The Supreme Court’s 2022 Affirmative Action Cases and Their Impact on Employers

In this podcast, we discuss the cases before the Supreme Court of the United States, involving affirmative action or race-conscious admissions in higher education. Lauren Hicks of Ogletree Deakins’ Affirmative Action and OFCCP Compliance Practice Group and Jim Plunkett, Washington, D.C. shareholder and author of our weekly Beltway Buzz newsletter, summarize the recent oral arguments and the implications the decisions might have on employers. Lauren and Jim discuss the federal contractor affirmative action obligations under Executive Order 11246 and how those obligations contrast with affirmative action in the educational context. The podcast concludes with discussion of how the decisions in the college admissions cases might impact employment practices in diversity and inclusion or federal contractor OFCCP compliance.

Insights for Hiring and Employing Veterans: An Interview With Thought Leader, Sean Kelley

In this episode, Bud Bobber, who is a shareholder in Ogletree Deakins’ Milwaukee office and chair of the firm’s Manufacturing Industry Group, speaks to Sean Kelley, who is a nationally recognized thought leader in corporate military affairs, recruiting, and transition programs. Bud and Sean discuss the rationale for implementing an intentional strategy for recruiting, hiring, and employing veterans. The speakers also explain how veterans, as a diverse group, can be an important part of any company’s diversity, equity, and inclusion (DE&I) plan and how biases, conscious or otherwise, have often created impediments to having veterans in the workforce. This podcast also offers suggestions—in conjunction with our recent article, “Employing Veterans: Insights for Hiring Veterans and Supporting Veterans in the Workforce ”— for employers to tap into this rich stream of new talent continually flowing into the workforce as service persons transition to civilian life.

Dirty Steel-Toe Boots, Episode 12: Women in Construction and Safety

In this episode of Dirty Steel-Toe Boots, host Phillip Russell interviews Mandy Kustra, the safety director of Ajax Paving. Mandy is a leader in advocating for women in the construction industry and in safety careers. She explains how she got into construction and safety and how mentoring, advocacy, and building a network of support has helped other women do the same. Mandy also discusses personal protective equipment (PPE) fit in the construction industry, OSHA’s forthcoming standard clarification, and the importance of internal traffic control plans (ITCPs) in the transportation construction industry.

The Marijuana Conundrum in the Workplace: Balancing Staffing, Compliance, and Safety Concerns

As a growing number of state and local governments have passed laws legalizing marijuana use, employers have been faced with the need to balance competing needs and interests, including: recruitment and retention; compliance requirements, such as disability and medical marijuana accommodations; and the need to maintain a safe workplace. In this podcast, Mike Clarkson, co-chair of Ogletree Deakins’ Drug Testing Practice Group, offers valuable insights and tips for navigating the complex and evolving issues regarding marijuana in the workplace.

 

Global Recruiting: Understanding the Implications of a Contingent Workforce

In this podcast, Diana Nehro and Patty Shapiro discuss best practices for employers hiring global employees through third-party providers such as an employer of record (EOR), a professional employer organization, and a staffing firm. The speakers cover topics, including contracting with such vendors, the importance of understanding local labor laws, and strategies to address equity compensation. Stay tuned for the next installment of this series where Diana and Patty address the audience’s most common questions in this growing area of interest for employers with a global workforce.

OFCCP’s Renewed Focus on Construction Contractors

In this podcast, Scott Kelly, Morgan Epperson, and Chris Near of Ogletree Deakins’ Affirmative Action and OFCCP Compliance Practice Group discuss the increased attention the Office of Federal Contract Compliance Programs (OFCCP) has on the construction industry. After several years when OFCCP admittedly did not engage in significant construction enforcement work, prioritizing compliance audits of construction contractors has emerged as a top area of focus. The speakers discuss this change and share their insights on the compliance obligations where the agency has placed particular emphasis during their audits.

OFCCP’s Revised Compensation Directive

In this podcast, Lauren Hicks, Leigh Nason, and Scott Kelly discuss Directive 2022-01, which the Office of Federal Contract Compliance Programs (OFCCP) revised and renamed on August 18, 2022. The speakers cover how the new directive, which amends the agency’s guidance suggesting that federal contractors must perform annual pay equity audits to comply with affirmative action programming (AAP) regulatory requirements, walks back language regarding the documentation required to demonstrate compliance with compensation analysis obligations. The speakers also discuss how the revised guidance imposes new burdens for contractors and offer insights into the reasons fueling the agency’s changes regarding conducting compensation analyses and evaluations.

