Listing Additional Disabilities

Specifically, the revised form expands the list of disabilities to include more comprehensive examples. These additions encompass various conditions such as:

• • alcohol or other substance use disorder (not currently using drugs illegally),
  • mobility impairments,
  • neurodivergence (including ADHD, autism spectrum disorder, dyslexia, dyspraxia, and other learning disabilities),
  • partial or complete paralysis,
  • pulmonary or respiratory conditions, short stature (dwarfism), and
  • traumatic brain injury.

Simplified Response Options

Furthermore, to enhance clarity and streamline the self-identification process, the revised form simplifies and broadens the response options. Individuals completing the form can now select one of the following choices:

1. 1. “Yes, I have a disability, or have had one in the past”
   2. “No, I do not have a disability and have not had one in the past”
   3. “I do not want to answer”

More Descriptive and Inclusive Examples

Lastly, the previous iteration of the form primarily highlighted a few specific disabilities, including cancer, hearing impairment, epilepsy, and intellectual disability. However, the revised form has taken a stride towards inclusivity by expanding its scope. The updated version now encompasses a wider array of examples, such as past or present instances of cancer, individuals experiencing deafness or severe hearing difficulties, individuals with epilepsy or other seizure disorders, and those with intellectual or developmental disabilities.

Bottom Line

If you are a federal contractor or subcontractor make sure you are using the updated form before July 25, 2023, to ensure compliance.

The post Quickly Approaching Deadline for the New Disability Self-Identification Form appeared first on Felhaber Larson.

This new rule relates to Executive Order 11246, which generally prohibits federal contractors from engaging in discrimination.  However, it also mirrors a provision in Title VII of the Civil Rights Act that allows religious organizations to show a preference for “individuals of a particular religion” in keeping with the organization’s religious identity. Thus, the primary focus of the new rule is to clarify how employers with federal contracts might claim the exemption when defending their preference for employees of a particular religion or those who observe a particular religious tenet.

The Final Rule provides new definitions of key terms used in the OFCCP religious exemption:

“Religion”

The Final Rule defines “religion” in a manner that is “not limited to religious belief but also includes all aspects of religious observance and practice.” Thus, an employer may claim entitlement to the religious exemption due to their observances of religious practices without having to be scrutinized regarding the extent of their religious beliefs or whether their beliefs line up word-for-word with a particular religious denomination.

“Religious Corporation, Association, Educational Institution, or Society”

The Final Rule abandoned an earlier proposal that the religious exemption could be invoked only by a non-profit organization.  Now, an organization can claim the exemption if that organization:

• is organized for a religious purpose;
• holds itself out to the public as carrying out a religious purpose;
• engages in activity consistent with, and in furtherance of a religious purpose; and
• is either a non-profit or is able to present other strong evidence that it has a substantially religious purpose.

The Rule specifically states that “whether an organization’s engagement in activity is consistent with, and in furtherance of, its religious purpose is determined by reference to the organization’s own sincere understanding of its religious tenets.” The entity need not have a house of worship nor must it be supported by or affiliated with a religious tradition.

The Final Rule also provides some hypothetical examples to help organizations better understand the parameters of this new rule.

Example 1: The Candlestick Maker

A closely-held for-profit company makes and sells metal candlesticks and other decorative items. The company’s mission statement does not address religion, but most of the company’s customers are churches and synagogues, but the federal government also purchases some of the company’s wares for diplomatic events. The company regularly confers with religious leaders to ensure that its products meet applicable religious specifications, regularly runs advertisements in religious publications, and donates a portion of sales to charities run by its religious customers.

Does this company qualify as a religious organization exempt from compliance with federal non-discrimination laws? No, this company’s purpose is secular, not religious, as evidenced by the lack of reference to religion in its mission statement. Moreover, the company does not hold itself out to the public or its customers as a religious entity. Also, because it is a for-profit company, it would need to satisfy a high showing to prove its religious status, which it cannot do.

Example 2: Chaplains Incorporated

A non-profit organization contracts with the federal government to provide chaplains to military and law-enforcement organizations around the country. The organization’s purpose as set forth in its articles of incorporation is to provide religious services to individuals of its same faith and to educate others about the faith. The organization regularly communicates with its employee regarding ways to promote the faith in the workplace and the handbook makes several references to maintaining a “Christian atmosphere where the Spirit of the Lord can guide the organization’s work.

Does this organization qualify for the religious exemption? Yes, says the Final Rule. Clearly, the organization has a religious purpose and mission, and holds itself out to its employees and the public as a religious institution.

