Recent News

On December 16, 2020, EEOC expanded its COVID-19 guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, to respond to employer questions about the use of the new COVID-19 vaccine.

The guidance focuses on how employers who wish to mandate the COVID-19 vaccine can avoid liability under the Americans with Disabilities Act, Title VII of the Civil Rights Act, and the Genetic Information Nondiscrimination Act (GINA).

Employers must provide a reasonable accommodation under the ADA for those whose disabilities prevent them from taking the vaccine, such as seeking an alternative, perhaps remote role. If the employer cannot accommodate these employees, the employer can remove the employees from the workplace if it can show the unvaccinated employees would pose a “direct threat” to the workplace, but should not automatically terminate them. Rather, the employer should exhaust all leave and other options available to the employees. The employer likewise must provide reasonable accommodation to those whose sincerely-held religious beliefs do not allow them to take the vaccine. If the religious accommodation would be an undue hardship, again, the employer may ban the employee from the workplace but, again, may not automatically terminate them without exhausting other available options.

While taking the vaccine will not be considered a medical examination under the ADA, EEOC cautions employers that the vaccine pre-screening questions asked by the employer must be “job-related and consistent with business necessity.” The agency also cautions employers to avoid asking questions about employees’ genetic information either as part of the prescreening questions or in the certification of vaccination.

Our affiliate, FortneyScott is a co-founder of The Institute for Workplace Equality, and The Institute has facilitated this important meeting with OFCCP on October 22nd to address the new EO limiting diversity and inclusion training and other developments. Read more and register.

During the global pandemic, organizational leaders and HR professionals have been challenged with managing a remote workforce. Along with increasing social justice issues and concerns raised by the Black Lives Matter (BLM) movement, organizational leaders are now focusing their diversity, equity, and inclusion (DEI) efforts on ensuring remote workers not only feel included in the efforts but are included as well.

Why inclusion matters

Having workplace diversity is becoming a more desired outcome for employers. They recognize that a collaborative and creative work environment not only drives business growth but also increases sustainability in a competitive space.

As leaders focus on diversity efforts, however, they often fail to zero in on inclusion, which is an essential and key component to successful DEI programs. Inclusion matters and affects not only how workers feel but also how engaged they are with their work and their commitment to their employer. According to Gartner Research, a 20% increase in organizational inclusion translates into:

• A 6.2% increase in on-the-job effort;
• A 5% increase in an employee's desire to stay with an organization; and
• A 3% increase in individual job performance.

3 ways to boost inclusion in remote workforce

Here are three key ways to increase and support inclusion in your remote workforce:

• Establish ERGs. Employee resource groups (ERGs) are identity or experience-based groups that build community. They're very useful in developing DEI programs because they provide an opportunity for employees who share common identities to meet and support one another while building a sense of inclusion within an organization. The groups can be a valuable resource and help employers to learn and identify employee perceptions, concerns, and activities.
• Create sense of belonging. Having a sense of "belonging" is an important and critical factor for developing and improving workplace inclusion. The overwhelmingly large percentage of employees working remotely still need to feel they're valued and cared for within the organization. HR leaders should ensure managers and supervisors interact with their workers and teams on a consistent basis.
  
  You can create a sense of belonging by recognizing and acknowledging good work or accomplishments and hosting virtual team meetings. During the gatherings, try to simulate interactions that would typically occur in the workplace, such as "coffee breaks," which would naturally allow workers to convene and interact with one another.

• Talk about inclusion. It's vital for organizational leaders to understand their role in ensuring and supporting inclusion with a remote workforce. A crucial step is to communicate the organization's position on inclusion.
  
  Maintaining consistent and effective communication is "key" to worker engagement and trust. They need to hear from leaders, HR partners, and managers. Be consistent in practice, and follow through on any communicated promises.

Takeaway

With remote work continuing because of the pandemic and DEI efforts strengthening because of #BLM, you must find ways to ensure your entire workforce feels included.

On September 22, 2020 the “Executive Order on Combating Race and Sex Stereotyping” was signed and released by the President of the United States. This order will have a significant impact on efforts of HR Practitioners have regarding Diversity, Equity & Inclusion training within their organizations. The Executive Order applies to federal contractors, federal agencies and the military.

The Executive Order stated that it is seeking “to combat offensive and anti-American race and sex stereotyping and scapegoating”. Therefore, mandated Diversity, Equity & Inclusion trainings should be free of the following:

• "Divisive concepts" means the concepts that:
  • one race or sex is inherently superior to another race or sex;
  • the United States is fundamentally racist or sexist;
  • an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
  • an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
  • members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
  • an individual's moral character is necessarily determined by his or her race or sex;
  • an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;
  • any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or
  • meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race. The term "divisive concepts" also includes any other form of race or sex stereotyping or any other form of race or sex scapegoating.
• "Race or sex stereotyping" means ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex.
• "Race or sex scapegoating" means assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex. It similarly encompasses any claim that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.