I-9 Changes, Updates, and Proposed Rulemaking From DHS

In this podcast, Joey Fong and Ceri Koski discuss the various changes that the U.S. Department of Homeland Security (DHS) has implemented since the pandemic, proposed rulemaking regarding the alternative verification options, and proposed I-9 form changes. The speakers discuss steps employers can take in anticipation of the October 31 expiration date of the temporary rule that had allowed employers to use remote or virtual verification of employment eligibility documents. They also cover the details on DHS’s proposed rule (which may still include a remote or virtual option), whether DHS will impose document retention requirements, and how alternative options might impact fraudulent document detection. Ceri and Joey also discuss the merits of the possible impending revisions to the I-9 form.

Dirty Steel-Toe Boots, Episode 11: Death by Suicide in the Construction Industry

In this episode of Dirty Steel-Toe Boots, host Phillip Russell has a raw and real conversation with the president of Ajax Paving Industries, Inc., Vince Hafeli, regarding his own personal experience as a suicide survivor and his mission to help others see death by suicide as an urgent workplace safety and health issue. Vince dispels the myths about death by suicide and discusses how Ajax’s ownership and executive team have opened the discussion at all levels of the company to encourage those in crisis to get help and to educate all employees on how to spot warning signs. Phillip and Vince discuss how all employers, especially those in the construction industry, can increase their own awareness and take action in addition to relaying practical tips and resources.

Dirty Steel-Toe Boots, Episode 10: Corporate Counsel’s Role Managing OSHA Compliance

In this episode of Dirty Steel-Toe Boots, host Phillip Russell has an enlightening conversation with Lori Baggett an in-house corporate counsel with responsibility for legal issues related to workplace safety and health and Occupational Safety and Health Administration (OSHA). Lori discusses how her experience as a former outside counsel helps her add value to her role as vice president and assistant general counsel. She  offers practical tips for in-house counsel who are responsible for OSHA matters, including for those who have limited experience in this area. Lori also shares some tips for in-house safety professionals on how to best work with their legal departments to improve safety and manage liability. Phillip and Lori have a candid and insightful discussion about diversity, equity, and inclusion in the legal profession.

OFCCP Facing FOIA Request for EEO-1 Reports: What The Disclosure of Type 2 Consolidated Reports Could Mean for Contractors

In this podcast, Scott Kelly and Lauren Hicks of Ogletree Deakins’ Affirmative Action and OFCCP Compliance Practice Group discuss the Freedom of Information Act (FOIA) request that the Office of Federal Contract Compliance Programs (OFCCP) received seeking the disclosure of data from EEO-1 reports. The broad request asks for the agency to disclose Type 2 Consolidated information filed by federal contractors between 2016 through 2020. Scott and Lauren cover the scope of the request, published guidance from OFCCP, and considerations when evaluating whether to submit objections to the release of the information by the September 19, 2022, deadline.

German Podcast Series—Germany’s New Employment Contract Requirements (English)

In this podcast, Andre Appel and Jacqueline Piran, attorneys in the Ogletree Deakins Berlin office, discuss significant amendments to German employment laws, which recently took effect on August 1, 2022. As a result of these changes, German law requires employers to provide employees with written documentation of the key terms and conditions of their employers that the employer prints and signs with wet ink signatures. Accordingly, German employers cannot fulfill these obligations with digital employment contracts. Jacqueline and Andre examine the new rules and the various measures employers may want to take to comply. (A German-language version of this podcast is available on the Ogletree Deakins podcast channel.)

Monkeypox in the Workplace: An Update on the Fast-Moving Developments for the Latest Health Crisis

In this podcast, Shareholder Kathy Dudley Helms—who represents a wide spectrum of employers, with a particular emphasis in the healthcare industry—and Of Counsel Val Butera—who focuses her practice on workplace safety and health matters—sit down with Jim McGrew, the firm’s Chief Client Services Officer to discuss the latest news, resources, and insights regarding monkeypox. The discussion includes tips for employers regarding their obligations—under the ADA, the FMLA, and OSHA’s workplace safety requirements—given the nature of monkeypox and its characteristics. The speakers also discuss issues that are on the forefront of employers’ minds as they consider policies regarding privacy, hygiene, travel, vaccine distribution, and protective gear.

Immigration and Summer Travel, Part II: Travel During the Green Card Process and H-1B Cap Processes, Requesting Emergency Advance Parole, and More

In part two of this podcast series, Claudia Martorell and Christina Kelley continue their informative discussion of issues that affect noncitizens who want to travel abroad. The speakers discuss single versus dual intent status, circumstances that may qualify for emergency advance parole, and the impact of H-1B and L-1 status, PERM and I-140 petitions, and F-1 student status on the ability to travel.

