Leslie Stout-Tabackman. Eric J. Felsberg. Jackson Lewis P.C. Washington, D.C. Region

Transcription

1 Eric J. Felsberg Jackson Lewis P.C. Long Island Leslie Stout-Tabackman Jackson Lewis P.C. Washington, D.C. Region Jackson Lewis P.C.

2 About the Speakers: Eric Felsberg Eric J. Felsberg is a Principal in the Long Island Office and the National Director of the Analytics Group at Jackson Lewis P.C. As the National Director of the Analytics Group, Mr. Felsberg leads a team of multi-disciplinary lawyers, statisticians, and analysts with decades of experience managing the interplay of data analytics and the law. Under Mr. Felsberg s leadership, the Analytics Group applies proprietary algorithms and state-of-the-art modeling techniques to help employers evaluate risk and drive legal strategy. In addition to other services, our group of lawyers and statisticians partners with employers to assess compliance with, and exposure under, wage-hour laws, conduct compensation equity studies, evaluate pre- and post-employment assessments, review reorganization plans and selection systems for evidence of impact, and leverage the use of analytics in defense of systemic discrimination claims. The group also provides analytics support to employers during labor relations negotiations, optimizes talent management and equity and policy practices through the use of machine learning techniques, and synthesizes data files into analyzable format. The Analytics Group designs its service delivery models to maximize the protections afforded by the attorney-client and other privileges. Mr. Felsberg also provides training and daily counsel to employers in various industries on day-to-day employment issues and the range of federal, state, and local affirmative action compliance obligations. Mr. Felsberg works closely with employers to prepare affirmative action plans for submission to the Office of Federal Contract Compliance Programs (OFCCP) during which he analyzes and investigates personnel selection and compensation systems. Mr. Felsberg has successfully represented employers during OFCCP compliance reviews, OFCCP individual complaint investigations, and in matters involving OFCCP claims of class-based discrimination. He regularly evaluates and counsels employers regarding compensation systems both proactively as well as in response to complaints and enforcement actions. He is an accomplished and recognized speaker on issues of workplace analytics and affirmative action compliance. Mr. Felsberg graduated from Hofstra University School of Law where he served as the Editor-in-Chief of the Hofstra Labor & Employment Law Journal. He is admitted to the Bar of the State of the New York as well as the U.S. District Courts in the Eastern and Southern Districts of New York. 2

3 About the Speakers: Leslie Stout-Tabackman Leslie Stout-Tabackman is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She regularly counsels and represents clients with matters before the U.S. Department of Labor s (DOL) Wage and Hour Division, including Fair Labor Standards Act (FLSA) issues and prevailing wage and benefits issues arising under the Service Contract Act (SCA) and the Davis-Bacon Act (DBA). Her prevailing wage practice includes counseling federal contractors and providing comprehensive training on SCA and DBA prevailing wages and benefits requirements, coverage, exemption and worker classification issues, and related contracting procedures from the solicitation and bid stage through completion of the contract. Her wage and hour practice includes advising clients on compliance with the minimum wage and overtime obligations of the FLSA and state wage and hour laws, including classification of positions as exempt or nonexempt, overtime requirements for nonexempt employees, compensation policies for exempt employees, conducting voluntary FLSA compliance audits, and providing education and training sessions for clients on these topics. She regularly represents clients facing DOL FLSA, SCA and DBA audits and has advised and represented clients on these matters before the DOL s Administrative Review Board. Ms. Stout-Tabackman is a frequent speaker at seminars and conferences on wage and hour and prevailing wage law matters, including presentations for the Practicing Law Institute, the Power & Communications Contractors Association, and several events hosted by the National Association of Mortgage Brokers and state -affiliated mortgage brokers associations regarding wage and hour compliance in the mortgage industry. In addition, she has developed and co-taught a course on prevailing wage laws and co-taught a course on covenants not to compete for the District of Columbia Bar s Continuing Legal Education program. She is a current contributing editor to The Fair Labor Standards Act (BNA-ABA publication) and a current senior editor of Wage and Hour Laws: A State-by-State Survey (BNA-ABA publication). While attending law school, Ms. Stout-Tabackman served as Editor-In-Chief of the American University Law Review, received the Outstanding Graduate Award, and was elected to the Washington College of Law s Honor Society. 3

