OFCCP Extends Deadline for Individualized Objections From Federal Contractors to Production of Their 2016-2020 EEO-1 Data in Response to FOIA Request

 As covered in a previous alert, on August 19, 2022, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) notified its federal contractor base that it received a request under the Freedom of Information Act (FOIA) from the Center for Investigative Reporting (CIR) for all Type 2 Consolidated Employer Information Reports, Standard Form 100 (EEO-1 Report), filed by federal contractors and first tier subcontractors from 2016-2020.

Contractors initially had until September 19, 2022, to file individualized objections to the production of their EEO-1 reports. Importantly, the OFCCP has extended the deadline to file an objection to October 19, 2022, to allow contractors sufficient time to ascertain whether they are covered by the FOIA request and submit objections.

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NLRB Releases Notice of Proposed Rulemaking to Increase Scope of Joint Employment Relationships

On September 6, 2022, a split National Labor Relations Board (NLRB or the Board) released its long-anticipated Notice of Proposed Rulemaking that would lessen the burden in proving that two companies jointly employ workers under the National Labor Relations Act (NLRA). This proposed standard, in effect, would increase the scope of joint employment relationships to include indirect and unexercised control over the essential terms and conditions of a job. In contrast, the prior standard — adopted in April 2020 by a Republican-majority Board — required that an employer have direct and immediate control over these essential terms and conditions. Moreover, the putative joint employer had to actually exercise that control. Before that, in 2015, a Democrat-majority Board issued a decision holding that a company need only hold indirect control over the terms and conditions of employment to be considered a joint employer.

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California Governor Gavin Newsom Signs Pay Transparency Bill

On September 28, California Governor Gavin Newsom signed SB 1162 into law, effectively amending Section 12999 of the Government Code and Section 432.3 of the Labor Code, which expands pay data reporting obligations, requires certain-sized employers to provide the pay scale for an open position in job postings and imposes new record-keeping requirements. It will become effective on January 1, 2023.

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OFCCP Launches Notification of Construction Contract Award Portal

On August 26, 2022, the Office of Federal Contract Compliance Programs (OFCCP) launched its Notification of Construction Contract Award Portal (NCAP). The NCAP is a new online platform for contracting officers, applicants, contractors, and subcontractors to submit notice to the OFCCP of a construction contract or subcontract.

The OFCCP’s construction regulations require federal construction contractors to give written notice to the OFCCP within 10 working days of awarding a construction subcontract of more than $10,000 at any tier for construction work performed under a federal or federally assisted construction contract. 41 C.F.R. § 60-4.2(d)(3). Federal contracting officers, applicants for construction contracts, and non-construction contractors (in some circumstances) are also responsible for providing this notice. Id. §§ 60-4.2(b)–(c). The OFCCP uses this information to determine jurisdiction and to schedule construction contractors and subcontractors for compliance evaluations. The OFCCP has developed NCAP so that contractors can submit Form CC-314 information electronically. The OFCCP states that it also plans to use NCAP as the primary source for entering, tracking, and submitting contract award notifications for review by the agency.

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Maryland Court of Appeals Holds State Law Wage Claims Despite Federal Wage Law

On July 13, 2022, Maryland’s Court of Appeals, the state’s highest court, held that state wage law claims for certain travel pay survive summary judgment despite the fact that such payments are not required under the federal Portal-To-Portal Act (PPA or the Act). The Court of Appeals interprets Maryland law as requiring wage payments for time spent waiting and traveling to a worksite if the waiting site is considered a prescribed workplace.

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NLRB Embraces Stringent Review of Employer Dress Codes

On August 29, the National Labor Relations Board (NLRB or the Board) overturned a 2019 decision concerning the lawfulness of employer-promulgated dress codes and workplace apparel policies. In Tesla, Inc., the Board majority held that a workplace rule or policy that limits an employee’s ability to wear union insignia and logos is presumptively unlawful unless the employer can show that special circumstances exist to justify such a rule.

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