Example 3: The Kosher Caterer

This small catering company, owned by two Hasidic Jews, specializes in Kosher meals, and primarily services synagogues for special community events. The federal government contracts with the company to provide kosher meals for conferences. The company’s employees are not exclusively Jewish, but they do receive instruction in Kosher food preparation. The company’s mission statement says that it is committed to fulfilling a religious mandate to strengthen the Jewish community by enabling Jewish people to fully participate in public life through providing Kosher meals for events. On its website, the company states that it seeks to “honor G-d.” The company donates to various local Jewish charitable projects and its advertisements prominently feature Jewish imagery and text.

Does this company qualify for the religious exemption? Yes. Despite the fact that it is a for-profit company, it clearly has a religious purpose, and its main business is providing a service in keeping with a religious practice. The company also trains its employees in certain religious practices, which are central to the service it provides.

Example 4: The Artifact Collector

This for-profit business collects and sells religious, cultural, and archeological items, including to the federal government, who occasionally purchases items for research or decoration. Most of the business’s customers are private collectors or museums. Its mission statement states that its purpose is to “curate the world’s treasures to perpetuate its historic, cultural, and religious legacy.” The business’s marketing and advertising materials display pictures of religious artifacts as well as other cultural and artistic pieces.

Does this business qualify for the religious exemption? No, says the Final Rule. It is not a religious organization, and the business does not appear to have a religious purpose. While it holds itself out as a company dealing in religious objects, these appear to be a minor part of its collection, and do not convey a particular religious identity overall. This is especially true given that it is not a non-profit corporation.

Bottom  Line

While this Final Rule provides some clarity regarding the religious exemption for federal contractors, its impact may be significantly curtailed by a new administration less inclined to provide leeway to religious organizations than the current administration.  In the interim however, this rule sheds some light on the parameters of a highly fact-specific exemption analysis.

The post Labor Department Issues New Rule Expanding Religious Exemption For Federal Contactors appeared first on Felhaber Larson.

Most private entities doing business with the Federal Government must maintain an Affirmative Action Plan (AAP) identifying methods by which they will seek to increase hiring and promotion of protected class individuals (e.g. women and minorities). AAP’s usually include training for managers and employees, which usually focus on eliminating unconscious bias by the decisionmakers to combat systemic barriers facing members of a protected class in regard to employment and advancement.

No Talk of “Divisive” Concepts Regarding Race/Sex 

The Executive Order identifies concepts it labels as “divisive” which must be removed from any training program maintained by a Federal contractor. Contractors not complying with this directive risk significant penalties, including cancellation/termination of the contract and ineligibility for future contracting opportunities.

The Order prohibits trainings that cover any of the following concepts:

• one race or sex is inherently superior to another race or sex;
• 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 Order additionally prohibits training or instruction regarding “race or sex stereotyping,” which is defined as “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.”

Finally, the Order prohibits: “race or sex scapegoating” defined as “assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex.”  Thus, trainings that members of any race or gender are inherently racist or sexist, or are inclined to oppress others, are prohibited.

Shifting the Focus from Equity to “Merit-Based”

Anti-bias training undertaken in accordance with AAP’s has almost always included a component instructing managers not to stereotype other persons based on their protected class status, and to refrain from allowing race or gender to handicap individuals in search of employment or advancement. This meant encouraging managers to recognize that certain systemic, economic and/or social may have impacted access to opportunity, and to think more expansively about a candidate’s credentials.  In short, this training emphasized equity and opportunity.

The Order now essentially blacklists the concepts of “privilege” or “inherent biases” from being discussed during these trainings, preventing contractors from training employees to account for any advantage an individual has because their race or gender. Trainings under the new Executive Order must focus solely on the candidate’s comparative merit on paper.

The timing of this order could be problematic for some contractors. The new requirements are scheduled to go into effect after the upcoming November election, but before the January, 2021, inauguration date.  If President Trump is not re-elected, it is reasonable to believe that a Biden administration would repeal this Order. However, with a two-and-a-half-month gap between election and inauguration, contractors needing to renew in that period may have to choose between modifying their training programs now or risking that enforcement of this new Order will be sufficiently tepid as to not impair their chances at contract renewal.

Two Additional Areas of Concern for ALL employers

The Executive Order pose another concern, one which apply to all employers, by directing the attorney general to “assess the extent to which workplace training that teaches the . . . [foregoing] concepts . . . may contribute to a hostile work environment and give rise to potential liability under Title VII…” It is not clear how this assessment will take place but it does seem to signal the possibility for increased government intervention for employers deemed guilty of providing training inconsistent with the Executive Order’s goals.

