Virgin Islands are also within the reach of the U.S. Department of Labor and the U.S Federal Courts. President Barack Obama is the territory’s Chief of State. The minimum wage rates in the islands are the same as the federal minimum wage rates.
Surely, this is enough to show that the U.S. Virgin Islands have “existing labor and social laws protecting the rights of workers, including migrant workers,” such as to meet at least one of the guarantees outlined by the POEA. Can U.S. oversight in these islands be so poor as to render them unsafe for foreign workers?
Non-passage of Paycheck Fairness Act, Dukes ruling puts increased emphasis on OFCCP enforcement initiatives, experts say
November 1st, 2011 | Cynthia L. Hackerott | Add a Comment
Because the Paycheck Fairness Act (PFA) has failed to pass Congress, the current OFCCP Director, Patricia A. Shiu, is extremely important to the White House politically, said John C. Fox, former OFCCP official and current president of Fox, Wang & Morgan P.C. in San Jose, California, at the National Employment Law Institute’s (NELI) Twenty-Ninth Annual Affirmative Action Briefing held in Chicago, Illinois. The PFA, a measure intended to create stronger incentives for employers to comply with equal pay laws and strengthen federal outreach and enforcement efforts, would have, among other things, imposed additional duties on the OFCCP and the EEOC. With the defeat of the Paycheck Fairness Act, the Obama Administration is transferring the political pressure from women’s groups to the OFCCP, according to Fox.
Another presenter at the briefing, Jon A. Geier, a partner in the employment practice department at Paul Hastings in Chicago, said that the U.S. Supreme Court’s decision this past June in Wal-Mart Stores, Inc v Dukes (94 EPD ¶44,193) has also heightened the OFCCP’s focus on compensation discrimination. In Dukes, the High Court held that a potential class of women, estimated at anywhere from 500,000 to over 1.5 million, should not have been certified; the named plaintiffs had sued Wal-Mart under Title VII alleging that women employed by the retail giant were paid less than men in comparable positions and receive fewer promotions to management. Although Dukes has made broad nationwide pay equity class actions virtually impossible, we have not seen the death knell of pay equity class actions, Geier asserted, noting that smaller, regionwide class action claims may still be possible.
In addition to being a member of the Obama Administration’s National Equal Pay Enforcement Task Force, along with officials from the EEOC, the Department of Justice, and the Office of Personnel Management, Director Shiu has undertaken several initiatives designed to unearth and remedy compensation discrimination.
Compensation data collection tool. One of the major OFCCP initiatives regarding compensation discrimination is its pending development of a compensation data collection tool. To that end, an Advance Notice of Proposed Rulemaking (ANPRM) was published in the Federal Register on August 10, 2011 (76 FR 49398-49401) seeking stakeholder comments on 15 specific inquiries related to the development and implementation of such a tool. The comment period on this APRM closed on October 11, 2011.
Geier reported that over 2400 comments were submitted in response to this ANPRM. He predicts that the proposal for this tool will come out around June of 2012, in time for election-year campaigning.
Scheduling letter/itemized listing changes. Another compensation discrimination initiative is the OFCCP’s pending proposal that would allow the agency to seek more, and more detailed, information from federal contractors during the desk audit phase of compliance evaluations. Notice of a revised proposal was published in the September 28, 2011 edition of the Federal Register (76 FR 60083-60084). The revised proposal addressed comments received regarding the OFCCP’s initial proposal issued in May of this year (76 FR 27670-27671) and, in response to those comments, contains several changes to the original proposal. However, neither of the Federal Register notices contained the content of the proposed revisions. Rather, the content of these revisions is revealed in supporting documentation for the notice provided to the Office of Management and Budget (OMB) by the OFCCP. The comment period on the revised proposal closed on October 28, 2011.
