By: Judith E. Kramer

In unveiling its semiannual regulatory agenda on April 26, the Department of Labor (“DOL”) announced its plans to propose regulations in each of its enforcement agencies that will place new requirements on employers. 

By: David S. Fortney

The U.S. Supreme Court, with surprising unanimity, ruled on May 24th that employers who use tests for employment decisions could face legal challenges each time the test results are used for those decisions.  (Lewis v. City of Chicago, U.S., No. 08-974, 5/24/10).   To read the article written by David S. Fortney in its entirety, please click here.

The U.S. Department of Labor (“DOL”) has issued its final rule regarding the new workplace notice about employees’ rights to organize and bargain collectively and to engage in other protected activity under the National Labor Relations Act (“NLRA”), as required by Executive Order 13496.  The rule requires all applicable federal contracts and modifications entered after June 19th to include a provision obligating federal contractors to post the new notice and to include the posting provisions in subcontracts (“flow down clauses”).  The rule replaces the Bush Administration’s “Beck notice” posting requirement.  In addition, federal contractors generally must change their contracting procedures to add the posting requirement contact provisions in federal subcontracts.

By: Kathleen J. Raynsford

OFCCP recently sent out another round of Corporate Scheduling Announcement Letters (“CSALs”) to the CEO’s of companies with two or more establishments selected to undergo a compliance evaluation during the next scheduling cycle.  You should notify your CEO’s office to be on the look out for this letter and to forward the letter to the appropriate HR/EEO and Legal corporate representatives so that any locations that are identified by the OFCCP letter can be reviewed promptly and the necessary audit preparations commenced.  Let us know if you have any questions about the CSAL process or how you should respond if you have received a CSAL letter.

 

As a reminder, compliance reviews can also be scheduled as a result of contract pre-award, an individual complaint, as part of the Corporate Management Compliance Evaluation or Functional Affirmative Action Plan initiative, because of an acquisition or merger, or when a compliance evaluation is “directed.”

 

 Click here to view a sample Corporate Scheduling Announcement Letter.

 

For assistance on affirmative action compliance, please feel free to contact Jill Smith at jsmith@workplacehr.org, telephone 202-689-1203 or any of the experienced counsel at Fortney & Scott, telephone (202) 689-1200, including:

David Fortney at dfortney@fortneyscott.com;
Kathleen Raynsford at kraynsford@fortneyscott.com;
Burton Fishman at bfishman@fortneyscott.com;
Judy Kramer at jkramer@fortneyscott.com.

The Department of Labor’s Employment and Training Administration and Wage and Hour Division implemented changes to the H-2A program, which were effective March 15, 2010.

One requirement is that employers with H-2A workers are now required to display the updated H-2A poster, identifying employee rights, where it can easily be seen by employees.

To view the new H-2A poster at DOL's website, click here.

For more information contact Susan Webman at FortneyScott, swebman@fortneyscott.com.

In the fall of 2009, the OFCCP issued three Notices of Proposed Rulemaking. The Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors; Evaluation of Recruitment and Placement Results Under the VEVRAA of 1974, as amended would implement the nondiscrimination and affirmative actions of VEVRAA and is scheduled to be effective in December 2010. To read the proposed VEVRAA rulemaking, please click here. The Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors: Evaluation of Recruitment and Placement Results under Section 503 would implement the nondiscrimination and affirmative action provisions of Section 503 of the Rehabilitation Act of 1973, as amended. It is scheduled to be effective in December 2010. To read the proposed Section 503 rulemaking, please click here.  The Constructor Contractor Affirmative Requirements would revise the regulations in 41 CFR § 60-4, making the affirmative action requirements of E.O. 11246 applicable to Federal and federally assisted construction contractors. This requirement is scheduled to be effective in January 2011. To read the proposed construction rulemaking, please click here.

On February 4, the Senate voted to confirm the nomination of Patricia Smith to be Solicitor of Labor. President Obama had announced Smith’s nomination to the Department of Labor in April 2009. Sen. Mike Enzi (R-Wyo.) argued against her confirmation saying that Smith, the commissioner of the New York State Labor Department, misled the Senate Health, Education, Labor, and Pensions Committee (“Committee”) during her May 2009 confirmation hearing when she presented at least four “significant inconsistencies” about a wage and hour program she developed in New York. Committee Chairman Sen. Tom Harkin (D-Iowa) stated that Smith did not intentionally mislead the committee. The vote (60-37) fell along party lines, with two independents joining Democrats. Also on February 4, in another party-line vote (13-10), the Committee approved the nomination of Craig Becker to be a member of the National Labor Relations Board. The Senate had sent this nomination back to the White House at the end of the 2009 session, which required the President to denominate him in January. Senator McCain has called Becker the “most controversial nominee I've seen in a long time” and has vowed to “do anything I can to block his nomination.” McCain cited Becker's published academic papers and noted the opposition to his nomination by the U.S. Chamber of Commerce, the National Association of Manufacturers, and the Wall Street Journal editorial board. The NLRB has been operating with just two members since the start of 2008 and has been fighting legal challenges to the authority of the two-member board to issue rulings. The U.S. Supreme Court has agreed in November 2009 to address the issue. Additionally, in a unanimous voice vote, the Committee approved the nomination of Cynthia Attwood to be a member of the three member Occupational Safety and Health Review Commission (“OSHRC”). President Obama had nominated Attwood in November. She has extensive Department of Labor experience, including her tenure as associate solicitor for occupational safety and health. Upon full Senate approval, the OSHRC will have three members for the first time in three years. Attwood’s term would continue through 2013.

WorkPlace HR will be closed on Monday, January 18th in observance of Martin Luther King, Jr. Day. Our office will re-open on Tuesday, January 19th at 9 a.m.

In the recent round of Corporate Scheduling Announcement Letters (“CSAL”)issued by the Office of Federal Contract Compliance Programs (“OFCCP”), there was an administrative error that erroneously included corporate headquarter establishments in the potential scheduling listing. The error was particularly confusing because the CSAL states “…the enclosed list does not include any establishments at your company that has been selected for evaluation…as part of the agency’s Corporate Management Compliance Evaluations (CMCE)…” The OFCCP has published a notice regarding this error on their website. For assistance on affirmative action compliance, please feel free to contact any of the experienced counsel at Fortney & Scott, telephone (202) 689-1200, including David Fortney at dfortney@fortneyscott.com , Kathleen Raynsford at kraynsford@fortneyscott.com, Judy Kramer, at jkramer@fortneyscott.com, or Susan Webman, at swebman@fortneyscott.com or Jill Smith of WorkPlace HR, telephone (202) 689-1203 or jsmith@workplacehr.org.

FortneyScott and Workplace HR are proud to support our military families this holiday season through Operation Homefront.