2018 Outlook: OFCCP/EEOC Enforcement Activity and Trends

Transcription

1 2018 Otlook: OFCCP/EEOC Enforcement Activity and Trends PREPARED EXCLUSIVELY FOR OHIO ILG FEBRUARY 8, 2018 Matthew J. Camardella Jackson Lewis P.C. Long Island (631) Jackson Lewis P.C.

2 Introdctory Statement THE MATERIALS CONTAINED IN THIS PRESENTATION WERE PREPARED BY THE LAW FIRM OF JACKSON LEWIS P.C. FOR THE PARTICIPANTS OWN REFERENCE IN CONNECTION WITH EDUCATION SEMINARS PRESENTED BY JACKSON LEWIS P.C. ATTENDEES SHOULD CONSULT WITH COUNSEL BEFORE TAKING ANY ACTIONS AND SHOULD NOT CONSIDER THESE MATERIALS OR DISCUSSIONS THEREABOUT TO BE LEGAL OR OTHER ADVICE. 2

3 Abot Or Affirmative Action & OFCCP Practice Grop Or Affirmative Action & OFCCP Practice grop of approximately 40 lawyers, statisticians and data analysts prepares over 4,000 affirmative action plans ( AAPs ) annally for or federal contactor clients. Since 2013, we have defended over 350 OFCCP adits, with a 99% sccess rate. As a law firm, we offer more than conslting services, we offer strategic thinking and sophisticated legal representation. We employ nine fll-time statisticians devoted to preparing privileged EEO pay analyses. 3

4 Abot Matthew J. Camardella Matthew Camardella is a Principal in the Long Island, New York office of Jackson Lewis P.C., and Co-Chair of the Firm s Affirmative Action Compliance and OFCCP Defense Practice Grop. He directs the preparation of more than 1,500 AAPs each year and has defended hndreds of OFCCP adits for a broad range of employers across the contry. In addition, Mr. Camardella serves as the Practice Grop lead on responding to OFCCP allegations of class-based discrimination. He spends significant time conseling clients abot the design and implementation of company-wide AAP strctres, applicant flow tracking systems, compensation practices and other complex real world compliance isses. Mr. Camardella also is General Consel to the American Association for Access, Eqity and Diversity (AAAED) and serves as Consel to the Philadelphia Liberty Indstry Liaison Grop (ILG). His work with AAAED and ILG keeps him abreast of OFCCP enforcement trends. Mr. Camardella joined Jackson Lewis in September, He received a B.A. from the College of the Holy Cross in 1993 and gradated with honors from Hofstra University School of Law in While at Hofstra, he was Editor-in-Chief of the Hofstra Labor Law Jornal and received the Award for Otstanding Performance in Labor and Employment Law. He is admitted to the New York State Bar. 4

5 EEO REGULATION AND ENFORCEMENT: WHAT TO EXPECT UNDER THE TRUMP ADMINISTRATION 5

6 Trends nder Obama Administration Strengthening eqal employment Actively promoting civil rights Aggressive enforcement of EEO laws Focs on expanding the law 6

7 Trmp Presidency Backgrond As of Janary 20, 2017, the U.S. has a Repblican President, and both hoses of Congress are led by Repblican majorities. Candidate-Trmp promised to reverse or eliminate many of the Obama Administration s employee-friendly enforcement positions and rles. Bt, Poplist Candidate-Trmp also carried working class voters. Some changes may be delayed while the new administration focses on larger initiatives, sch as trade, immigration, and the ACA. 7

8 What s in and What s Trmp(ed)? 8 Obama Initiative Trmp(ed) E.O , 13495, (workers rights) No E.O (poster) No Franken Amendment (Act of Congress, not Exective Branch) No

9 What s in and What s Trmp(ed)? 9 Obama Initiative Trmp(ed) VEVRAA (2011 revisions) No Section 503 (2011 revisions) No Minimm Wage for Contractors No

10 What s in and What s Trmp(ed)? 10 Obama Initiative Trmp(ed) E.O Pay Secrecy No EEO-1 Pay Data Collection OMB Stayed Indefinitely E.O LGBT protections Not yet*

11 What s in and What s Trmp(ed)? 11 Obama Initiative Trmp(ed) E.O Fair Pay and Safe Workplaces Yes E.O Paid Sick Leave No Discrimination based on sex No

12 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 12

13 Eqal Employment Opportnity Commission Under President Obama, the EEOC took aggressive enforcement efforts and prsed significant litigation in sch a reas as criminal backgrond checks, systemic discrimination, and LGBT protections. A Repblican Congress may allocate fewer fnds toward EEOC enforcement efforts. Under President Trmp, agencies sch as the DOL, EEOC, OFCCP, OSHA, and NLRB are expected to focs more on achieving employer compliance and less on enforcement. 13