Moreover, the Office of Federal Contract Compliance Programs (OFCCP) has announced the creation of a hotline for employees to complain about workplace training that breaches the Executive Order’s intent to “combat offensive and anti-American race and sex stereotyping and scapegoating.”  These complaints may trigger investigations and possible enforcement actions.  Given the intensity of the current political environment, as well a historic pattern of resistance to equity training on the part of many employees, this hotline may be ringing off the hook in the coming months

Bottom Line

This Executive Order greatly changes the paradigm for federal contractors, enough so that we expect to see legal challenges very soon.  Some parties have suggested that this order infringes on constitutional protection of speech, while others question whether the order impermissibly ignores procedural requirements for changing contractor obligations.

This should be a bumpy ride for the next few months.

The post Executive Order Bans Training on Privilege and Systemic Bias for Government Contractors appeared first on Felhaber Larson.

The OFCCP, a division of the U.S. Department of Labor, enforces a number of laws and executive orders that collectively prohibit federal contracts and subcontractors from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or veteran status. The OFCCP requires federal contractors to take affirmative steps to ensure that equal employment opportunity exists in their employment processes.

Annual Compliance/AAP’s

The OFCCP requires businesses with 50 or more employees working on government contracts valued at $50,000 or more to develop and maintain an Affirmative Action Plan (“AAP”). The AAP must be customized to reflect the individual employers’ organizational structure, policies, practices, programs, and data. Contractors must develop the AAP within 120 day of being awarded the contract, and must update their plans annually.

Drafting and updating an AAP can be an extensive and painstaking endeavor.  As part of developing and updating an AAP the contractor must conduct an in-depth statistical analysis of their work force to evaluate whether potential statistical disparities exist, and then develop specific action plans to ensure that they are in fact providing equal employment opportunities for applicants and employees.  The OFCCP then conducts audits to determine if contractors have developed suitable plans.

OFCCP Plans to Step Up Enforcement Efforts

Despite the express requirement to develop and maintain an AAP, the OFCCP’s Directive notes that contractors as a group have been woefully failing in their obligations, with “close to 85 percent of contractor establishments” failing to timely submit a written AAP as required. Because there are so many organizations subject to the AAP requirement – the OFCCP currently estimates that over 120,000 contractor establishments and approximately 24,000 firms or parent companies are subject to its jurisdiction – the OFCCP has only been able to schedule a small portion of these establishments for annual compliance evaluations.

In light of this, the OFCCP has begun the process of developing a program to verify and ensure that all contractors comply with their AAP obligations. While they have not yet gone so far as to require the annual submission of AAP’s for review, the OFCCP’s Directive states that they will begin to develop policies to increase participation, including requiring contractors to submit annual verifications that they have complied with their AAP obligations. The OFCCP further noted that the failure to submit an annual certification will be used as a criterion in selecting which organizations will be selected for a full compliance audit.

While nothing has changed in the OFCCP’s enforcement policies and procedures yet, the Directive signals that they are beginning to take proactive steps to increase monitoring and to ensure that contractors are actually complying with their legal obligations.

Bottom Line

Federal contractors should view this as a sign that it may be time to evaluate your affirmative action obligations, including the requirement to review and update your AAP’s annually. Why not take action now so that you are ready if and when the OFCCP comes knocking on your door?

The post Labor Department Threatens Tougher Scrutiny of Affirmative Action Employers appeared first on Felhaber Larson.

This final rule implements Executive Order 13706, which was signed by President Obama in September, 2015.

This is the latest in a rising tide of mandatory sick leave requirements that seems to be overtaking the workplace both locally and nationally.

When do the Rule’s requirements start?

The Rule is effective on new covered contracts issued on or after January 1, 2017.

What contracts does the Rule cover?

All federal contracts, including

–  procurement contracts for construction covered by the Davis Bacon Act (DBA);

–  contracts for services covered by the Service Contract Act (SCA);

–  contracts for concessions, including concessions contracts excluded from coverage by the SCA; and

–  a contact in connection with federal property or lands and related to offering services for federal employees, their dependents or the general public.

For DBA or SCA contracts, the Rule applies only at the thresholds specified in those statutes, $2,500 and $2,000 respectively. For procurement contracts, the threshold is the micro-purchase amount ($3,500).  The Rule applies to subcontracts of prime or upper-tier contracts so long as the subcontract is one of the 4 types of covered contracts.

