Mandatory Vaccination Policy Lawsuit Update: Nurses Take a Shot Against Hospital, But Judge Jabs Back

Many workplace leaders have been wondering, “Can we require employees to get the COVID-19 vaccine as a condition of employment?” According to a recent Ogletree Deakins benchmarking survey, most employers are not ready to implement mandatory vaccination policies, and 87.9 percent of employers reported that they currently do not plan to require workers to get the vaccine. On the other end of the spectrum, 7.6 percent of respondents have implemented (or are planning to implement) a vaccination mandate. The rest have been undecided, but a recent court opinion on the legality of such mandatory policies may shift some employers’ feelings about which direction they should go and when.

Many Federal Contractors Required to Increase Minimum Wage for Workers By 2022: Highlights of the Biden Administration’s New Executive Order

On April 27, 2021, President Joe Biden signed a new executive order (EO) requiring federal contractors and subcontractors to pay a $15.00 minimum wage to the thousands of workers who are working on or in connection with federal contracts. The new EO, titled “Executive Order on Increasing the Minimum Wage for Federal Contractors,” requires contractors to implement the higher minimum wage requirements by early 2022.

2019 and 2020 EEO-1 Component 1 Filing Site Is Now Open

After the U.S. Equal Employment Opportunity Commission (EEOC) delayed the collection of 2019 EEO-1 Component 1 data, April 26, 2021, now marks the opening of the 2019 and 2020 EEO-1 Component 1 filing site. The EEOC had extended the data collection period from the usual 10 weeks to 12 weeks, resulting in a July 19, 2021, filing deadline.

The Top 10 Labor and Employment Issues Keeping Retailers Up at Night in 2021

Now that the inauguration has passed and the Biden administration has begun its work, it is a good time for retailers to take stock of the labor and employment issues that are likely to assume prominence in 2021, and to consider preparing to meet the challenges each of these issues pose. In no particular order, below are the top 10 issues that are likely to keep retail employers up at night in 2021.

Biden Administration Revokes Diversity Training Restrictions and Takes Further Actions to Address Diverse Groups

President Joseph R. Biden Jr.’s flurry of executive actions upon his inauguration into office signals diversity, equity, and inclusion (DE&I) as a significant area of focus for the administration. As of January 26, 2021, President Biden has signed a total of more than 40 executive orders and actions aimed at addressing and reversing some of the most controversial orders of the prior administration, including a number of actions addressing DE&I matters. One of these—Advancing Racial Equity and Support for Underserved Communities Through the Federal Government (Executive Order (EO) 13985)—includes the much-anticipated revocation of EO 13950’s ban on diversity training content for federal agencies, contractors, and grant recipients.

OFCCP Director Update: Yang Replaces Leen as the New Director

According to the Office of Federal Contract Compliance website’s leadership team page, Jenny Yang has replaced Craig Leen as director of the agency. Yang previously served on the U.S. Equal Employment Opportunity Commission (EEOC) from 2013 to 2018 and served as a commissioner, vice chair, and chair for the agency (the latter from 2014 to 2017). Yang spearheaded the EEOC’s drive to collect pay data from private employers as part of the EEO-1 report.

EEO-1 Filers Must Wait a Little Longer—EEOC Announces Filing Platform Will Not Open Until April 2021

The U.S. Equal Employment Opportunity Commission (EEOC) issued a press release on January 12, 2021, notifying EEO-1 filers that the EEO-1 filing platform will not open until April 2021. This is of particular interest for employers because the EEOC delayed the 2019 EEO-1 filings, which would normally have been due in March 2020, due to the COVID-19 pandemic—meaning that both the 2019 and 2020 EEO-1 filings will be due this year.

Race and Sex Stereotyping Executive Order Subject to Preliminary Injunction

Some anticipate that President-elect Joseph Biden will revoke the Trump administration’s Executive Order (EO) 13950 that restricts the content of certain diversity-related workplace trainings. On December 22, 2020, the United States District Court for the Northern District of California issued a nationwide preliminary injunction in the case of Santa Cruz Lesbian and Gay Community Center d/b/a The Diversity Center of Santa Cruz v. Trump, holding that the plaintiffs had demonstrated (among other things) a sufficient likelihood of success on their claims that EO 13950 is unconstitutional on its face. The order, which went into effect immediately and on a nationwide basis, allows private federal contractors and federal grant recipients to conduct workplace training programs and related activities without facing penalties for “stereotyping” or “scapegoating” under EO 13950. While the injunction does not impact trainings provided to federal employees, on December 22, 2020, a group of U.S. Department of Justice (DOJ) employees circulated a letter calling for an official investigation into EO 13950 and related executive branch actions targeting diversity-and-inclusion programs.

OFCCP’s Fiscal Year 2020 Non-Financial Conciliation Agreements: A Review of the Past to Prepare for the Present and Future

Federal contractors and subcontractors have numerous affirmative action obligations and only so much time each day to devote to compliance. As a result, some requirements may tend to fall by the wayside as contractors focus on the more critical issues of ensuring equal employment opportunities in matters such as hiring, promotions, and pay. Even the smallest of the technical regulatory obligations, however, are important and serve a purpose—and, in fact, they can significantly enhance contractors’ affirmative action efforts by requiring regular, critical review and analysis of personnel practices.

How Is OFCCP Responding to EO 13950?