14 Eqal Employment Opportnity Commission President Trmp nominated Janet Dhillon to fill the Chair position in Jne 2017 and Daniel Gade to fill remaining seat. Expect EEOC to contine its aggressive litigation stance : Lipnic has stated pblicly that she believes EEOC did not file enogh lawsits in Acting EEOC chairwoman Victoria Lipnic said that the EEOC "remains committed to strong enforcement of or federal eqal pay laws," and the decision "will not alter EEOC's enforcement efforts." 14

15 Eqal Employment Opportnity Commission President Trmp appointed Janet Dhillon, Repblican, to fill the Chair position General consel and Corporate Secretary for Brlington Stores, Inc. Unlikely to spport the initiatives of the previos administration given bsiness backgrond 15 Prior to Brlington, Dhillon served as in-hose consel for J.C. Penny Co. Inc. and U.S. Airways. Contribted to the campaigns of Repblican candidates for elected office, inclding John McCain, Rick Perry and Ted Crz

16 Eqal Employment Opportnity Commission President Trmp has appointed Daniel M. Gade to the last open spot on the EEOC Decorated war veteran who was wonded twice dring service in Iraq leading to the amptation of his entire right leg Holds an M.P.A. and Ph.D. in pblic administration and policy from University of Georgia and teaches at his alma mater, West Point, making him the only non-lawyer on the commission Worked on veterans isses, military healthcare, and U.S. disability policy in the George W. Bsh administration Appointed by John Boehner in 2015 to serve on the National Concil on Disability Has been an otspoken critic of disability pay for wonded veterans 16

17 Eqal Employment Opportnity Commission EEOC Strategic Enforcement Plan Incldes: (1) eliminating barriers in recritment and hiring; (2) protecting vlnerable workers; (3) addressing emerging isses; (4) ensring eqal pay; (5) preserving access to the legal system; and (6) preventing systemic harassment However, shift from expanding the law enforcing the law as it exists For example, nder Obama, EEOC expanded the law and took position that Title VII protects workers from discrimination based on sexal orientation and gender identity Circits are still ndecided on the isse Fewer new reglations likely, in favor of enforcing those already in place 17

18 EEOC LITIGATION 18

19 EEOC Targeting Certain Indstries For FY 2017, the EEOC has filed sit most often against five indstries. Retail Trade (15 lawsits) Accommodation and Food Services (14 lawsits) Health Care and Social Assistance (13 lawsits) Manfactring (10 lawsits) Administrative and Spport and Waste Management and Remediation Services (7 lawsits). 19

20 EEOC Becoming More Aggressive Under New Administration? 86 EEOC case filings in FY 2017 was a major increase from the 31 case filings broght in September Jly 2017 (20 case filings) Jly 2016 (8 case filings) Agst 2017 (20 case filings) Agst 2016 (8 case filings) 20

21 EEOC Litigation Statistics FY All Sits Filed Merits Sits Sits with Title VII Claims Sits with ADA Claims

22 Recent EEOC Cases and Settlements Eqal Employment Opportnity Commission v. Jones Lang LaSalle Americas, Inc., Civil Action No. 1:17-CV-4017-ELR-JSA - ADA violation when Company rescinded job offer from applicant after applicant disclosed diagnosis of PTSD and reqested to work remotely once a week to attend medical appointments. Reliable Nissan Agrees to Settle EEOC Race, Religion and National Origin Harassment Case - Conciliation between EEOC and Reliable Nissan over claims that two managers repeatedly sed racial epithets dring sales meetings and referred to African American, Native American, Mslim, and Hispanic employees in a demeaning manner. EEOC fond that the Company failed to take prompt action to stop the harassment and that employees who complained were retaliated against. Brossard v. First Tower Loan, LLC, Case No. 2:15-cv Former employee filed charge after being fired de to his transgender stats. EEOC broght sit on behalf of Brossard and entered in an 18-month consent degree by which the Company mst implement a new anti-discrimination policy addressing transgender stats and sex or gender preferences, expectations, or stereotypes. EEOC v. Evergreen Motors, dba Evergreen Kia, Civil Action No. 17-cv EEOC alleges that owner of Evergreen Kia harassed a car salesperson for sffering from Crohn s disease and for being homosexal. 22

23 THE OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS (OFCCP) 23

24 New OFCCP Director Ondray T. Harris 24 OFCCP Director, effective December 10, 2017 Senior Advisor at DOL Employment and Training Administration Exective Director of the D.C. Pblic Employee Relations Board Director DOJ Commnity Relations Service Depty Chief of Employment Litigation at Department of Jstice, Partner at LeClairRyan, practiced labor and employment law

25 OFCCP Stakeholder Meetings OFCCP condcted a series of meetings with employer representatives, civil rights grops, and government contractors Ondray Harris, Craig Leen (Special Advisor), and Debra Carr (Director of Policy) Acknowledged that OFCCP shold operate with with more transparency dring adits and collaborate with contractors Emphasis on apprenticeship programs More incentives for volntary compliance 25

26 OFCCP Approach 26 Under President Trmp-appointed DOL and OFCCP leadership, OFCCP may move away from aggressive, controversial enforcement methods and retrn to traditional theories of discrimination recognized by federal corts, as was the case nder the OFCCP dring the George W. Bsh Administration.

