Federal News & Analysis

  • Hy-Brand matter reveals political questions at NLRB

    If there were any doubt that the National Labor Relations Board (NLRB) remains the agency most affected by the political changes that have consumed Washington, the recent oscillations about the Hy-Brand decision should end all discussions.

  • OSHA 'look-back' window to issue repeat citations is unlimited

    The 2nd Circuit recently issued an opinion granting the Occupational Safety and Health Administration (OSHA) the ultimate leeway to characterize citations as "repeat." The case involved a repeat excavation-related OSHA citation issued to Triumph Construction Corp. in 2014. OSHA based the repeat characterization on a prior violation of the same excavation standard confirmed against Triumph from 2009.

  • Gustafson nominated as EEOC general counsel

    President Donald J. Trump has nominated Sharon Fast Gustafson to be general counsel of the Equal Employment Opportunity Commission (EEOC) for a term of four years. For 26 years, Gustafson has practiced before the EEOC and the federal courts in a wide variety of employment-related disputes. After receiving her JD with honors from Georgetown University in 1991, she worked in the labor and employment law section of Jones Day. Since 1996, she has been engaged in the solo practice of law, advising and representing both employees and employers.

  • EEOC discusses employers' obligations in light of #MeToo

    On Tuesday, March 20, 2018, Equal Employment Opportunity Commission (EEOC) Acting Chair Victoria Lipnic opened an employer forum on #MeToo with an explanation of how the EEOC anticipated the #MeToo phenomenon as early as 2010. According to Lipnic, when she joined the EEOC as a commissioner in 2010, she was struck by the number of complaints involving harassment. In fact, she was told that the agency could have a docket of nothing but harassment cases generally and sexual harassment cases specifically.

  • OMB, civil rights groups tussle over halted EEO-1 changes

    The Office of Management and Budget (OMB) continues to clash with civil rights groups over the agency's decision last August to halt an Obama-era rule that would have required employers to turn over detailed employee compensation and hours-worked data as part of their annual EEO-1 filing. Most employers with 100 or more employees are required to submit a yearly EEO-1 form with the Equal Employment Opportunity Commission (EEOC) that provides a breakdown of their workforce by race/ethnicity, gender, and job category.

  • Courts hold Title VII protects against sexual orientation, transgender bias

    Two federal appeals courts have issued decisions holding that Title VII of the Civil Rights Act of 1964's prohibition against sex discrimination also prohibits discrimination on the basis of sexual orientation and transgender status.

  • Senate considers measures to combat harassment in congressional workplace

    On February 6, 2018, the U.S. House of Representatives voted to approve two measures that would strengthen protections for congressional staffers against workplace sexual harassment. The measures—H.R. 4924, the Congressional Accountability Act of 1995 Reform Act (the CAA Reform Act), and H. Res. 724—are now under consideration by the Senate.

  • OFCCP Director Harris issues first guidance

    Office of Federal Contract Compliance Programs (OFCCP) Director Ondray Harris' first public act as director is to require a national uniform practice at an agency not known for its uniformity. In Directive 2018-01, Harris directed the regional and district directors to issue Pre-Determination Notices (PDNs) in every compliance evaluation in which the agency believes either individual or systemic discrimination findings may exist. Contractors will then have 15 calendar days to rebut the OFCCP's proposed findings. Further, every PDN must be reviewed by the appropriate solicitor's office before being forwarded to the national office for final review. The new directive takes effect immediately, and any Notice of Violation (NOV) not yet issued must be withheld until a PDN is issued "to allow contractors an opportunity to respond to the agency's preliminary findings."

  • DOL secretary takes heat over controversial tip-pooling rule

    One of the more unpopular rules promulgated by the U.S. Department of Labor (DOL) under President Barack Obama was the 2011 tip-pooling regulation that provided employees "who customarily and regularly receive tips," such as waiters and busboys, cannot be required to share their tips. On December 4, 2017, the DOL's Wage and Hour Division (WHD) released a proposed rule to rescind the 2011 regulation and allow employers to require front-of-house employees (e.g., waiters) to share their tips with back-of-house employees (e.g., dishwashers). DOL Secretary Alexander Acosta indicated the limited nature of the rule by stating: "Our proposal only applies where an employer pays a full minimum wage and does not take the tip credit." The comment period closed on February 5, 2018.

  • Combating the substance abuse epidemic through employee benefit programs

    Although the prevalence of drug and alcohol addiction among Americans has been no secret, the rapid ascent of the opioid epidemic in recent years has thrust the issue of substance abuse back into the public eye. In addition to the damage addiction causes individuals and their families, the estimated economic costs of employee substance abuse—a staggering $442 billion in annual losses due to decreased worker attendance, lower productivity, and poor health—have grown into a financial leviathan for employers. But because nearly 16 million (75 percent) of the estimated 21 million Americans who suffer from addiction are part of the workforce, two particular types of benefit programs, if more widely adopted and utilized, could play a meaningful role in combating a disorder that many consider to have reached "epidemic" status.