OFCCP Sends Final Version of Veterans Regulations to OMB

On Tuesday, July 30, OFCCP sent the final version of the agency's proposed revisions to its regulations regarding veterans to the Office of Management and Budget (OMB).  Approval by OMB is the final step before the revisions to the veterans regulations would become effective.

OFCCP first published its proposed revisions to the veterans regulations in April of 2011.  There were an extensive number of comments about the proposed revisions, including a substantial number of concerns raised by federal contractors and subcontractors and their representatives.  OFCCP had taken no formal action on the proposed revisions to the regulations until submitting the final version of its revisions on July 30.

There has been much speculation as to why there was such a delay in providing a final version of the regulations to OMB.  As we've noted on this blog, part of the delay may involve the fact that both OMB and the Department of Labor were without heads of their respective agencies until recently.  In fact, it only took 12 days from the time that Thomas Perez was confirmed as the new Secretary of Labor until OFCCP sent its final revisions to OMB.

It is not clear when OMB will act on OFCCP's submission.  OMB has the right to approve the final regulations as submitted, to deny approval if the regulations do not meet the requirements of the Paperwork Reduction Act or other laws, or to request revisions from OFCCP before approval.  While some commentators have speculated that the revised regulations may be approved some time in August, others have suggested that it may be later this year before these regulations are approved, if they are approved at all.

Documentation of OMB's receipt of the final regulations can be found on the reginfo.gov website at http://www.reginfo.gov/public/do/eoDetails?rrid=123242.  Unfortunately, there is no formal way to view the final version of the revised regulations until OMB makes a decision about these regulations or until OFCCP decides to release them to the public.

Perez Confirmed as Secretary of Labor

After months of waiting, and after some tense moments over whether the Democrats in the Senate would fundamentally change the rules of the Senate, Thomas Perez was confirmed as new Secretary of Labor on July 18, 2013.  Senate Republicans had been blocking Mr. Perez's confirmation since May, but his nomination finally was approved after both parties agreed to proceed to a vote on a number of controversial nominations.  Senate Democrats had threatened to implement the "nuclear option" in regard to presidential appointments by changing senate rules to thwart any possible filibuster on such nominations, but a compromise was reached at the last second, and a number of President Obama's appointees, including Mr. Perez, were approved during the week of July 15.

Mr. Perez faces a number of challenges upon joining the Department of Labor.  The Office of Federal Contract Compliance Programs (OFCCP) and other DoL agencies have a variety of controversial proposals that are waiting for final publication.  Among the proposed rules awaiting action are OFCCP's proposed revisions to the regulations regarding veterans and persons with disabilities.  When (or if) these proposals will see the light of day remains unknown.  Mr. Perez also needs to determine whether there will be any changes in the leadership team at DoL.  While nothing has been said in this regard, Mr. Perez appears to have a strong relationship with OFCCP head Patricia Shiu, and we expect she will continue in her role at OFCCP.

How to Set Priorities for an OFCCP Review

This article originally appeared in the May 2013 edition of the LocalJobNetwork "OFCCP Digest." It is the first of a two-part series.

Part 1 - Understanding How OFCCP’s Focus Areas Affect Setting Priorities

This article is the first of a two-part series. In this article, we’ll provide some general information on how to set priorities in preparation for an OFCCP review. In the follow-up article, we’ll discuss a number of specific items that should be priorities for all federal contractors and subcontractors.

The letter from the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) that opens an affirmative action compliance review sends many companies into a panic. There is concern over what must be submitted and when, how to prepare for questions that may occur, and how to deal with unexpected inquiries that may be part of the review. Many of these issues can be dealt with prior to the time a review actually begins if a company gives priority to the items that may be most important during a compliance review.

Supreme Court Limits Definition of "Supervisor" in Workplace Harassment Case

On Monday, June 24, the Supreme Court narrowed the legal definition of "Supervisor" as it applies to workplace harassment cases.  In Vance v. Ball State University, a 5-4 decision, the Court held that an employee must be able to take tangible employment actions in order to be considered a supervisor.

Title VII of the Civil Rights Act prohibits discrimination by employers based on protected characteristics such as race, color, religion, sex, or national origin. When workplace harassment based on a protected classification occurs, the standard for determining liability varies depending on who is committing the discriminatory acts. If the harassing employee is a co-worker, then the employer is only liable if the employer was negligent in controlling working conditions. If the harassing employee is a supervisor, the standard changes. Companies are much more likely to be liable for the actions of supervisors, who stand in as representatives of the company.

While companies remain liable for the actions of supervisors, the definition of who is a supervisor was narrowed and clarified by the Court.  The Court's decision indicated that only those who are empowered by the employer to take tangible employment actions against an employee can now be considered supervisors. In the past there was some debate if an employee was a supervisor if he or she only oversaw or assigned work, but now the supervisor must be able to take employment action as well. The actions the court lists as tangible employment actions include hiring, firing, demoting, promoting, transferring, or disciplining.

If the supervisor takes tangible employment action against an employee such as firing or demoting the employee, then the employer is always liable. However, if the supervisor didn't take a tangible employment action, the accused employer is only required to show that the employer took reasonable care to prevent and correct harassing behavior, or that the accuser unreasonably failed to take advantage of the preventative or corrective measures available.