27 GAO Report on OFCCP The General Acconting Office recently issed a report critical of varios controversial OFCCP enforcement methods, inclding relying solely on statistical red flags withot any anecdotal evidence to spport claims of systemic discrimination. Recommendations in GAO Report: 1. Make changes to schedling list to focs on contractors with greatest risk of non-compliance 2. Develop mechanism to monitor AAPs on a reglar basis (collecting electronic AAPs and contractor certification of annal pdates) 3. Change schedling list to address changes in hman capital and does not rely exclsively on location 4. Provide timely and niform training to new staff and additional training opportnities for Compliance Officers 5. Review otreach and compliance assistance efforts and identify options for enhance contractor nderstanding of nondiscrimination and affirmative action reqirements 6. Assess existing contractor gidance to ensre contractors have information that helps better nderstand responsibilities regarding nondiscrimination and affirmative action. 27

28 Targeting Tech: GAO Report Diversity in the Technology Sector: Federal Agencies Cold Improve Oversight of Eqal Employment Opportnity Reqirements (November 2017) Why the focs on tech? What does this mean? OFCCP not compelled to follow GAO recommendations bt report can be inflential 28

29 Targeting Tech: GAO Report Recommendations in GAO Report: Chair of EEOC shold develop timeline to complete effort to clean IMS data for a one-year period and add missing indstry code data OFCCP Director shold analyze internal process data from closed evalations to better nderstand case of delays and improve OFCCP Director shold reqire contractors to disaggregate placement goals into sbminority grops OFCCP Director shold assess qality of methods sed by OFCCP to incorporate indstry disparities into process for selecting contractors for compliance evalations. It shold se this assessment to finalize procedres for identifying establishments at greatest risk for non-compliance 29

30 Targeting Tech: GAO Report Recommendations in GAO Report (contined): OFCCP Director shold evalate the crrent approach for choosing contractors for adits and determine whether modifications are needed to reflect crrent workplace strctres and locations or to ensre sbcontractors are inclded OFCCP Director shold evalate the FAAP to assess its seflness as an effective alternative to an establishment-based program and determine what improvements, if any, cold be made to better encorage contractor participation 30

31 RECENT OFCCP CASES AND SETTLEMENTS 31

32 OFCCP Discrimination Settlements Break Records in 2017 In the past fiscal year federal contractors paid $23 million to settle workplace discrimination charges. The crrent total more than dobles the settlements recovered by the OFCCP in $10.5 million recovered in 2016 v. $23 million recovered in Althogh there has been an increase in settlement amonts, the nmber of adits condcted and closed decreased de to a focs on in depth contractor reviews into companies pay practices.

33 Recent OFCCP Lawsits OFCCP v. Google: OFCCP soght to obtain a considerable amont of records and data from Google. Google did not comply with OFCCP s demand and filed sit against Google. On Jly 14, 2017, Jdge Steven Berlin issed a recommended decision and order, finding that a demand for data abot Google employees made the OFCCP is overbroad, intrsive on employee privacy, ndly brdensome, and insfficiently focsed on obtaining the relevant information. OFCCP appealed. 33 OFCCP v. Oracle: On Janary 18, 2017, the DOL filed sit alleging that Oracle had a systemic practice of paying white male workers more than their fellow co-workers in the same job title, which led to pay discrimination against female, African American, and Asian employees. Crrently in mediation. OFCCP v. JPMorgan Chase: OFCCP alleged that since May 15, 2012, JPMorgan paid at least 93 women less than men in comparable positions, even after other legitimate factors that wold lead to salary differences were taken into accont.

34 2017 OFCCP Cases and Settlements 34 State Street: $5 million settlement to more than 300 black and female exectives to settle allegations by OFCCP that it was paying them less than their with and male colleages. LexisNexis Risk Soltions: $1.2 million settlement of compensation discrimination claims for 211 females in exempt, noncommissioned operational leadership roles in their Florida and Georgia offices. Bank of America: $1 million settlement for alleged failre to hire Black applicant for entry-levels positions back in B&H Foto: $3.2 million settlement to resolve allegations of systemic hiring and compensation, and promotion discrimination, as well as harassment to more than 1,300 affected class members. Splnk: $2.7 million settlement of claims that Splnk failed to hire Blacks and Asians for Technical and Administrative Professional positions.

