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Departing from other federal appeals courts, the U.S. Court of Appeals for the Federal Circuit has held that Equal Pay Act plaintiffs must establish that the pay differential between similarly situated employees is “historically or presently based on sex” to make out a prima facie case. In Gordon v. U.S., No. 17-1845 (Fed. Cir. Sept. 7, 2018), two female emergency room physicians employed by a Veterans Administration hospital alleged they were underpaid compared to male…
Has your organization ever considered switching from “establishment” AAPs to functional affirmative action plans (“FAAPs”)?  OFCCP wants contractors to consider moving to FAAPs and, in that spirit, is looking to make FAAPs more attractive by proposing new FAAP requirements that would lighten the burden for those who apply for, and those that already have, FAAP agreements with OFCCP.  OFCCP last modified the FAAP requirements in 2016 but the program was significantly changed in 2013 to its current structure.…
The third of the three Directives OFCCP issued last Friday, Directive 2018-06 “Contractor Recognition Program” announces a program by which OFCCP will recognize contractors with “high-quality and high-performing compliance programs and initiatives.” Recognition is one of the four themes Acting Director Leen has spoken about recently and such programs are not a new concept in the Agency – some of you may recall OFCCP’s previous EVE Award program.   The Agency’s new Directive, however, describes a program having much more potential…
As we announced Friday, OFCCP has issued three new Directives in furtherance of its efforts to make the Agency more transparent and efficient.  New Directive 2018-07 “Affirmative Action Program Verification Initiative,” is aimed at expanding OFCCP’s enforcement reach and was previewed by Acting Director Leen at last month’s ILG National Conference.  As we like to say, we can’t predict when OFCCP will select a contractor’s establishment for audit, and OFCCP likes it that way because…
As we reported last week, in light of three Supreme Court cases addressing religious freedoms, OFCCP has issued a new Directive 2018-3 and a press release regarding “religion-exercising” organizations and individuals. The Directive cites three recent Supreme Court cases as well as Executive Orders issued by President Trump. With respect to the court cases, the Directive notes: Recent court decisions have addressed the broad freedoms and anti-discrimination protections that must be afforded religion-exercising organizations…
The New Jersey Department of Labor and Workforce Development has issued two reporting forms for the new Diane B. Allen Equal Pay Act: Contracts for Qualifying Services and Contracts for Public Works. To assist contractors with filing the forms, the state also has issued Instructions. The Equal Pay Act went into effect on July 1, 2018. Among many provisions, the Act requires pay data reporting by employers that provide services to New…
Early in the Trump Administration, it was proposed to move OFCCP into the EEOC.  Congress subsequently rejected the budget proposal containing the proposed merger and the idea was put to rest. Not to give up it’s quest to streamline the Administration and propose budget-saving measures, the Administration recently proposed a merger of the Departments of Labor and Education into an umbrella agency to be named The Department of Education and the Workforce.  According to a statement by Mick Mulvaney, Director of Office…
In the words of OFCCP, the contractors spoke and OFCCP listened.  OFCCP is also listening to the Government Accountability Office and its detailed review of the Agency. In response to the GAO’s Strengthening Oversight Could Improve Federal Contract Nondiscrimination Compliance report and on the heels of OFCCP’s Compliance Assistance Town Halls, the Agency has developed a path to address “three general areas of focus:  training, communication and trust” through a Town Hall Action Plan.  OFCCP reports it developed the…
New York Governor Andrew M. Cuomo continues his push to address the gender pay gap in New York. The latest is the release of a Department of Labor report commissioned by the Governor that recommends legislation barring all employers, public and private, from asking or searching for prospective employee’s salary history. In January 2017, the Governor signed two Executive Orders taking aim at the use of salary history to set wages for state employees and…
The Washington Legislature has sent Governor Jay Inslee a proposed Act that would significantly broaden the state’s Equal Pay and Opportunity Act. The Governor is expected to approve it. Pay Equity and Gender Following Title VII principles, the Act defines “similarly employed” as jobs requiring “similar skill, effort, and responsibility… performed under similar working conditions.” Pay differences may be based on other job-related, bona fide factors, such as “education, training or experience; a seniority system;…