DOL released a press release today announcing that Secretary of Labor Hilda L. Solis is sending sub-agency heads to Gulf states impacted by the BP Deepwater spill. In addition to OFCCP Director Patricia Shiu, the delegation will include Assistant Secretary of Labor for Employment and Training Jane Oates and Wage and Hour Division Deputy Administrator Nancy J. Leppink.  During their visit, they will meet with local fishermen, community-based organizations, and state and local appointed and elected officials in Alabama, Florida, Louisiana and Mississippi.  The trip is scheduled for July 7 through July 9.  The press release is at:  http://www.dol.gov/opa/media/press/eta/eta20100946.htm.

The EEOC marked its 45^th anniversary on July 2.  Created by the historic Civil Rights Act of 1964, the EEOC was founded to enforce Title VII of that Act, which prohibits discrimination in employment on the basis of race, color, religion, sex or national origin. On July 22, 2010 the EEOC will also celebrate the 20th anniversary of the passage of the Americans with Disabilities Act (ADA), which expanded employment opportunities for physically, emotionally and mentally disabled people.  The EEOC will celebrate its anniversary in a series of events at its Washington DC headquarters and at its offices across the country.  The first event is scheduled on Thursday, July 22 from 2:00 – 4:00pm EDT in the EEOC Training Center in Washington DC.  A panel discussion will focus on the impact of the Americans with Disabilities Act on millions of Americans with disabilities in the workplace. 

 ”EEOC Celebrates Its 45^th Anniversary,” EEOC Press Release, 7/2/10.

On June 22, the DOL Wage and Hour Division released an Administrator’s Interpretation on clarification of the definition of “son or daughter” under the Family and Medical Leave Act as it applies to an employee standing “in loco parentis” to a child.  The DOL press release states ” This action is a victory for many non-traditional families, including families in the lesbian-gay-bisexual-transgender community, who often in the past have been denied leave to care for their loved ones.”  DOL Secretary Hilda Solis stated “The Labor Department’s action today sends a clear message to workers and employers alike: All families, including LGBT families, are protected by the FMLA.”  Link to the DOL press release is here.  Link to the interpretation is here.

The EEOC and CVS Caremark announced the signing of a National Universal Agreement to Mediate (NUAM) to informally resolve workplace disputes through Alternative Dispute Resolution (ADR) before an EEOC investigation or potential litigation occurs.  The mediation partnership marks the 200th such national or regional agreement between the EEOC and a large employer (mainly Fortune 500 companies) and bolsters a multi-year trend of corporate America signing on to the EEOC’s widely acclaimed mediation program — one of the largest employment-related ADR programs of its kind nationwide, with approximately 12,000 mediations conducted annually.  EEOC Press Release, 6/29/10.

On June 15, 2010, OFCCP Director Patricia Shiu signed off on verification procedures under Executive Order 13496 (Notification of Employee Rights Under Federal Labor Laws and DOL’s implementing regulations).  The purpose of the 20-page set of procedures is to provide instructions for conducting compliance verification under this executive order and implementing regulations during the onsite phase of a compliance evaluation or in response to a written complaint of noncompliance.  According to the procedures, the compliance verification will be conducted as a routine part of the onsite phase of compliance evaluations, including, where appropriate, focused reviews.  A link to this information is at http://www.dol.gov/ofccp/regs/compliance/directives/dir290.pdf.

A new announcement from OFCCP:

On September 24, 1965, President Lyndon B. Johnson signed Executive Order (EO) 11246 ringing in a new era of nondiscrimination and affirmative action requirements for those companies doing business with the Federal Government.  OFCCP plans to highlight this important milestone and celebrate its accomplishments toward making America’s workplaces diverse and free of discrimination.  Preliminary ideas include hosting special events around the nation, developing educational materials, engaging the media and getting the word out via OFCCP’s Web site, webinars and social media tools.  OFCCP encourages all organizations to join in this celebration by promoting the importance of preventing workplace discrimination and highlighting their successes in doing so.  Furthermore, OFCCP is collecting personal stories from individuals who have been positively impacted by EO 11246 or OFCCP’s work.  For more information, or if you would like to contribute a story, please e-mail OFCCP-Anniversary@dol.gov.

The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued a news release yesterday announcing  a consent decree with a security company to settle findings of hiring discrimination.  The company will pay $290,000 to 446 African-American job applicants and will hire 41 of the applicants into traditional security officer positions.  The company has also agreed to undertake extensive self-monitoring measures to ensure that all hiring practices fully comply with the law and will immediately correct any discrimination practice. 