Once a federal contractor has been selected for an OFCCP audit, the agency sends its standard scheduling letter and corresponding itemized listing requesting the contractor to provide the OFCCP with its affirmative action programs and specified supporting documents and records. The scheduling letter and itemized listing and the contractor’s response to it are known collectively as the “desk audit” phase of a compliance review. The proposed revisions to the OFCCP’s scheduling letter, itemized listing and the OFCCP’s statement submitted to the OMB explaining the changes are posted on the Regulations.gov website. If the results of the desk audit reveal “indicators” of potential discrimination or other compliance issues, the OFCCP may dispatch a compliance officer to conduct an on-site review of the contractor.
New item 12. The itemized listing that accompanies the current OFCCP scheduling letter contains 11 items, and the proposed changes would increase this number to 13 items. In regard to compensation, the OFCCP is proposing to change what is currently item 11 of the itemized listing, which would become the new item 12. The changes would require a contractor to submit precise aggregate data rather than the disaggregate data requested in the current item 11. A submission of aggregated data would allow the OFCCP to perform more specific analyses, and pinpoint possible discrimination based on race or sex. The OFCCP states it will no longer ask for disaggregate compensation data, which required contractors to aggregate the data themselves, thereby increasing their burden. In addition, the disaggregate data was less effective in allowing the OFCCP to analyze compensation, according to the agency.
Geier noted that rather than summary data, the proposal would allow the OFCCP to get individual employee-level data by: (1) job group and job title, (2) individual race/ethnicity categories; and (3) base/salary plus merit increases, bonuses and other supplemental compensation. With the agency seeking these types of individual information, performance ratings will become critical and will increasingly be the focus of enforcement, Geier said. Employers will often say that pay increases are performance driven, but performance reviews can have an adverse impact on certain groups, Geier cautioned.
Disclosure/confidentiality concerns. Among the many concerns regarding the proposed new item 12 are concerns about confidentiality surrounding the production of compensation data. Fox explained that data submitted to the OFCCP at the desk audit stage of a compliance evaluation is subject to Freedom of Information Act (FOIA) requests from the public. Under current Obama Administration policy, federal agencies subject to FOIA have been instructed not to exert any applicable FOIA exemptions from otherwise required disclosures, Fox pointed out.
Director Shiu believes that the OFCCP has never had a “fair shake” in getting compensation data, and the agency’s initiatives reflect its attempts to collect data, which was previously unavailable at the desk audit stage of a compliance review, that may help identify compensation discrimination, Fox explained. However, gathering and evaluating compensation data is time consuming and expensive, both for contractors and the government, and, thus, the OFCCP’s focus on compensation discrimination is decreasing the total number of audits conducted by the agency. Fewer audits impacting fewer workers may also be a political problem for the Obama Administration, Fox said. Moreover, previous audits, including glass ceiling reviews, have rarely resulted in findings of pay discrimination.
Geier advised the audience to be proactive and conduct internal pay equity diagnostic reviews. “If you don’t have a model you are confident in defending when [the OFCCP/the EEOC/plaintiff’s attorney) knocks on your door, you are too late,” he warned. However, he emphasized that before conducting such reviews, there must be a prior commitment from senior leadership to fix any issues that are identified.
In addition, it is critical to maximize attorney-client privilege and work product protections for these internal reviews, Geier stated. He recommended: (1) using a special engagement letter; (2) creating a project team of internal subject matter and external experts; (3) creating communications protocols to establish attorney-client privilege and work product and following them consistently; (4) making certain that legal advice is actually provided (sometimes outside counsel may be needed); and (5) when completed, organizing project files and destroying them per company record retention policy. He also advised to anticipate that privilege may be waived, therefore, employers should be cautious about what they put on paper; employers cannot do anything about the numbers, but they should resist beating themselves up in their documentation.
Fox represents companies and tries cases in state and federal courts that involve primarily individual trade secret claims, employment contract disputes, wage-hour and employment discrimination class actions, wrongful termination, corporate investigations, and the use of statistics in employment matters. Fox previously served as Executive Assistant to the Director of the OFCCP, where he was responsible for all enforcement and policy matters.