German Podcast Series—Game-Changing New Rules for German Employment Contracts

In this German-language podcast, Jacqueline Piran and Andre Appel from our Berlin office discuss major changes to German employment law effective August 1, 2022. Among other new obligations, employers are now required to provide all employees with written documentation—to be printed and signed with wet ink signature—on key terms and conditions of their employment; digital employment contracts will not suffice. Jacqueline and Andre examine these requirements and the different measures employers might consider taking to comply with the new legislation. This podcast is presented entirely in German. An English version of this episode is forthcoming. 

Immigration and Summer Travel, Part I: COVID-19 Travel Issues, Obtaining Visa Stamps, Automatic Visa Revalidation, I-94 documents, and Visa Validity Periods

In part one of this two-part podcast series, Claudia Martorell and Christina Kelley discuss a host of issues that affect noncitizens who want to travel outside of the United States. The speakers address COVID-19–related concerns, including how COVID-19 restrictions impact obtaining visa stamps abroad, automatic visa revalidation, I-94 documents, and visa validity periods. Stay tuned for part two of this travel series, which will cover travel while an H-1B petition is pending, travel while in the green card process, emergency advance parole, and more.

Visa Bulletin Updates and the Effect on H1-B Extensions: One Step Forward, Two Steps Back

In this podcast, Amanda Mullane and Jennifer Cofer discuss the forward movement in the U.S. Department of State’s Visa Bulletin and the challenges for foreign nationals seeking to extend their H1-B status. The speakers review the scenarios where this issue tends to arise and examine its impact on the green card process for new hires and existing foreign national employees.

Post-Pandemic Religious Accommodation Requests and Objections: The New Workplace Swords and Shields

In this podcast, James Paul and Michael Eckard discuss recent developments with regard to religious accommodations in the workplace, and how employees use these accommodations as both swords and shields in the workplace. Our speakers discuss recent litigation regarding religious accommodation requests—both those related to COVID-19 and those that are unrelated to the pandemic. James and Michael also delve deep into the recent disparate treatment Third Circuit Court of Appeals case (brought by an employee who asked to not be scheduled on Sundays), which provided insights on what constitutes an undue hardship.

Workplace Strategies Watercooler: OFCCP’s New Compliance and Enforcement Initiatives

In this podcast, Scott Kelly, co-chair of Ogletree Deakins’ Affirmative Action and OFCCP Compliance Practice Group, sits down with Hera Arsen, the firm’s director of content at Workplace Strategies, Ogletree Deakins’ national labor and employment law seminar for human resources professionals and in-house counsel, to discuss recent directives and regulatory initiatives from the Office of Federal Contract Compliance Programs (OFCCP). Scott examines the practical and legal implications of the changes in OFCCP’s position on covered contractors’ affirmative action plan obligations and the agency’s approach toward compliance reviews, sharing strategic considerations for contractors addressing these heightened demands. He also addresses the increased interagency coordination between OFCCP and the U.S. Equal Employment Opportunity Commission, providing insight into the potential compliance challenges that might come next for contractors.

Workplace Strategies Watercooler: Dirty Steel-Toe Boots, Episode 9—OSHA’s Focus on Heat Illness

In this podcast, recorded live from Workplace Strategies, Ogletree Deakins’ annual labor and employment law seminar for human resources professionals and in-house counsel, Phillip Russell and Karen Tynan discuss the Occupational Safety and Health Administration (OSHA)’s plans to develop a new heat illness standard. Phillip, who is the host of our Dirty Steel-Toe Boots podcast series, and Karen share their insights on what OSHA might include in the forthcoming heat exposure standard and examine the provisions of OSHA’s new national emphasis program (NEP) targeting industries where heat-related hazards may exist, highlighting strategies for reducing occupational heat-related injury and illness.

Workplace Strategies Watercooler: Conducting a Personnel Audit in California—A Step-by-Step Guide

In this podcast, recorded live at Workplace Strategies 2022, Ogletree Deakins’ national labor and employment law seminar for human resources professionals and in-house counsel, Los Angeles shareholder Betsy Johnson talks with Hera Arsen, the firm’s director of content, about the ins and outs of conducting personnel audits in California. Betsy shares strategies for conducting these understandably daunting audits and covers considerations unique to the most common form of audits—wage and hour—as well as highlighting common problems and pitfalls to avoid during the process.

Workplace Strategies Watercooler: Exploring Mental Health in the Workplace

Recorded live at Workplace Strategies, Ogletree Deakins’ national labor and employment law seminar for human resources professionals and in-house counsel, this podcast features a discussion with William Grob and Hera Arsen, Ph.D., about employee mental health as a key topic of workplace communications. Starting with a look into the social dynamics and complex considerations that have changed company cultures and employee perceptions, as well as expectations, about mental health in recent years, Bill examines the lingering toll of the COVID-19 pandemic on employee well-being and offers pragmatic tips on how to recognize and respond to employees who are experiencing mental health difficulties.