35 PAY EQUITY 35

36 OFCCP Directive 307 Under the Obama Administration, OFCCP removed all constraints on how the Agency can identify and investigate pay eqity isses Under Directive 307, OFCCP looked to aggregate mltiple jobs into pay analysis grops 36 Bigger, more dissimilar grops are more likely to prodce findings Avoids contractor attempts to slice and dice data Contrary to Title VII case law Under Trmp, expect a retreat on these isses enforce the law as it exists not psh the bondaries of the law

37 Aggressive State Pay Laws With potential retreat on eqal pay initiatives at federal level, states rshing to fill void The New Concepts: Pre-Hire Inqiry Ban on Salary History Comparable Work vs. Eqal Work Total Compensation Pay Transparency Anti-Retaliation Defenses Damages Recent lawsits against Google, Microsoft and Uber 37

38 Obama s Pay Transparency E.O 38 Cannot fire or otherwise discriminate against employees or applicants for asking abot, discssing, or disclosing pay (incldes spervisors) Employees who have access to compensation information as part of their essential job fnction are NOT allowed to discss this information with those who wold not otherwise have access, UNLESS: In response to formal complaint In frtherance of investigation Consistent with contractor s legal dty to frnish information While easily rescinded with a contervailing exective order, not seen as particlarly controversial or brdensome is still in effect

39 New EEO-1 Report (Jst Kidding) Wold have reqired employers with at least 100 employees to sbmit smmary pay data inclding W-2 pay and hors worked for their entire workforces. Filing deadline wold have been moved to March 31 of every year instead of September 30. Workforce snapshot pay period between October 1 and December 1 of reporting year instead of Jly September EEOC intended to pblish pay data by indstry and geography for employers to benchmark against Who else wold have sed the pay data? Unions, plaintiffs consel, competitors, the press... 39

40 Stats of New EEO-1 Report Office of Management and Bdget (OMB) Staged Component 2 (pay and hors data) on Jly 31, 2017 EEOC Directives for 2017 filing Deadline of March 31, 2018 Reports mst be based pon payroll period from October, November, or December 2017 Use the same form sed in

41 Changes Associated with New EEO-1 Report How to File an EEO-1 Report and 2017 EEO-1 User Gide released Employers with employees who reglarly report to client sites mst report sch employees on an appropriate EEO-1 report sing the address of the client site. What does reglarly report mean? Risk of adits if file Type 4 EEO-1 report for client location 41

42 PAID LEAVE

43 Paid Sick Leave for Federal Contractors Effective as of Janary 1, 2017 Applicable to limited types of contracts Mst provide 1 hor of paid sick leave for every 30 hors worked on or in connection with a covered federal contract, p to 56 hors (7 days) in a year or at any point in time. Employees can carry over p to 56 hors of nsed paid sick leave from year to year Employees may se paid sick leave for: 43 Their own illness or other health care needs, inclding preventive care; The care of a family member or loved one who is ill or needs health care, inclding preventive care; or Prposes reslting from being a victim of domestic violence, sexal assalt, or stalking or to assist a family member or loved one who is sch a victim.

44 Paid Family Leave President Trmp: My administration wants to work with members of both parties to make child care accessible and affordable [and] to help ensre that new parents have paid family leave. Dring campaign, Trmp proposed a plan dring a speech that sggested 6 weeks of paid maternity leave to mothers who do not receive it throgh their employers. Contrasts with traditional Repblican opposition to federally mandated paid leave 44

45 SEXUAL ORIENTATION & GENDER IDENTITY

46 LGBT Rights Under Obama 46 Exective Order Signed by President Obama Prohibits federal contractors from discriminating on the basis of sexal orientation and gender identity Dear Colleage Letter on Transgender Stdents Issed by Department of Edcation and Department of Jstice Protects the rights of trans stdents in schools and interprets the laws to allow stdents to align with gender identity

47 LGBT Rights Under Trmp 47 In Janary, President Trmp vowed to leave intact President Obama s LGBT Exective Order protecting rights for individals on the basis of gender identity and sexal orientation. Department of Edcation and Department of Jstice rescinded the Obama Administration s Dear Colleage Letter Trmp also signed an exective order related to religios liberty instrcting Attorney General Sessions to provide gidance to agencies on interpreting religios liberty protections. DOJ filed a brief with the U.S. Spreme Cort against inclding sexal orientation as protected nder Title VII of the Civil Rights Act.

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