Needless to say the Executive Order has caused a great deal of concern and confusion for HR Practitioners, not only with regards to what it requires of federal contractors and agencies, but also as to what additional information may be requested, the request to review of materials, what is the effective date and the fact that the Office of Federal Contract Compliance Programs has already established a hotline to investigate complaints. However, the bigger question, is:

Does Executive Order 13950 prohibit unconscious bias or implicit bias training?

Unconscious or implicit bias training is prohibited to the extent it teaches or implies that an individual, by virtue of his or her race, sex, and/or national origin, is racist, sexist, oppressive, or biased, whether consciously or unconsciously.
Training is not prohibited if it is designed to inform workers, or foster discussion, about pre-conceptions, opinions, or stereotypes that people - regardless of their race or sex - may have regarding people who are different, which could influence a worker’s conduct or speech and be perceived by others as offensive.

WPHR in partnership with our affiliated law firm, FortneyScott is working with clients to submit additional questions for the Agency to include in future FAQs, and strongly recommends that federal contractors have legal counsel review their Diversity, Equality and Inclusion training and affirmative action programs to ensure the training and affirmative action programs do not violate the new EO and OFCCP’s current enforcement protocols.

Many organizations have concerns and questions regarding the Executive Order and we will continue to keep you up to date as information becomes available.

Racism has no place in our society.

We at FortneyScott and WorkPlace HR are deeply saddened by the senseless deaths of George Floyd, Breonna Taylor and Ahmaud Arbery, as well as the recent incidents of violence, racism, and intolerance taking place in communities throughout our nation. The subsequent protests reflect the righteous pain, anger and frustration that African Americans and all of us feel about racism. Compounding this injustice is the disproportionate illness and death rates in the African American and Latino communities and the rise in harassment of people of Asian descent due to the pandemic.

The attorneys and staff of FortneyScott and WorkPlace HR have dedicated their careers to advancing equal opportunity and affirmative action in the workplace and human rights across the globe. We are committed to creating a fair, just and inclusive society.

The outpouring of support by people of all races and cultural identities in peaceful protest serves as both a challenge and reminder that achieving equality is not solely the responsibility of communities of color but of everyone. Each of us must step up, speak out, and help address our Nation's shortcomings. At FortneyScott and WorkPlace HR, we are working with our clients to achieve the goal of equal opportunity. We want to ensure that Dr. Martin Luther King Jr.'s dream — that all children will "one day live in a nation where they will not be judged by the color of their skin but by the content of their character" — becomes a reality.

David Fortney
Jacqueline Scott
H. Juanita Beecher
Deirdre Bell
Elizabeth Bradley
Alyson Cina
John Clifford
Burton Fishman
Valerie Higgs
John Hine
Yolanda Hunter
Adriana Joens
Consuela Pinto
Leslie Silverman

To achieve a successful reopening after the COVID-19 outbreak, employers will need to prepare a comprehensive and detailed plan taking into account all federal, state, and local guidelines. While the preparation for reopening isn't a one-size-fits-all project, common elements will apply to all employers. The following six areas provide a general framework for developing a reopening plan you can tailor to your industry, location, size, and workforce.

1. Workplace

Prepare your workplace to mitigate the risk of contamination and exposure. To keep workers, secure, establish safety protocols, and provide sanitation supplies in compliance with U.S. Centers for Disease Control and Prevention (CDC) and Occupational Safety and Health (OSHA) guidelines. Organize your policies and practices to allow and promote social distancing, including new signage, decreased touchpoints, reconfigured workstations, and enhanced cleaning schedules. Other steps include:

• Decide whether you'll require employees and visitors to wear masks;
• Determine what types of health screenings (e.g., temperature checks) you'll conduct; and
• Prepare protocols if workers become ill or have been in contact with someone who is sick.

2. Work and/or business operations

Assess and evaluate the work to be performed, identifying any mission-critical tasks. Determine whether the way critical work is conducted needs to change and, if so, how it will be performed after the reopening. Identify key workers, and establish backup plans in the event of additional workplace interruptions (e.g., if another phase of remote work becomes necessary).

3. Workforce

Determine how to make decisions about which employees need to return to the workplace and who can continue to work from home or may no longer be necessary. In the process, review your policies to ensure they align with federal, state, and local guidelines.

Consider whether to return workers in phases and/or staggered shifts. Prepare for possible disruptions because of a new outbreak after reopening.

4. Policies

Conduct a comprehensive review of all your workplace policies. Specifically, look at your current remote work, paid leave, reasonable accommodations, data security, and technology policies as well as any other policies affected by COVID-19. During this time period, flexibility is very important and should be a component of your policies whenever applicable.

