Insights

August 26, 2022
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Category: Agency Enforcement

OFCCP Revises Controversial “Pay Equity Audits” Directive

The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has revised the controversial Pay Equity Audits directive issued earlier this year to clarify that the agency “will not require the production of privileged attorney-client communications or attorney work product.” As we reported back in March when it was issued, the original directive instructed OFCCP compliance officers (COs) to...
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August 26, 2022
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Category: Agency Enforcement

Fourth Circuit Rules Gender Dysphoria Is a Covered ADA Disability

In a case of first impression before the federal appeals courts, the U.S. Court of Appeals for the Fourth Circuit has ruled that gender dysphoria can be a disability under the Americans with Disabilities Act (ADA). Gender dysphoria, as discussed in more detail below, is defined as clinically significant distress experienced by transgender individuals. While the ADA expressly excludes “gender...
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August 26, 2022
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Category: Immigration

USCIS Proposes Rule To Continue Remote I-9 Document Verification

In a positive response to written comments received by the agency, although short of what we would prefer, U.S. Citizenship and Immigration Services (USCIS) has published a proposed rule that would formalize the agency’s authority to implement “alternative options,” i.e., remote review options, for employers to use when verifying an employee’s identity or work authorization documentation on the Employment Eligibility...
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August 19, 2022
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Category: Agency Enforcement

D.C. Circuit Issues Important Decision on Federal Rulemaking

A recent decision by a split three-judge panel of the influential U.S. Court of Appeals for the D.C. Circuit has potentially significant implications for federal rulemaking subject to the Administrative Procedure Act (APA), and in particular during the transition of presidential administrations from one political party to the other. Ruling in the case of Humane Society v. Department of Agriculture,...
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August 19, 2022
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Category: Affirmative Action and Diversity

FAQs on Affirmative Action Placement Goals

It comes as no surprise to many of you that there can be challenges in trying to balance the dual interests within your organizations of (1) complying with the nondiscrimination and affirmative action requirements arising under Title VII of the Civil Rights Act of 1964 (Title VII), Executive Order (E.O.) 11246, and a variety of other federal and state laws;...
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August 19, 2022
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Category: Agency Enforcement

$85 Million Settlement Underscores DOJ’s Focus on Anticompetitive Employment Practices

A massive $85 million settlement in a wage fixing case in the poultry industry is the latest evidence that the U.S. Department of Justice (DOJ) continues to focus antitrust enforcement efforts on anticompetitive employment practices. At the same time, DOJ’s strategy as to how to pursue these cases still appears to be evolving, as evidenced by a recent brief DOJ...
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August 12, 2022
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Category: Labor Relations

D.C. Circuit Reinforces Prior “Joint Employer” Ruling in Browning-Ferris

The U.S. Court of Appeals for the District of Columbia Circuit has issued a second ruling in a long-running case that goes to the heart of who can be considered a “joint employer” under the National Labor Relations Act (NLRA). Before we proceed further, please be aware that the history of this case is complex, as is predicting the ultimate...
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August 12, 2022
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Category: Compensation

NAS Panel Concludes EEO-1 “Component 2” Flawed, Recommends Improvements

An outside organization commissioned by the Equal Employment Opportunity Commission (EEOC) to evaluate the agency’s 2017-2018 collection of pay and hours-worked data on the EEO-1 Report (Component 2) has issued a report concluding that the data are unsuitable for determining whether it is likely that an employer has engaged in unlawful conduct. The long-awaited report by a panel convened by...
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August 05, 2022
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Category: Veterans

2022 VETS-4212 Filing Season Underway, Filing Deadline Is September 30

The Department of Labor’s Veterans’ Employment and Training Service (DOL-VETS) has opened the 2022 filing season for the annual VETS-4212 report. The VETS-4212 is a mandatory form that covered federal contractors and subcontractors are required to complete and file annually with DOL-VETS that provides a job category snapshot of the workforce by “protected veteran” status, as well as the number...
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August 05, 2022
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Category: Agency Enforcement

NLRB Joins Forces With FTC and DOJ To Go After Anticompetitive Employment Practices

The National Labor Relations Board (NLRB) has entered into two Memoranda of Understanding (MOUs) – one with the Federal Trade Commission (FTC) and the other with the U.S. Department of Justice (DOJ) – that are designed to facilitate information sharing between the agencies for the purpose of prosecuting employers whose business practices put workers at risk of harm because of...
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