Since September 22, 2020, when President Donald J. Trump signed an executive order (EO) titled “Executive Order on Combating Race and Sex Stereotyping,” the Office of Federal Contractor Compliance Programs (OFCCP) rolled out several sources to provide guidance to federal contractors and subcontractors and other stakeholders on what to expect next.

New California Pay Data Collection Law Establishes March 31 Reporting Deadline

On September 30, 2020, California Governor Gavin Newsom signed California Senate Bill 973 into law as Government Code Title 2, Division 3, Part 2.8, Chapter 10, § 12999. The bill authored by Senator Hannah-Beth Jackson (Santa Barbara) is titled “Employers: annual report: pay data,” and it states that while “progress [has been] made in California in recent years to strengthen California’s equal pay laws,” there is still a significant gender pay gap and for women of color that pay gap is greater. To address these pay issues, the California Government Code’s new section 12999 requires pay data reports from covered employers and delegates additional powers to the California Department of Fair Employment and Housing relating to the new pay data reporting requirement. Section 12999 requires covered employers to file pay data reports no later than March 31, 2021, and on or before every March 31 thereafter.

The New ‘Race and Sex Stereotyping’ Executive Order Affecting Federal Contractors

On September 22, 2020, President Donald Trump signed an executive order titled “Executive Order on Combating Race and Sex Stereotyping.” The executive order follows a September 4, 2020, memorandum from Russell Vought, director of the Office of Management and Budget, and introduces requirements for government contractors conducting diversity and inclusion (D&I) trainings. It is clear from the order that covered contracts, subcontracts, and grants with the U.S. federal government must control for specific language related to workplace trainings, but the order otherwise lacks guidance about  changes covered contractors must make when training on D&I issues.

OFCCP Goes Live With Landing Pages for Its New Promotions and Accommodations Focused Reviews

The Office of Federal Contract Compliance Programs (OFCCP) recently announced that 2,250 supply and service contractor establishments would be scheduled for compliance reviews. OFCCP has identified 1,000 of these reviews as promotions and accommodations focused reviews (i.e., 500 promotions focused reviews and 500 accommodations focused reviews).

New Executive Order Calls for Review of Federal Contracts and Directs Agencies to Take Action to Protect U.S. Workers

On August 3, 2020, the Trump Administration issued an executive order  (EO) directing the secretaries of the Departments of Labor and Homeland Security to “take action … to protect United States workers from any adverse effects on wages and working conditions caused by the employment of H-1B [workers].”

OFCCP’s Veterans’ Focused Reviews are Here, Along With Resources for Covered Contractors

In August 2018, the Office of Federal Contract Compliance Programs (OFCCP) informed the contractor community of its intent to conduct compliance reviews focused solely on the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) regulations.  Since Directive 2018-04 was published, OFCCP released its 2019 Corporate Scheduling Announcement Letter (CSAL) supplement, which identified 500 contractor establishment locations for future VEVRAA focused reviews.

No Rest for the Weary—Government Contractors’ EEO-1 Deadline Delayed Due to COVID-19, but VETS-4212 Filings Still on Schedule

While the U.S. Equal Employment Opportunity Commission (EEOC) postponed the 2019 EEO-1 filing deadline due to the COVID-19 pandemic, the Veterans’ Employment and Training Service (VETS), which is in charge of the VETS-4212 filings, has taken no such action—which means that government contractors may want to begin preparing promptly for the September 30, 2020, filing deadline.

Is Your Organization Exempted From OFCCP Jurisdiction Under the VA MISSION Act?

The U.S. Department of Veterans Affairs (VA) Maintaining Internal Systems and Strengthening Integrated Outside Networks (MISSION) Act of 2018’s primary objectives are to provide veterans with greater access to health care in VA facilities and communities, to expand benefits for caregivers, and to improve the VA’s ability to retain and recruit the best medical providers.

EEOC to Fund Study of Employee Pay and Hours-Worked Data for 2017 and 2018

On July 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) announced that it had unanimously voted to fund a statistical study of the EEO-1 Component 2 data collected for 2017 and 2018. This additional EEO-1 data collection ordered by a federal district judge required employers to file reports showing employee pay and hours-worked information for 2017 and 2018.

EEOC Delays 2019 EEO-1 Filings and Ends Pay Data Collection—But What About the VETS-4212?

The Equal Employment Opportunity Commission (EEOC) recently announced a pair of major changes to the EEO-1 filing process. The most recent was on May 7, 2020, when the EEOC announced that due to the COVID-19 pandemic it was filing a notice in the Federal Register delaying collection of the 2019 EEO-1 report this year and requesting approval to collect both 2019 and 2020 EEO-1 data beginning in the first quarter of 2021.

Higher Education Federal Contractors: Is Your Supply Chain Compliant With the National Defense Authorization Act?

President Donald Trump signed the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (NDAA) (Pub. L. No. 115-232) into law on August 13, 2018. Section 889 of the NDAA applies to schools, including hospital systems, labs, and research affiliates, receiving federal contracts, grants, and loans. Specifically, § 889(a)(1)(A), which went into effect on August 13, 2019, prohibits an executive agency from “procur[ing] or obtain[ing] or extend[ing] or renew[ing] a contract to procure or obtain any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as a part of any system.”

OFCCP Lowers VEVRAA Hiring Benchmark for the Sixth Consecutive Year

The Office of Federal Contract Compliance Programs (OFCCP) announced the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) hiring benchmark for 2020. Effective March 31, 2020, the hiring benchmark will be 5.7 percent, down from 5.9 percent in 2019—marking the sixth reduction of the benchmark since its inception in 2014.