The OFCCP Digest Volume 7, Issue 7

Adverse Impact Analysis: Aggregation of Races Topic: AAP
In August 2013, Adverse Impact (AI) analysis received one of the most important judicial clarifications rendered since its formal Supreme Court codification in 1971. Administrative Law Judge Kenneth A. Krantz ruled in favor of VF Jeanswear (VF) and denied OFCCP’s...more
	Dan Kuang, Ph.D. Vice President - Legal and Audit Support, Biddle Consulting Group, Inc.	Marife Ramos, PHR, SHRM-CP Director of Operations/Senior Consultant, Biddle Consulting Group, Inc.

Pay Equity: Old-School or Cutting Edge? Topic: Compensation
The Equal Pay Act was passed in 1963. That same year, the Beatles wanted to hold your hand, President Kennedy was assassinated, and women were earning 59 to 64 cents for every dollar earned by men working the same jobs...more
	Cheryl L. Behymer, Esq. Partner, Fisher Phillips LLP

Update on Website Accessibility Topic: Disability
Section 503 of the Rehabilitation Act of 1973 (Section 503), 29 USC § 793, prohibits federal contractors and subcontractors from discriminating in employment against individuals with disabilities and requires these employers to take affirmative action, including making...more
	Dara L. DeHaven, Esq. Shareholder, Ogletree Deakins

I’m All About That Tech Topic: OFCCP
Like I said, I am all about technology. It is essential to make your systems work for you instead of fighting to gather and analyze employee data. However, making the move to an HR system for the first time or moving systems isn’t without its issues; therefore, here are a few...more
	Carla Irwin, Esq. President, Carla Irwin & Associates, Inc.

Best Practices for Developing Written Accommodation Procedures Topic: Disability
Providing effective accommodations for applicants and employees with disabilities can benefit federal contractors in many ways. First, there is compliance with legal requirements; Section 503 of the Rehabilitation Act requires federal contractors to provide reasonable...more
	Linda C. Batiste, J.D. Principal Consultant, Job Accommodation Network (JAN)

Ask the Experts is an online forum where federal contractors and subcontractors are invited to submit questions to industry experts related to OFCCP compliance, affirmative action planning, and equal employment opportunity. Simply register your company on LocalJobNetwork.com to submit a question. Questions and answers will occasionally be featured in The OFCCP Digest for the benefit of all readers.

Question: AAP Recording for Staffing Agencies

I am a little confused if my company needs to create an AAP. As a staffing agency, we place individuals on an “as needed” basis to our clients who happen to be government subcontractors. For the positions that require a clearance, we are listed on the DD 254 as the subcontractor, since we hold the clearances. To my understanding, below are the requirements needed to complete an AAP. We as a staffing agency do not have any direct federal contracts or subcontracts with guaranteed funding, nor do we bill the government directly for labor hours worked by our temporary individuals. We invoice the client, and they provide payment directly to us. So as a staffing agency, would we need to create an AAP?

50 employees/$50,000 federal contracts or subcontracts
Government bills of lading totaling $50,000 or more in 12 months

Answered by Lisa Kaiser from Kaiser Law Group:

The law on this is very confusing and companies are often surprised to learn they may be federal contractors. (41 CFR 60-1.40) Further, there may be disagreement between the OFCCP and a company on whether a company is in fact a federal contractor. There has been significant litigation with respect to jurisdiction (the requirement to have an AAP). It is not as clear cut as one might expect. The rules on whether a company needs an AAP are vaguely defined since "subcontracts" and "contract" are not defined in the regulations. There is nothing that requires the funding be guaranteed, only that the value of the contract meet the threshold. The DD 254 further muddies the waters for your company. It becomes a question of risk. If the OFCCP says that it has jurisdiction, the company should be prepared to respond. Note that section 60-3.10 does require the company with which you provide employees to analyze data, regardless of your company's contractor status.

DOL Plans on Revising the Proposed Overtime Rule

Attorneys for the Department of Labor (DOL) informed the federal appeals court that it has decided not to advocate for the $913 per week salary threshold that was set in the 2016 Final Rule. Instead, it plans on undertaking new rulemaking to determine the appropriate salary level, and has requested the court to confirm the DOL’s statutory authority to set the salary threshold that would make workers eligible for overtime pay.

Janet Dhillon Nominated as EEOC Chair

President Trump has chosen Janet Dhillon to fill a vacant seat on the Equal Employment Opportunity Commission (EEOC) and ultimately lead the EEOC as its Chair. If Dhillon is confirmed, she would take over for Victoria Lipnic, who has presided over the commission as acting Chair. Dhillon currently serves as corporate secretary and general counsel for Burlington Stores, Inc. and has more than 20 years of experience as a lawyer in the private sector.

NILG Opposes Potential OFCCP/EEOC Merger

The National Industry Liaison Group (NILG) recently submitted a letter to the U.S. Department of Labor and the Office of Management and Budget to express its opposition to the consolidation of the OFCCP and EEOC noted in President Trump’s 2018 budget. In the letter, NILG argues that a possible merger “will negatively impact federal contractors, and ultimately the American worker.” The main issues cited by NILG include the different missions of the two groups, the chance that audits can become EEOC lawsuits, and the harmful impact on staffing and available resources.

Read more DOL Highlights throughout the month for timely updates.

Under the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA), federal contractors and subcontractors are required to list all their job openings with the local Employment Service Delivery System (ESDS), often referred to as state job banks, in the state where their jobs are located. You can find a complete list and links to each ESDS website by clicking on the map below.

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The OFCCP Digest is a complimentary resource featuring affirmative action, equal employment opportunity, and government compliance topics. Previous editions are available for easy reference on The OFCCP Digest Archives page. To subscribe or to provide feedback, email OFCCPDigest@LocalJobNetwork.com.

The opinions expressed in this newsletter are the opinions of the individual author(s) and do not necessarily reflect the opinions of the Local JobNetwork™. The information appearing in this newsletter is meant to provide the reader with a general understanding of topics relating to OFCCP compliance requirements and is not legal advice. If you are seeking legal advice to address OFCCP compliance issues or requirements, you should consult an attorney. The Local JobNetwork™ expressly disclaims all liability with respect to actions taken or not taken based on any or all of the contents of this newsletter.