4 Department of Labor: Labor Secretary President Trump selected R. Alexander Acosta as his nominee, a former member of the NLRB, after Andrew Putzer nomination withdrawn on February 15th. Bi-partisan support. Labor union support. Prior confirmations. Senate confirmed Acosta April 27 in a 60-to-38 vote with eight Democrats and one independent voting in favor of him. Under the Trump Administration the DOL is expected to focus more on achieving employer compliance and less on novel and expansive theories of enforcement. But vigorous enforcement likely to continue. 4

5 Department of Labor: Overtime Rule Texas District Court issued a nationwide preliminary injunction enjoining the DOL from implementing and enforcing its final overtime rule, scheduled to take effect December 1, DOL appealed to the Fifth Circuit Court of Appeals but has requested multiple extensions, now to June 30, to file appeal brief. Trump could direct the DOL to withdraw its appeal and settle the pending case allow court to issue permanent injunction DOL could rescind the Final Rule and engage in new rulemaking. Acosta has signaled his own views during confirmation hearing. 5

6 DOL Opinion Letters Under President Obama, the DOL stopped its longstanding practice of issuing opinion letters signed by the Administrator of the Wage and Hour Division, and instead issued infrequent Administrator Interpretations with wider applicability, but less specificity. The practice of issuing official opinion letters regarding application of the FLSA and FMLA (and prevailing wage laws) may be restored. Under Trump Administration, new opinion letters may be issued on a variety of topics and may scale back or reverse Administrator Interpretations under Obama. Two significant Administrator Interpretations have been issued in the past two years one concerning joint employment and the other addressing independent contractor status under the FLSA. 6

7 Wage Hour Division Audits Activity levels. Focus areas. New data system to track and link companies. Liquidated damages. Statute of Limitations audit period. Civil Monetary Penalties. Press releases. 7

8 OFCCP Focus on Adverse Impact OFCCP continues to rigorously investigate areas of impact in selection decisions hires, promotions, and terminations. OFCCP has had success issuing violations for failure to hire claims and seeking make-whole relief. 8

9 OFCCP Focus on Equal Pay Under the Obama Administration, OFCCP removed all constraints on how the Agency can identify and investigate pay equity issues. Under Directive 307, OFCCP looked to aggregate multiple jobs into pay analysis groups. Bigger, more dissimilar groups are more likely to produce findings. Avoids contractor attempts to slice and dice data. Contrary to Title VII case law. Under Trump, expect a retreat on these issues enforce the law as it exists not push the boundaries of the law. Likely to revert back to a similarly situated standard. 9

10 Trump on Pay Equity Ivanka Trump: Politicians talk about wage equality, but my father has made it a practice at his company throughout his entire career. He will fight for equal pay for equal work, and I will fight for this too, right alongside of him. President Trump: When you have to categorize men and women into a particular group and a particular pay scale, it gets very because people do different jobs. It s very hard to say what is the same job. It s a very, very tricky question. And I talked about competition with other places and other parts of the world This is one of the things we have to look at very strongly. 10

11 New EEO-1 Report Requires employers with at least 100 employees to submit summary pay data including W-2 pay and hours worked for their entire workforces. Filing deadline now March 31 of every year instead of September 30. Workforce snapshot pay period between October 1 and December 1 of reporting year instead of July September. EEOC will publish pay data by industry and geography for employers to benchmark against. Status of new EEO-1 report on thin ice. Chamber of Commerce. - Wrote letter to OMB urging OMB to rescind its 2016 approval. Real question is how it will be eliminated. 11

12 EEO-1 Report 12 26

13 Some Additional OFCCP Notes We are waiting on the naming of a new head of OFCCP. For now, it is business as usual OFCCP recently sent out 800 advance notice audit letters and OFCCP has been actively auditing contractor establishments. OFCCP has released its revised VEVRAA hiring benchmark for The Agency has lowered the benchmark to 6.7 percent, down from the previous 6.9 percent mark. 13

14 Status of Key Obama Executive Orders Aimed at Federal Contractors LGBT Non-Discrimination EO Human Trafficking EO Pay Transparency EO Minimum Wage EO Paid Sick Leave EO Fair Pay & Safe Workplaces EO

15 Executive Order 13672: LGBT Non- Discrimination Prohibits discrimination on the basis of sexual orientation and gender identity effective April Covers all types of contracts. Requirements. Changes to EEO tagline. Changes to EO clause in contracts. EEO is the Law poster to be updated. Review of Non-Discrimination Policies. 15

