Recent News

We have just learned from a reliable source that the Office of Federal Contract Compliance Programs (“OFCCP”) will issue the next round of Corporate Scheduling Announcement Letters (CSAL) “in the near future” for FY 2010. Typically, CSALs are sent twice each year, in November and again in the spring. The CSAL provides larger contractors with two or more locations a “heads up” on future audit activity by identifying those establishments selected for potential compliance reviews. It was previously reported that OFCCP had suspended use of the CSAL, implemented under the Bush Administration, an action that would have given contractors just thirty (30) calendar days’ notice of an OFCCP audit upon delivery of the Audit Scheduling Letter.  Fortunately, those plans have changed.  The Agency’s new Director, Patricia Shiu, has indicated that OFCCP will continue to send out CSALs at least through the end of this fiscal year on September 30, 2010. OFCCP expects to formally announce this development shortly. 

 

CSALs are addressed to the contractor’s Chief Executive Officer (“CEO”) or other point of contact. They do not constitute notice that an actual audit has commenced, but only that the listed facilities are likely to be audited during the fiscal year.   Please be sure that this information is disseminated to your company’s President or CEO of your company to prepare him/her for appropriate handling of the CSAL upon receipt. We will provide additional information on the OFCCP’s scheduling process as those details become known. For now, the message is “be ready.”  Locations identified for potential audit should receive priority handling with respect to AAP preparation and data analysis.

 

Remember, OFCCP’s FY2010 budget request represents an unprecedented 25% increase over prior funding levels.  If approved, the number of Compliance Officers is expected to double, action sure to result in dramatically stepped-up audit activity.  Director Shiu, a former Legal Aid attorney from San Francisco with strong ties to the plaintiff’s bar, will be under pressure during the coming year to meet or exceed the record back pay recovered during the Bush Administration.  An experienced litigator, Ms. Shiu is said to be extremely comfortable pursuing adverse impact discrimination claims, focusing on hiring and compensation.       

 

For more information on this important development or general advice 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 This e-mail address is being protected from spambots. You need JavaScript enabled to view it , Kathleen Raynsford at This e-mail address is being protected from spambots. You need JavaScript enabled to view it , Judy Kramer, at This e-mail address is being protected from spambots. You need JavaScript enabled to view it , or Susan Webman, at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

 

 

There are companion bills pending before both the House and the Senate requiring paid sick leave. On November 10, the Senate Health, Education, Labor and Pensions Committee's Children and Families Subcommittee held a hearing on paid sick leave legislation. The Healthy Families Act (H.R. 2460, S. 1152),would require employers to provide workers with up to seven days of paid sick leave which could be earned over a period of time and would be carried over from one year to the next. It would cover the sickness of the employee or to care for sick parents or children, and visits to a health care provider for a specific issue or preventative care as well as “an absence resulting from domestic violence, sexual assault, or stalking”. Employees would be allowed absences up to three days without a medical certification. Representative George Miller, chairman of the House Education and Labor Committee, introduced H.R. 3991, a bill which would mandate emergency sick leave, providing for five days paid leave for employees with flu-like symptoms in instances where employers tell employees to go home. He advised that he expects to hold hearings and expects a vote soon thereafter regarding paid sick leave legislation. Senator Dodd introduced a companion bill to H.R. 3991, with his bill providing for seven paid sick days. The Obama administration voiced support for both bills, saying that the Family and Medical Leave Act does not cover situations such as the expected 2009 flu epidemic. Opponents argued that supporters underestimate the cost to the recovering economy and the legislation would potentially cost jobs. A representative for The Society for Human Resource Management (SHRM) disputed the need for this legislation, saying that many employers already offer sufficient paid leave, and cautioned against “rushing to impose new mandates that will do more harm than good.”

On November 3, 2009, President Obama nominated Victoria A. Lipnic to serve on the U.S. Equal Employment Opportunity Commission (EEOC). Lipnic is currently Of Counsel in the Washington, D.C. office, Seyfarth Shaw, LLP. If Lipnic’s nomination is approved, she will be one of two Republican members serving on the EEOC. Lipnic formerly served, for seven years, at the U.S. Department of Labor as the U.S. Assistant Secretary of Labor for Employment Standards. Shortly after, on November 10, President Obama nominated Cynthia Attwood to serve on the Occupational Safety and Health Review Commission (OSHRC). Attwood has an extensive Department of Labor experience, including her tenure as Associate Solicitor for Occupational Safety and Health. If her nomination is approved, the commission will have three members for the first time in three years. Attwood’s term would continue through 2013.

The law requires covered employers to post notices describing the Federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability and genetic information.

 EEOC has revised its “Equal Employment Opportunity is the Law” poster. This new version reflects current federal employment discrimination law (including the Americans with Disabilities Act Amendments Act of 2008). The poster was revised to add information about the Genetic Information Nondiscrimination Act of 2008 (GINA), which is effective November 21, 2009.

We have been informed of the following changes to the OFCCP’s Leadership team:

• Patsy Blackshear, Ph.D, has returned to the OFCCP as the Director of Program Operations;
• Lorenzo Harrison has been selected as the OFCCP’s Deputy Director;
• Bruce Bohanon has been selected as the Director of the Division of Policy, Planning and Program Development. 
   
This information is just unfolding and we will keep you advised as the details become known.

On September 25th, the House, in a 217-190 vote, approved a continuing resolution that contains a one-month extension for four immigration-related programs, including E-Verify, and one veterans' job program. The resolution, which accompanies the fiscal year 2010 legislative branch appropriations bill (H.R. 2918), would extend the programs' current expiration date from Sept. 30 to Oct. 31. The Senate is expected to take up the resolution during the week of Sept. 28.
 

On September 9, the U.S. Court of Appeals for the Fourth Circuit denied a motion for an injunction to halt the implementation of a rule requiring federal contractors to use E-Verify. This means that the E-Verify regulations are effective immediately (and have been effective since September 8th), and government contractors must comply under all affected contracts.

The E-Verify regulations have been upheld and will become effective September 8, 2009. Read the decision, issued August 25, 2009 by the U.S. District Court in Maryland, denying the legal challenges to the E-Verify regulations.

FortneyScott & WorkPlace HR will present a Lunch and Learn teleconference on Thursday, September 3rd from 12 pm to 1 pm Eastern time on the new E-Verify regulations imposed on federal contractors and subcontractors that will be effective September 8, 2009. David S. Fortney, Esq. of FortneyScott and Jill M. Smith of WorkPlace HR will present this complimentary hour-long overview of the regulations and their impact on federal contractors. Participants must register for the teleconference in order to receive seminar materials and dial-in information. The session will be repeated on Thursday, September 10th. To register, visit the FortneyScott website.

On Friday August 21, 2009 the United States District Court for the District of Maryland heard oral arguments on whether the proposed E-Verify regulations can be implemented as scheduled on September 8, 2009. A decision is expected in about a week.

The legal challenges were filed by the U.S. Chamber of Commerce and other leading employer associations to the proposed E-Verify regulations (73 FedReg 67651). The regulations would mandate the use of E-Verify for certain federal contract and subcontract awards after September 8, 2009. Under the new rule, all new hires and existing employees hired after November 6, 1986 assigned to affected contracts must be certified through the Department of Homeland Security’s electronic employment eligibility verification system.  

Once the Court has issued a ruling, Fortney & Scott, LLC and WorkPlace HR will promptly schedule an audio seminar update on E-Verify and its effects on federal contractors.

The Labor Department has chosen Patricia A. Shiu as the director of the Labor Department’s Office of Federal Contract Compliance Programs.