by H. Juanita M. Beecher, Fortney & Scott, LLC
It’s early days to know exactly what a President Donald Trump will mean for federal contractors, but contractors can certainly speculate on what they would like a President Trump to do.
Most contractors hope President Trump will rescind President Barack Obama’s Fair Pay and Safe Workplaces (FPSW) Executive Order (EO) 13673. A federal judge has already blocked the final rule, but the paycheck transparency portion of FPSW is still scheduled to become effective on January 1, 2017. Many contractors share the concerns expressed by the federal court in blocking the blacklisting rule’s implementation.
Contractors also hope the election of Trump causes the Equal Employment Opportunity Commission (EEOC) to rethink its revision of the EEO-1 Report to add W-2 data and hours worked. The proposal will take effect in March 2018 over strenuous objections from employers that the revised EEO-1 won’t provide the EEOC and the Office of Federal Contract Compliance Programs (OFCCP) with usable compensation data.
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However, if the reporting requirements are to be changed, the Trump administration should act soon because employers are already expending a significant amount of time and effort to prepare for compliance.
Another order that may be at risk is EO 13672, which amended EO 11246 to add workplace protections for LGBT employees and job applicants. Most federal contractors offered protections for their LGBT employees and job applicants before the issuance of the EO. Some lawmakers have expressed their belief that protections for the LGBT community should be added in the form of protected classes under Title VII of the Civil Rights Act of 1964.
As to what the OFCCP might look like under the Trump administration, the Government Accountability Office (GAO) made a number of recommendations in a recently issued report for revamping the agency that are likely to be implemented.
Those recommendations include revising the OFCCP’s audit selection process to focus on contractors at the “greatest risk” of noncompliance. Other recommendations include having federal contractors submit their affirmative action plans annually and improving OFCCP staff training as well as outreach to contractors.
Other priorities under a Trump administration could range from increasing the contractual thresholds under EO 11246, Section 503 of the Rehabilitation Act, and the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA), to merging the OFCCP into the EEOC or eliminating the agency entirely.
Takeaway. It’s too early to know what the Trump administration will do with the OFCCP and the EEOC, but it’s likely that we’ll see fewer regulations and more input from contractors.
Paid Sick Leave: Are You Ready for Implementation on January 1?
The OFCCP regulations implementing President Obama’s EO 13706, establishing paid sick leave for employees of federal contractors, will be effective for new contracts, replacements for expiring contracts, renewed contracts, contract extensions, or modifications of existing contracts after January 1, 2017. The paid sick leave requirements apply to:
- Procurement contracts for construction covered by the Davis-Bacon Act (DBA);
- Contracts for services covered by the Service Contract Act (SCA);
- Contracts for concessions, including any concessions contract excluded from coverage under the SCA by U.S. Department of Labor (DOL) regulations at 29 CFR § 4.133(b); and
- Contracts in connection with federal property or lands and related to services for federal employees, their dependents, or the general public.
The requirements do not apply to contracts for manufacturing or furnishing materials, supplies, articles, or equipment to the federal government that are subject to the Walsh-Healey Public Contracts Act.
Covered contractors must provide employees 1 hour of paid sick leave for every 30 hours they work on a covered contract, up to a maximum of 56 hours (7 days) per year. Unused leave may be carried over, and returning employees can bridge their sick leave days.
Contractors do not have to pay employees for accrued but unused sick leave. In addition to using their paid sick leave to attend to their own or their family’s health issues, employees may use the leave for domestic violence or sexual assault issues.
The one concession to contractors is that they may use their current paid time off (PTO) policies to fulfill their obligation to provide paid sick leave to employees. However, contractors must review their PTO policies to ensure that they allow employees to accrue at least 56 hours of leave annually and to take leave for all of the reasons provided under the final paid sick leave regulations.
Takeaway. Federal contractors should review their PTO policies prior to January 1, 2017, to ensure they are compliant with the final paid sick leave regulations.
Recent Case Reinforces Need to Keep Self-ID Info from Hiring Managers
In Dougboh v. Cisco Systems, a Title VII lawsuit, the U.S. District Court for the District of New Jersey found that although an African-American man had applied for hundreds of jobs at Cisco Systems without being hired, he wasn’t able to link the company’s failure to hire to him to its collection of self-identification information.
Pascal Dougboh argued that Cisco’s hiring managers failed to interview him for jobs because of his race, citing the race and gender data the company collected from him and other applicants. Cisco was able to prove that hiring managers didn’t have access to that race and gender data. As a result, Dougboh failed to raise an inference of discriminatory intent.
Takeaway. It’s a best practice for federal contractors to keep employees’ self-identification data confidential and separate from the information available to hiring managers.