Geier represents employers in all aspects of labor and employment law, but focuses his practice on advising federal contractors on their obligations under Executive Order 11246 and related statutes and regulations. He was the lead outside counsel for The Boeing Company in negotiating its nationwide settlement with the OFCCP in 1999.
NELI’s Twenty-Ninth Annual Affirmative Action Briefing was held in Chicago on October 20-21, 2011. For more information on NELI, including its publications and future programs, call (303) 861-5600 or go to NELI’s website at: http://www.neli.org/.
OFCCP proposed veterans regulations “pure affirmative action play,” says expert; agency undergoing “greatest moment of change”
November 1st, 2011 | Cynthia L. Hackerott | 1 Comment
The OFCCP has “turned up the heat dramatically” on hiring protected veterans, John C. Fox, president and a founder of Fox, Wang & Morgan P.C., said at the National Employment Law Institute’s (NELI) Twenty-Ninth Annual Affirmative Action Briefing held in Chicago, Illinois. Fox described the OFCCP’s pending proposal to revise its regulations regarding protected veterans as a “pure affirmative action play.” Over the course of the two-day briefing, Fox covered various aspects of OFCCP enforcement activities, describing recent developments as “the greatest moment of change in the history of the agency.”
VEVRAA regulations. Currently, the OFCCP is reviewing public comments on its notice of proposed rulemaking (NPRM) to revise the regulations at 41 CFR Parts 60-250 and 60-300 that implement the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA). This NPRM was published the Federal Register on April 26, 2011 (76 FR 23358-23425), and the comment period ended on July 11, 2011. The proposed changes would require contractors, for the first time ever, to establish annual hiring benchmarks (i.e. numerical targets) to assist in measuring the effectiveness of their affirmative action efforts, and it would increase data collection requirement on job referrals, applicants and hires. To this end, the proposed rule would require that all applicants be invited to self-identify as a “protected veteran” before they are offered a job.
In addition, the proposal would clarify mandatory job listing requirements, under which a contractor must provide job vacancy and contact information for each of its locations to an appropriate employment service delivery system. Among the outreach efforts that would be required is that contractors would have to enter into “linkage agreements” with the local veterans’ employment representative in the local employment service office nearest the contractor’s establishment. Contractors would also have to enter into a linkage agreement with at least one of several other listed organizations and agencies for purposes of recruitment and developing training opportunities and would have to consult the Employer Resources section of the National Resource Directory (a website which provides prospective employers access to veterans’ service organizations) existing job banks of veterans seeking employment, and other resources at all levels of government.
Fox said that the Obama Administration believes the use of job service centers are the linchpin for increasing the employment of protected veterans, but he reported that employers rarely find good candidates from job services centers.
Included in Fox’s detailed review of the provisions in the proposal was his observation that many actions considered to be “best practices,” including specified outreach and recruitment efforts and internal dissemination of policies, would become mandatory should the revisions be finalized as proposed.
Despite calls from some members of the contractor community to withdraw the proposal, the Office of Management and Budget (OMB) will approve it, Fox predicted. Contractors’ main concerns about the proposed regulations are that they focus on process over results and will be very burdensome and expensive to implement. According to Fox, the cost will be much more than the $560 per year per contractor that the OFCCP has calculated will be expended to comply with the proposal. The proposed regulations “won’t be terribly effective, but will be very costly to implement,” Fox said.
Contractors should expect to see similar provisions in the OFCCP’s upcoming proposal to revise its regulations at 41 CFR Part 60-741 that implement the nondiscrimination and affirmative action provisions of Section 503 of the Rehabilitation Act of 1973, Fox also advised.
FAAPs. A Functional Affirmative Action Program (FAAP) is an Affirmative Action Program (AAP) that is developed and prepared based on functional or business units within a corporate structure rather than an AAP based solely on an individual establishment location. Current OFCCP regulations permit contractors to negotiate with the OFCCP, subject to the approval of the OFCCP Director, for permission to use FAAPs (41 CFR §60-2.1(d)(4)). In the absence of an approved agreement under 41 CFR 60-2.1(d)(4), the regulations require contractors to develop, implement, and maintain a separate AAP for each physical location of an establishment with 50 or more employees.