OFCCP Director Patricia Shiu stated that “This settlement of $290,000 in back pay on behalf of 446 African-Americans should put all federal contractors on notice that the Labor Department is serious about eliminating systemic discrimination.

The OFCCP news release is at http://www.dol.gov/opa/media/press/ofccp/ofccp20100736.htm#

OFCCP has opened up a second webinar session for Thursday, June 10, 2010 from 2:00pm EDT – 3:30pm EDT to discuss how  federal contractors and subcontractors can comply with Executive Order 13496.   The first OFCCP webinar is scheduled for Thursday, June 3 at 2:00pm EDT – 3:30pm EDT.  Registration information for both webinars is at http://www.dol.gov/ofccp/EO13496_webinar_invitation.htm.

The Department of Labor’s Office of Disability Employment (ODEP) has announced the official theme for October’s National Disability Employment Awareness Month – “Talent Has No Boundaries:  Workforce Diversity INCLUDES Workers with Disabilities.”  “US Labor Department Office of Disability Employment Policy announces National Disability Employment Awareness Month theme,” ODEP News Release, 5/13/10.

The U.S. Department of Labor plans to propose a new department-wide regulatory and enforcement strategy entitled “Plan/Prevent/Protect” to leverage limited resources to increase compliance.  DOL described this strategy in its recently released Spring 2010 Regulatory Agenda.  The new strategy is only at the anticipated proposal stage, and any official implementation would be several months away. 

“Plan/Prevent/Protect” is intended to replace the “catch me if you can” approach used by those employers that depend on luck or coincidence to avoid violations.  Under the new strategy, employers will be asked to assemble plans, create processes, and designate people charged with achieving compliance.  Employers will be required to implement these plans and evaluate their effectiveness in achieving compliance.  

The new Plan/Prevent/Protect enforcement strategy marks an expansion of requirements historically used by certain DOL agencies such as OFCCP.  OFCCP, as well as the Occupational Safety and Health Administration (OSHA), Wage and Hour Division (WHD), Mine Safety and Health Administration (MSHA), will propose regulatory actions that require employers to develop programs to address certain employment law compliance issues.    The specifics will vary, but all regulated entities will be required to take three steps to ensure compliance:

 1.       Plan:  DOL will propose a requirement that employers create a plan for identifying and remediating risks of legal violations and other risks to workers.  The employer would provide their employees with opportunities to participate in the creation of the plans.  In addition, the plans would be made available to workers so they can fully understand them and help to monitor their implementation.

 2.       Prevent:  DOL will propose a requirement that employers thoroughly and completely implement the plan in a manner that prevents legal violations.  The plan cannot be a mere paper process.  The employer cannot draft a plan and then “put it on a shelf.”  The plan must be fully implemented for the employer to comply with the Plan/Prevent/Protect compliance strategy.

 3.       Protect:   DOL will propose a requirement that the employer ensures that the plan’s objectives are met on a regular basis.  Just any plan will not do.  The plan must actually protect workers from violations of their workplace rights.

DOL also intends to use regulatory changes to produce greater openness and transparency in its compliance strategy.  Plan/Prevent/Protect is intended to encourage greater levels of compliance and enhance awareness among workers of their rights and benefits.  DOL also intends increased openness and transparency in the workplace to enable workers to report violations, which will assist the agency’s enforcement efforts and enhance compliance.

DOL cites the Wage and Hour Division’s (WHD) anticipated proposed rule on misclassification of employees under the Fair Labor Standards Act (FLSA) as an example of Plan/Protect/Prevent. WHD’s proposal would establish a requirement that employers provide workers with basic information about their employment, including how their pay is calculated. Any employer that seeks to exclude workers from the FLSA’s coverage would be required to perform a classification analysis, disclose that analysis to the worker, and retain that analysis to give to WHD enforcement personnel who might request it. 

OFCCP’s proposed rulemaking on Construction Contractor Affirmative Action requirements is one of the DOL regulations that will fall under the Plan/Prevent/Protect regulatory and enforcement strategy.  

A summary of the Plan/Prevent/Protect strategy is on the DOL Web site at:  “Regulatory Agenda Narrative.” 

EEOIMPACT will be following these and other OFCCP related developments and will provide more in-depth reporting and analysis to its senior corporate EEO and affirmative action members.  Please contact Patricia Schaeffer, Executive Director, at patricia.schaeffer@eeoimpact.com if you have any questions.