16 Status Currently in effect. President Trump has announced the EO will remain intact. But Department of Education and Department of Justice rescinded the Obama Administration s Dear Colleague Letter, which protects the rights of trans students in schools and interprets the laws to allow students to align with gender identity. Trump also signed an executive order related to religious liberty instructing Attorney General Sessions to provide guidance to agencies on interpreting religious liberty protections. 16

17 Executive Order 13627: Human Trafficking Effective March 2, 2015 for new solicitations only. Applies to all procurement contracts regardless of $ value Applies to contracts for commercial items and COTS which are not subject to many FAR requirements. Contractors, their employees and their agents shall not: engage in severe forms of trafficking in persons ; procure commercial sex acts ; use forced labor in performance of the contract; 17

18 Status Currently in effect. Likely to remain in effect but with technical changes to requirements for contracts performed outside of the United States. 18

19 Executive Order 13665: Non-Retaliation for Disclosure of Compensation Information Applies to contracts entered into on or after January 11, Prohibits discrimination against any applicant or employee who has inquired about, discussed or disclosed pay information of an employee or applicant. Employees who have access to compensation information as part of their essential job function are NOT allowed to discuss this information with those who would not otherwise have access, UNLESS: In response to formal complaint. In furtherance of investigation. Consistent with contractor s legal duty to furnish information. 19

20 Status Currently in effect. Concerns focus on use of discrimination used in EO which is easier proof burden for applicant/employee than for retaliation. On the hit list for U.S. Chamber of Commerce and House Freedom Caucus. May be rescinded. 20

21 Executive Order 13658: Federal Contractor Minimum Wage Effective for new solicitations and contracts on or after January 1, Contract coverage: Construction contracts covered by the Davis-Bacon Act (DBA). Contracts covered by the Service Contract Act (SCA). Concessions contracts, including any concessions excluded from the SCA. Contracts in connection with federal property or lands related to offering services to federal employees, their dependents, or general public. $10.10 an hour on new solicitations and contracts after January 1, 2015, $10.15 for 2016, $10.20 for 2017 (annual increases). Workers covered: Employees directly performing work on covered contracts (only for hours worked on contracts). Employees performing work in connection with the contract (20% threshold). 21

22 Status Currently in effect. Because the wage rate is relatively low, may remain in effect. But 20% threshold coverage administration and coverage of leases and concessions seen as burdensome. On the hit list for U.S. Chamber of Commerce and House Freedom Caucus. 22

23 Executive Order 13706: Paid Sick Leave Effective now for new/modified solicitations and contracts issued on or after January 1, Covered contracts are same as those covered by Federal Contractor Minimum Wage EO. Current contracts can be amended to include requirement. Requires up to 7 days/56 hours paid sick leave. Workers covered: Employees directly performing work on covered contracts (only for hours worked on contracts). Employees performing work in connection with the contract (20% threshold). Includes exempt employees. 23

24 Status Currently in effect. Seen as costly and burdensome for contractors, particularly small businesses and those that lease space or hold concession agreements. Burdensome and disruptive to conform other leave benefits in place with these requirements. On the hit list for U.S. Chamber of Commerce and House Freedom Caucus. Unchanged for now but may be rescinded as part of broader legislative effort around paid leave. 24

25 Executive Order 13673: Fair Pay and Safe Workplaces Requires government contractors and subcontractors to report to government regularly on violations of 14 workplace laws and Executive Orders, and state law equivalents. Agencies will use information to determine whether a contractor is a responsible employer during the award process and, for awarded contracts, whether the contract will be continued, cancelled or worse. Agencies will assess whether the contractor has engaged in serious, repeated, willful or pervasive violations of the laws. Pay transparency on pay stubs for all workers including hours worked and overtime by work week. For contracts and subcontracts in excess of $1 million, restricts use of pre-dispute arbitration agreements for claims arising under Title VII or tort claims for sexual assault or harassment. 25

26 Status On March 7 th the Senate passed a Joint Resolution, authorized by the Congressional Review Act and previously passed by the House, that disapproves the EO s regulations. Trump signed the JR on March 27, 2017 and issued his own EO rescinding the FPSW EO. Regulations no longer are in effect and the pending lawsuit is moot. 26

27 THANK YOU With 800 attorneys practicing in major locations throughout the U.S. and Puerto Rico, Jackson Lewis provides the resources to address every aspect of the employer/employee relationship. 27