On January 25, Associate Attorney General Rachel Brand issued a memorandum that limits the use of guidance documents issued by federal agencies in civil enforcement litigation by the Department of Justice (DOJ). The memorandum, referred to as the Brand Memo, prohibits the agency’s litigators from using guidance documents to establish violations of applicable statutes or regulations. Federal guidance documents are designed to clarify legal information, respond to questions, and inform the public. According to the Brand Memo, they should not be used to “create binding requirements that do not already exist by statute or regulation.” In other words, the documents can’t be used, on their own, to signal non-compliance, nor are they to be used as additional legal obligations or a substitute for rule-making.
As previously reported, the Veterans Employment and Training Service (VETS) has released details about a new program designed to recognize employers with a strong track record in hiring and retaining Veterans.
The practice of hiring interns has become widely recognized across different organizations. Determining whether an intern is considered an “employee” under the Fair Labor Standards Act (FLSA) has been a troubling task for most organizations until now. The Department of Labor has recently updated Fact Sheet #71: Internship Programs under the Fair Labor Act, and have adopted a “primary beneficiary test” that has been used by the courts to determine whether an intern (or student) is an employee under FLSA.
On January 12, 2018, the Department of Labor published its semiannual regulatory agenda. There were no items on the agenda for the Office of Federal Contract Compliance Programs (OFCCP), with the Occupational Safety and Health Administration being the only department expecting any rule changes in the coming year. This means no regulatory updates are expected for OFCCP as the agency adjusts to working under the new Director, Ondray T. Harris.
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In October, Office of Federal Contract Compliance Programs (OFCCP) filed its first administrative lawsuit against a federal contractor since President Trump took office. The complaint was filed against Advance2000 Inc., a New York-based information technology services firm, after the company refused to produce reports it agreed to submit to the OFCCP as part of a conciliation agreement.
The U.S. Chamber of Commerce recently released a report entitled Office of Federal Contract Compliance Programs: Right Mission, Wrong Tactics—Recommendations for Reform critiquing some of the recent enforcement practices of the Department of Labor’s (DOL’s) Office of Federal Contract Compliance Programs (OFCCP).
According to a news report by the Miami Herald, Florida attorney Craig Leen will serve as a senior adviser to Labor Secretary Alexander Acosta. In an interview with the Miami Herald, Leen described “his political post, approved by the White House, as overseeing compliance rules for government contractors.” This role sounds very similar to the role of the Director at the Office of Federal Contract Compliance (OFCCP) which has been vacant since Patricia Shiu left in November 2016. However, we have been unable to confirm with the Department of Labor if in fact Leen will be the next OFCCP Director. Tom Dowd, a career government employee, has served as the Interim Director role since Shiu’s departure.
On August 31, 2017, a federal judge in Texas annulled the Obama administration’s controversial rule on expanding overtime practices to millions of “white collar” workers. The rule would have raised the minimum threshold requirements to qualify for the Fair Labor Standards Act’s “white collar” exemption to just over $47,000 per year and increase the overtime threshold for highly compensated workers from $100,000 per year to about $134,000 per year. Judge Amos Mazzant granted the summary judgment to the Plano Chamber of Commerce and other business groups that challenged the 2016 ruling. When the regulation was first announced, Texas, Nevada, and 19 other states also filed a suit challenging the rule. Their case was consolidated into the lawsuit filed by the business groups.
On Wednesday, August 23, 2017, the Office of Federal Contract Compliance Programs (OFCCP) filed an appeal with the Administrative Review Board (ARB), officially challenging a recent decision denying the agency access to some of the documents it sought as part of its highly-publicized review of the compensation practices at Google Inc.’s headquarters location.