What employees are covered?

The Rule applies to employees that work on, or in connection with, covered contracts and whose wages under those covered contracts are governed by the DBA, SCA, or FLSA, including employees who qualify for an exemption from the FLSA’s minimum wage and overtime provisions.

Employees who perform work “on” covered contracts are those who work on-site, including trades workers.

An employee performs work “in connection with” a covered contract if the employee performs work activities that are necessary to the performance of the contract. For those who work “in connection with” a covered contract, the Rule’s accrual requirements only apply to such employees if 20% or more of their hours worked in a particular workweek are in connection with the contract.

The Rule suggests that employers can estimate the amount of time an employee spends “in connection with” a covered contract by determining how much of the contractor’s total revenue derives from the covered contract, assuming the employee’s work is roughly divided across the contractor’s other jobs.

What leave benefits does the Rule require?

Employees covered by the Rule must accrue not less than 1 hour of paid sick leave for every 30 hours worked on or in connection with the covered contract, up to the limit of 56 hours per year. An employer may frontload 56 hours of paid sick leave at the beginning of an accrual year rather than accrue hours as the employee works.  Unused leave can be carried over from year-to-year, but may be capped at 56 hours.  The Rule does not require that employees be able to cash-in unused leave.

Employers must inform employees, at least as often as once each pay period, as well as upon separation from employment and upon reinstatement, of the amount of paid sick leave that an employee has accrued. If an employee’s employment ends, and the employee is rehired within 12 months, the unused sick leave upon separation must be reinstated, unless the employee received payment for the unused amount at separation, regardless of whether the employee will be working on a covered contract or not.

While an employee is using leave, the employer must provide to them the same benefits that would have been received were they working, but they do not, however, accrue additional leave time.

What purposes can leave be used for?

Leave may be used for time an employee would otherwise be working on, or in connection with, a covered contract because of:

–  A physical or mental illness, injury or medical condition;

–  Obtaining diagnosis, care, or preventive care from a health care provider;

–  Caring for a child, parent, spouse, domestic partner, or any other individual related by blood or affinity whose close association is the equivalent of a family relationship, who has any of the conditions or needs for diagnosis, care, or preventive care described in (1) or (2) or is otherwise in need of care; or

–  Domestic violence, sexual assault, or stalking, if the time absent from work is for the purposes described in (1) or (2) or to obtain additional counseling, seek relocation, seeking assistance from a victim services organization, take related legal action, including preparation for or participation in any related civil or criminal proceeding, or assist an individual related to the employee as described in (3) in engaging in any of these activities.

What obligation does an employee have in requesting or using leave?

In requesting use of leave, employees must provide sufficient information to enable their employer to determine whether the request meets a valid purpose.   An employer may request that the employee provide a certification to verify the need for use of sick leave – from a healthcare provider or other documentation if the leave is related to domestic violence, sexual assault or stalking – if the leave is 3 consecutive, full workdays, and the employee was told about the need for such a certification before returning to work.

If the request for leave is foreseeable, employees must make it at least 7 days in advance, and otherwise it must be made as soon as practicable.

Employers are not permitted to limit an employee’s use of leave, or the amount that can be used at one time, other than to the amount which they have accrued.

Employers must allow employees to use leave in increments of no greater than one hour.

Can leave benefits be provided via a multiemployer plan?

The Rule allows that employers may satisfy their obligations by making leave benefits for employees covered by a collective bargaining agreement available through a multiemployer plan. For such a plan to satisfy the Rule, the plan’s eligibility and payment rules must satisfy the Rule’s requirements.  That is, the employee must be allowed to use in not less than 1 hour increments, accrue leave at the same rate, and continue to be able to carry-over.  Employers though continue to remain responsible for meeting the leave requirements under the Rule, even if the benefits are provided through a plan.

If a collective bargaining agreement, ratified before September 30, 2016, already provides at least 56 hours of paid time each year, the Rule does not apply to the employee until the earlier of January 1, 2020, or when the CBA terminates. If a collective bargaining agreement, ratified before September 30, 2016, provides less than 56 hours of leave, the transition relief still applies if the additional leave needed to bring the accrual up to 56 hours per year is provided.

Bottom Line

Figuring out how to comply with this new rule can be complicated, especially if you are also subject to the new sick leave ordinances in Minneapolis and/or St. Paul and have to blend those requirements into your plan.

If you are a covered federal contractor and have not begun your preparations, do not wait any longer – January 1 will be here before you know it.