Workplace Strategies Watercooler: Navigating Employee Privacy Rights in California

In this podcast, recorded live from Workplace Strategies 2022, Ogletree Deakins’ national labor and employment law seminar for human resources professionals and in-house counsel, Los Angeles shareholder Betsy Johnson speaks with Hera Arsen, the firm’s director of content, about employee privacy rights under California law and the unique compliance challenges employers face as access to employee personal information increases with technological advancements. The speakers explore the tension between employers’ rights and obligations to safeguard their workplaces and the various invasion-of-privacy risks inherent in following employees on social media, handling medical records and personnel files, conducting background checks of job applicants, monitoring employee internet usage, and implementing drug-testing procedures. Betsy also discusses compliance steps that employers may want to consider taking to set employee expectations of workplace privacy.

Workplace Strategies Watercooler: New OFCCP Regulatory and Compliance Initiatives for Federal Contractors in 2022

In this podcast, recorded live from Ogletree Deakins’ 2022 Workplace Strategies seminar, Leigh Nason and Lauren Hicks discuss certain initiatives launched by the Office of Federal Contract Compliance Programs (OFCCP) that impose new burdens on federal government contractors and subcontractors to meet their Affirmative Action Program (AAP) obligations. Specifically, Leigh and Lauren examine the nuances of the new Contractor Portal certification process and OFCCP’s directive on pay equity audits, and share key takeaways as to compliance requirements.

Workplace Strategies Watercooler: An Interview With EEOC Vice Chair Jocelyn Samuels

In this podcast interview recorded live from Workplace Strategies, Ogletree Deakins’ annual labor and employment law seminar for human resources professionals and in-house counsel, Jocelyn Samuels, vice chair of the U.S. Equal Employment Opportunity Commission (EEOC), shares valuable insights on the agency’s current agenda and enforcement priorities, including the EEOC’s artificial intelligence fairness initiative, and offers guidance on the steps employers can take to remain compliant now and in the future. This insider interview with Vice Chair Samuels covers the evolution of the commission’s guidance on COVID-19–related issues and recent updates on key topics, including religious accommodations and caregiver discrimination.

Work Authorization for H-4, L-2, and E Dependent Spouses: Policy Updates

In this podcast, Kara Lancaster and Derek Maka discuss recent updates U.S. Citizenship and Immigration Services (USCIS) has made to its policy on work authorization for H-4, L-2, and E dependent spouses. The speakers explain the differences within USCIS’s new guidance, the filing strategies employers may see H-4, L-2, and E dependent spouses use to benefit from these changes, as well as the I-9 implications for employers.

In The Breakroom With Bill, Episode 6: Florida’s Stop WOKE Bill on Race and Identity and What It Means for Corporate Training Programs

In this episode of In The Breakroom With Bill, host Bill Grob is joined by Dee Anna Hays to discuss Florida’s House Bill 7, which, among other things, would prohibit employers from requiring that employees complete training or instruction “that espouses, promotes, advances, inculcates, or compels such individual to believe” specific claims constitute discrimination. Our speakers explain the details of the bill, in addition to the open questions presented by the statute, and how Florida employers might need to alter their training programs to bring them into compliance with the proposed law.

Options When Employees Are Not Selected for the H-1B Cap Lottery: The Luck of the Draw

The registration window for the fiscal year (FY) 2023 H-1B cap lottery closed on March 18, 2022, and U.S. Citizenship and Immigration Services is expected to notify registrants of the selection results by M arch 31, 2022. With demand expected to exceed the number of H-1B visas available, what options remain for foreign national employees who are not selected in the lottery? In this podcast, Katherine MacIlwaine and Katie Desmond address this question and explain the requirements for qualifying for other types of employment-based visas.

Employment Law Legends, Episode 7—Free Agency: Remaking Supervisor Liability in Faragher v. City of Boca Raton

When should employers be liable for the hostile work environment created by supervisors’ sexually harassing conduct? This episode examines the legal saga that untangled this question and the Supreme Court of the United States’ extraordinary decision to create the two-part Faragher-Ellerth affirmative defense.

Dirty Steel-Toe Boots, Episode 8: OSHA’s Attorneys

When the Occupational Safety and Health Administration (OSHA) conducts an inspection, issues a citation, and seeks enforcement of a contested citation, it has its own attorneys.  The U.S. Department of Labor’s Office of the Solicitor represents OSHA and provides the agency legal opinions and advice concerning all of its activities. In this episode of Dirty Steel-Toe Boots, host Phillip Russell is joined by former Solicitor and current Ogletree Deakins attorney, Jaslyn Johnson, to discuss the role of the Solicitor’s Office and what employers should understand about how OSHA works with its attorneys during inspections and enforcement actions.