The first procedural directive for processing contractor functional AAP requests (No 254) was approved by then OFCCP Director Charles James, Sr., on March 21, 2002, and the agency sent out it first FAAP on July 16, 2002. Under the policy articulated in that directive, more than 130 FAAP agreements covering more than 1800 functional or business units and approximately 2 million employees were approved.
However, according to Fox, the Obama Administration was very wary of these plans, believing them to be a way for contractors to largely avoid audits. In February of 2010, the OFCCP announced that it was not approving any new requests to develop or renew FAAP agreements while the program was under review.
On June 14, 2011, OFCCP Director Patricia Shiu issued a new FAAP directive (No 296). Under the policy stated in this new directive, approval of FAAP agreements is not automatic; rather, an agreement will be approved, for a three-year period, only if the OFCCP Director determines that the contractor’s overall operational structure, compliance history, and proposed functional AAPs meet the criteria set forth in the new directive.
The new policy does not contain a requirement that the contractor supply the FAAP to the OFCCP for review before the OFCCP’s approves its use, Fox observed. Rather, review of a contractor’s FAAP will occur in the event of a scheduled compliance review. Also, a contractor with an approved FAAP agreement must have had at least two functional units undergo a compliance evaluation during the three-year term of the agreement to be eligible for renewal of the existing agreement. Furthermore, as part of a FAAP agreement under the new policy, a contractor must submit to the OFCCP “its applicant flow, hire, promotion, termination and compensation data in a readable and usable electronic format when OFCCP conducts a compliance evaluation.” Under the previous policy, no disparity analysis was required, he noted.
Fox predicted that, under this new policy, the number of FAAP agreements will go down from the current number of approximately 130 to about 10 or 20 because FAAP agreements will no longer be a way to avoid audits. Those contractors who will enter into such agreements will do so because they fit the structure of their workforce, Fox said.
TRICARE provision in pending legislation. In June, the Senate Armed Services Committee approved a draft of the National Defense Authorization Act for Fiscal Year 2012 that would exclude TRICARE providers from OFCCP jurisdiction. TRICARE Management Activity (TRICARE) is a Department of Defense (DOD) Field Activity tasked with administering the TRICARE program, the DOD’s worldwide health care program for active duty and retired military service members and their families. The bill would exclude “TRICARE institutional, professional, and pharmacy network providers from being considered subcontractors for the purposes of Federal Acquisition Regulation or any other law, in order to maintain adequate TRICARE provider networks.”
An OFCCP directive (No 293) issued on December 16, 2010, maintains that TRICARE providers can be subject to OFCCP jurisdiction, and this issue is currently the subject of pending litigation. On October 18, 2010, a DOL ALJ ruled, in OFCCP v Florida Hosp of Orlando (ALJ Case No 2009-OFC-00002) that an acute care, not-for-profit hospital that contracted with a government contractor to provide medical services to military service members, their survivors, and their families as part of the TRICARE program was subject to OFCCP jurisdiction as a federal subcontractor. The case is currently on appeal to the Labor Department’s Administrative Review Board.
This legislative provision is not likely to survive, Fox said, noting that it would be unprecedented to exclude a whole industry from OFCCP jurisdiction. He also predicted that the OFCCP would prevail in the Florida Hosp of Orlando case.
Fox, president and a founder of Fox, Wang & Morgan P.C., represents companies and tries cases in state and federal courts that involve primarily individual trade secret claims, employment contract disputes, wage-hour and employment discrimination class actions, wrongful termination, corporate investigations, and the use of statistics in employment matters. Fox previously served as Executive Assistant to the Director of the OFCCP, where he was responsible for all enforcement and policy matters.
NELI’s Twenty-Ninth Annual Affirmative Action Briefing was held in Chicago on October 20-21, 2011. For more information on NELI, including its publications and future programs, call (303) 861-5600 or go to NELI’s website at: http://www.neli.org/.
