Federal News & Analysis

  • EEOC announces plan to analyze EEO-1 Component 2 data

    On July 16, 2020, the Equal Employment Opportunity Commission (EEOC) announced that it had voted unanimously to fund a statistical study with the National Academies of Sciences, Engineering, and Medicine's Committee on National Statistics (CNSTAT) conducting an independent assessment of the quality and utility of the EEO-1 Component 2 data for fiscal years 2017 and 2018 (https://www.eeoc.gov/newsroom/eeoc-announces-analysis-eeo-1-component-2-pay-data-collection). The agency collected the employer pay data after a federal district court rejected the Trump administration's suspension of the Obama-era rule requiring it to do so.

  • U.S. Supreme Court won't review 9th Circuit's prior salary decision

    Earlier this year, the U.S. 9th Circuit Court of Appeals held that an employer cannot rely on an individual's salary history to rebut claims of disparate pay under the Equal Pay Act (EPA). In Rizo v. Yovino, a school district sought to defend itself against a female teacher's allegations of disparate pay by asserting that her compensation was based on her past salary and was therefore due to a "factor other than sex," which is an affirmative defense under the EPA. However, the court of appeals rejected that argument, holding that under the EPA, a defense based on "factors other than sex" must be limited to job-related factors. The court concluded that previous pay for a different job cannot be deemed job-related.

  • OFCCP director opens virtual NILG conference

    On Monday, July 6, 2020, Craig Leen spoke at what is likely his last National Industry Liaison Group (NILG) conference as director of the Office of Federal Contract Compliance Programs (OFCCP) since he is expected to soon be confirmed as inspector general at the Office of Personnel Management. Leen spent more than two hours discussing what he believes the agency has accomplished on his watch and provided insights into what he expects the agency to focus on for the rest of President Donald Trump's current term.

  • The intersection of pay equity and diversity

    Each year, many employers conduct robust pay equity analyses in an effort to identify whether they have a genderor race-based wage gap. They do that for myriad reasons, including to retain talent, mitigate the risk of litigation, and avoid public shaming. These well-intentioned employers make annual salary adjustments, hoping this will be the year they close the gap. Despite their best efforts, however, the stubborn pay gap persists.

  • OSHA issues COVID-19 FAQs about respirators, face masks, and face coverings

    With summer in full swing and federal and state restrictions being lifted, many employers that are reopening or ramping up business have sought to provide or require some form of respirator, face mask, or face covering for their employees. Depending on the type of face mask that's used and whether masks are mandated by the employer or merely permitted when employees opt to voluntarily use them, employers must follow certain requirements under the Occupational Safety and Health Administration's (OSHA) respiratory protection standard, 29 C.F.R. 1910.134 ( https://www.osha.gov/laws-regs/interlinking/standards/1910.134(a)/regulations) and perhaps other regulations. Last week, OSHA issued a series of FAQs (https://www.osha.gov/SLTC/covid-19/covid-19-faq.html) about face coverings to help employers navigate their obligations amid the COVID-19 pandemic.

  • Coronavirus antibody tests cannot be required, according to new EEOC guidance

    The Equal Employment Opportunity Commission (EEOC) updated its coronavirus guidance on June 16, 2020, to state that employers cannot require COVID-19 antibody testing before employees return to work (https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-lawson). The guidance echoes advice from the Centers for Disease Control and Prevention (CDC) that "employers should not use antibody tests to make decisions about returning persons to the workplace."

  • Female attorneys at Jones Day can pursue pay discrimination claims

    The U.S. District Court for the District of Columbia has rejected a bid by Jones Day to dismiss the claims of six female attorneys who allege that the firm's pay practices have a disparate impact on women. Specifically, the court found that the former employees' complaint adequately described how the firm's practices, including a "black-box" pay system and policies prohibiting coworkers from discussing their compensation, discriminated against female attorneys.

  • What is to be done with the state of our country?

    The view from K Street has special meaning this month. Offices and storefronts are boarded up from 14th St. to 22nd and beyond. From our (unoccupied) office near Connecticut and K, you can see the looted CVS, struggling to reopen.

  • CDC issues expanded reopening guide as pressure for clearer standards grows

    Under increasing pressure to provide substantive guidance to businesses poised to reopen and rebound from the pandemic, the U.S. Centers for Disease Control and Prevention (CDC) has issued a 60-page guide believed to be a modified version of a longer document previously barred from publication by the White House. Although the CDC publication isn't an enforceable, mandated health order, it contains the most detailed recitation yet of steps healthcare systems, communities, and certain businesses can follow to stem the expansion of COVID-19.

  • DOL rule provides for secretary oversight of ARB rulings

    The U.S. Department of Labor (DOL) published a final rule giving the secretary of labor the authority to review, modify, and overturn decisions of the Administrative Review Board (ARB). The ARB makes administrative rulings on matters involving federal contract pay discrimination, wage and hour violations, and whistleblower cases, among others. This controversial position generated a small storm of opposition, but the DOL concluded "that none of the comments required refraining to make the revisions." The ARB was established in 1996 to act on behalf of the secretary, who, in the past, had discretion to rule in these matters.