5. Communication

Develop clear, transparent communications to workers, unions (if any), customers, the community, and other stakeholders about how you'll reopen and when. Transparency is critical to a successful reopening.

Keep workers informed about changes in the workplace, from cleaning and social-distancing protocols to timing of the return to work. It's important for them to know what to expect on the first day and what protocols are in place so they can follow your safety and social-distancing guidelines.

Be sure to differentiate the communications to furloughed and laid-off workers. Failure to distinguish between the notices can potentially confuse returning workers and trigger claims such as an employer's failure to provide notice under the federal Worker Adjustment and Retraining Notification (WARN) Act or equivalent state and local regulations.

6. Worker well-being

Focusing on workers' well-being upon reopening is very important. Some employees may have experienced their own personal traumas because of COVID-19, heightening their anxiety, fears, and concerns about returning to work. Therefore, you should to have tools in place along with access to employee assistance programs (EAPs), which can assist them during the transition.

Takeaways

Workplace health and safety requirements and best practices are now employers' guideposts for preparing their facilities for a safe return to work. When implementing the steps to reopen, be sure to align your approach with CDC and OSHA guidelines for best practices.

On October 31, 2019, President Trump issued a new Executive Order that rescinded President Obama’s Executive Order 13495 (EO)—Nondisplacement of Qualified Workers Under Service Contracts—and its implementing regulations. The now rescinded EO required successor contractors to offer positions to qualified service workers and to provide employee notifications and workplace notice postings.

Additional Information on the Rescinded EO. The recession is effective immediately. The former EO required that any contract or subcontract entered into by the federal government or its contractors covered by the McNamara-O’Hara Service Contract Act (SCA) include a clause that qualified workers currently on a covered contract be given the right of first refuse for employment with a successor contractor. The EO prohibited a successor contractor performing the same or similar services at the same location from hiring any new employees until qualified workers performing the prior contract were provided an opportunity to accept a job with the successor. The EO also required the predecessor contractor to provide written notice to eligible employees by either conspicuous workplace posting or by individual notices to employees. Federal contractors will no longer be required to post or provide EO notices as well.

Trump’s rescission order specifically terminates immediately any existing investigations or compliance actions based on EO 13495, and directs the Secretary of Labor and other heads of government agencies to promptly move to rescind any orders, rules, regulations, guidelines, programs or policies implementing or enforcing Obama’s executive order.

Of the three Executive Orders issued by President Obama which federal contractors sought to reverse—(1) Fair Pay and Safe Workplaces, (2) Nondisplacement of Qualified Workers under the Service Contracts and (3) Paid Sick Leave—only the Paid Sick Leave Executive Order is still in effect.

Email us at for additional information about the rescinded EO.

Although the EEOC was scheduled to end the Component 2 data collection on Monday, September 30, 2019, the EEOC plans to keep the portal open in accordance with the district court’s order until it reaches approximately 72% of the employers who normally file EEO-1 Reports. On Friday, September 27, 2019 in its Status Report to the district court discussing post-September 30th activities the EEOC announced its plan to continue to accept Component 2 data for 2017 and 2018 in accordance with the judge’s order.  EEOC said that EEO-1 eligible employers should continue to submit and certify their Component 2 EEO-1 reports for 2017 and 2018 as soon as possible.

For more information on Component 2 pay data collection, see the EEOC’s portal for Component 2.

The U.S. Department of Labor’s Wage & Hour Division (WHD) announced a final rule updating the overtime eligibility requirements for workers under the federal Fair Labor Standards Act (FLSA).

Most notably, the final rule bumps up the minimum salary threshold required for workers to be exempt under the FLSA’s “white-collar” exemptions—that is, the executive, administrative, and professional exemptions. The new threshold of $35,568 is a significant increase from the previous threshold of $23,660, an amount which has not been revised since 2004. However, the new threshold falls far short of the $47,476 level proposed in a scuttled Obama-era rule in 2016.

Very importantly, the final rule makes no changes to the current “duties test” for exemptions—a hotly debated subject during the rulemaking process. Nor does the final rule call for an automatic update of the salary threshold, another controversial feature in the blocked Obama rule.

Other significant components of the final rule include:

• Updating the salary threshold for the “highly compensated employee” exemption from $100,000 to $107,432 per year;
• Allowing employers to use nondiscretionary bonuses and incentive payments (including commissions) that are paid at least annually to satisfy up to 10 percent of the standard salary level; and
• Revising the special salary levels for workers in U.S. territories and in the motion picture industry.

According to a WHD press release, the final rule will make an additional 1.3 million American workers eligible for overtime pay.