The post Final Rule Requires Sick Leave for Federal Contractors on January 1 appeared first on Felhaber Larson.

The final rule updates the OFCCP’s old regulations dating back to 1970. According to the OFCCP, the revised guidelines better reflect “the current state of the law and the reality of a modern and diverse workforce.” The rule will go into effect on August 15, 2016.

Why is this important?

All federal contractors and subcontractors need to be cognizant of the final rule’s implications because it addresses multiple employment issues beyond the scope of sex discrimination, including but not limited to, pay discrimination; sexual harassment and hostile work environments; workplace accommodations for pregnant employees; gender identity discrimination; and family caregiving discrimination.

While most of the OFCCP’s updates simply align the final rule with current case law, statutes, and regulations (e.g., Title VII, the Lilly Ledbetter Fair Pay Act, the Pregnancy Discrimination Act, etc.), the rule also creates and enhances certain employee protections.

Highlights and Added Protections

The definition of “sex” includes pregnancy, childbirth, or related medical conditions; gender identity; transgender status; and sex stereotyping.

–  Parental leave for newborn, adopted, or foster children must be provided to men and women on the same basis.

–  Unlawful discrimination includes adverse treatment on account of (1) gender norms and expectations regarding appearance, attire or behavior; (2) actual or perceived gender identity or transgender status; and (3) gender-stereotyped assumptions relating to (a) family caretaking responsibilities, or (b) working in a particular job, sector, or industry.

–  A variety of workplace accommodations—for instance, extra bathroom breaks or lighter-duty assignments—must be provided to employees affected by pregnancy, childbirth, and related medical conditions.

–  Benefits and contributions in fringe-benefit plans—including medical, hospital, accident, life insurance, and retirement benefits; profit-sharing and bonus plans; leave; etc.—must be provided to male and female employees on the same basis.

–  An optional “Best Practices Appendix” suggests contractors should, for example, designate single-use bathrooms, changing rooms, showers, or similar facilities as sex-neutral and provide equal and appropriate time off and flexible workplace policies to both male and female employees.

Bottom Line

Federal contractors and subcontractors are already subject to many of these regulations. The final rule, however, expands some protections to employees of federal contractors and subcontractors in various areas. All federal contractors should reevaluate their employment rules and processes to ensure compliance with the new regulations by August 15, 2016 and consider the rule’s suggested “best practices.”

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A copy of the revised Scheduling Letter is available here.  The revised Scheduling Letter encompasses multiple revisions.  For instance, as to race and ethnicity, contractors are required to submit race and ethnicity information using five specified categories, rather than the current broad categories of minority and non-minority.

Moreover, the revised Scheduling Letter no longer requires contractors to submit annualized aggregate compensation data. Contractors, however, are required to submit individualized employee compensation data as of the date of the workforce analysis in the contractor’s affirmative action program. In addition to the individualized employee compensation data, contractors must also provide the job title, job group, and EEO-1 category for each employee.

Furthermore, the revised Scheduling Letter also defines compensation to include “consideration of hours worked, incentive pay, merit increases, locality pay, and overtime.” Additionally, electronic submission of responsive data to the revised Scheduling Letter is now required for contractors who maintain data electronically in a format that is useable and readable.

Finally, the revised Scheduling Letter reflects the new implementing regulations for Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era of Veteran’s Readjustment Assistance Act of 1974, including the new data collection, recordkeeping, and reporting requirements under both regulations.

Stay tuned for further developments.

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The Proposed Rule would amend the implementing regulations for Executive Order 11246 by requiring covered contractors and subcontractors to submit an Equal Pay Report.  Employers will have to report employee compensation data by sex, race, ethnicity, and job category as well as provide additional information regarding hours worked.

The Proposed Rule also creates two different filing periods for the EEO-1 and the Equal Pay Report.  Unlike the EEO-1, which presents a snapshot of data in the current year, the Equal Pay Report will cover a full year.  Accordingly, by requiring covered contractors and subcontractors to file total W-2 earnings paid as of the end of each calendar year, the Equal Pay Report cannot be filed simultaneously with the EE0-1, which must be filed by September 30th of the current survey year.  The proposed rule suggests using a January 1 to March 31 of the following year for filing the Equal Pay Report.

Bottom Line

The OFCCP’s Proposed Rule specifically seeks comments on the impact of creating two different filing periods for the EEO-1 and the Equal Pay Report.  If you are interested in reading the full text or commenting, click here. Otherwise, stay tuned for updates.

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