Next Steps

While the rule is scheduled to go into effect on January 1, 2020, it is widely expected that it will be challenged immediately in federal courts by Democrats and worker advocate groups, with the intent of enjoining and invalidating the rule in favor of one more akin to the Obama rule.

The final rule’s release coincides with a Senate committee confirmation vote today on Trump nominee for Labor Secretary, Eugene Scalia. Scalia is expected to clear the committee vote and ultimately win confirmation by the Republican-controlled Senate.

The Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) provided guidance on how an “establishment” should be determined in a campus-like setting, such as a higher education institution or an office park.

Understanding what constitutes an “establishment” is the cornerstone of federal contractors’ EEO and affirmative action compliance obligations. Federal contractors, generally, are required to develop Affirmative Action Plans (“AAPs”) for each “establishment.” AAPs are proactive tools that monitor most personnel activity (e.g., hiring, promotions, compensation and terminations) to determine areas of potential discrimination and areas in which additional diversity efforts need to be focused. OFCCP conducts compliance evaluations and related enforcement activity based on individual “establishments” by reviewing the AAP and related supporting materials. When multiple buildings in a campus-like setting are combined in a single AAP, contractors risk including a larger number of dissimilar employees into a single AAP. This could reduce the effectiveness of the proactive analyses as well as create additional challenges during OFCCP audits.

Key Takeaways: Federal contractors with campus-like settings, including clustered office buildings and higher education campuses, should evaluate whether their AAP structures comport with the factors included in OFCCP’s guidance to minimize the risk of a challenge to the AAP structure and coverage by OFCCP. In particular, higher education federal contractors need to carefully evaluate whether to use a campus-wide approach for developing an AAP, or whether grouping buildings by departments or other related organizational units or functions is appropriate for AAPs. The development of AAPs is a critical component in a federal contractor’s compliance strategy, and federal contractors should secure legal advice on how their AAPs should be structured based on their specific facts and with appropriate consideration of OFCCP’s new guidance.

Additional Information for Higher Education Federal Contractors: OFCCP, in particular, focuses on assessing compliance by higher education federal contractors which began during the Obama Administration. Many reviews of the higher education contractors still are pending. Why? Because OFCCP and the higher education community cannot agree on a fundamental compliance point – the definition of an “establishment.”

“Establishment” is not defined in OFCCP’s regulations. Case law, OFCCP’s compliance manual, trial testimony of a Regional Director, and the agency’s long-standing practice, however, define an “establishment” as a brick and mortar building. Curiously, OFCCP has repeatedly, but not consistently, taken a different position when it comes to higher education contractors. According to OFCCP practice, typically an “establishment” in the context of a college or university is the entire campus.

Last Spring, OFCCP Director Craig Leen promised to issue technical assistance guidance (TAG) for colleges and universities covering a range of issues, including the scope of a higher education AAP. It appears, OFCCP has abandoned – or at least delayed – its promise of a comprehensive TAG in favor of FAQs for Campus-Like Settings generally. These FAQs apply more broadly than just higher education. The FAQs apply to any contractor with multiple buildings in a campus-type setting.

While the sub-regulatory guidance provided in the FAQs is generally phrased in the permissive – “OFCCP may consider” or “Contractors may determine,” the guidance sets forth several factors contractors “should” consider when determining whether multiple buildings “should” be in a single AAP (FAQ 4). Such factors include:

• What is the function of the building, and how do the employees in the building interact with employees in other buildings?
• Are employees across different buildings part of the same organizational unit, such as department, division, section, branch, group, job family, or project team?
• Are the hiring, compensation, and other personnel decisions handled separately at each building or are those functions consolidated across the entire contractor or across multiple buildings on one campus?
• Does each building handle its own recruitment or is that function consolidated across multiple buildings?
• Do the buildings recruit from the same labor market or recruiting area?
• To what extent are other human resources and Equal Employment Opportunity compliance functions operationally distinct for each building or group of buildings?
• To what extent do certain employees perform work functions across various buildings?

OFCCP does not cite to any authority, legal or otherwise, to support these factors or the definition of an “establishment” as a group of buildings located in the same area. These FAQs are sub-regulatory guidance and, as such, it does not bind the contractor community or OFCCP. The structure and scope of an AAP is a critically important compliance decision. Contractors should certainly consider the various options available for structuring their AAPs - grouping multiple buildings in a single AAP per these FAQs; an AAP per building based on OFCCP’s long standing practice; or a Functional AAP per the regulations (41 CFR 60-2.1(d)(4)).  Specifically, in our experience involving higher education institutions, there have been limited instances in which OFCCP has accepted AAPs based on sub-campus groupings by departments or functions. OFCCP, however, generally expects that a single, campus-wide AAP will be prepared for colleges and universities, notwithstanding the lack of specific legal authority compelling such an AAP structure.