On April 18, 2012, the House Subcommittee on Health, Employment, Labor, and Pensions held a hearing with the august title of "Reviewing the Impact of the Office of Federal Contract Compliance Programs' Regulatory and Enforcement Actions."
It appears that the employment of disabled veterans has become the top priority of both the Department of Labor and the EEOC. It seems there is a competition among the federal agencies to show which is more supportive of disabled vets. DOL, through the offices of the OFCCP, has issued controversial Proposed Regulations for significantly enhanced affirmative action entitlements for individuals with disabilities. Now the EEOC has issued a new Guidance: Veterans and the Americans with Disabilities Act (ADA): A Guide for Employers.
In one of Judge Richard Posner’s more celebrated opinions, he wrote that giving preferential hiring to individuals with disabilities would be “affirmative action with a vengeance.” No matter what the Bible says, in this case, vengeance belongs to the Office of Federal Contract Compliance Programs (OFCCP).
Most of us grew up believing that our personal religious practices were not the government’s business, one way or the other: no help but no impediments, either. When Title VII was passed and “religion” became a “protected” attribute, the courts were, inevitably, called in to clarify what kind of accommodations – if any – an employer was required to make for religious practices. And the Supreme Court made it clear that governmental neutrality regarding religion carried over into private employment.
The recent announcement by the NLRB (or “the Board”) that employers must post a list of the employees’ rights to organize into labor unions is the fourth chapter in what appears to be an endless cycle. (For a copy of the new Rule, a brief explanation, and Member Hayes’ dissent, go to www.fortneyscott.com or for a highlight of the mechanics, visit the recent blog entry.) Republican presidents will read the Supreme Court’s Beck decision as requiring that employees are informed of their rights not to join a union and require that posting. That is what Presidents Bush I and II did. Democratic presidents will order that pulled off the walls and replace it with a posting emphasizing the right to organize. So be it. The number of private sector workers in unions continues to fall. The percentage of successful union elections continues to rise. Come to such conclusion as you wish on that subject. Yet, nothing in this political kid’s game of tit-for-tat addresses the underlying question of the value of postings or of the NLRB’s irreconcilably divided view of workers.
In May 2010, the OFCCP abruptly announced that it was no longer accepting requests for or renewals of Functional Affirmative Action Plans (FAAPs). No reason was given and none has been forthcoming. The absence of any explanation led to considerable speculation as to the reason for the suspension of what most federal contractors thought was a useful program: based on the employer’s actual distribution of its employees; reducing the number on facility-based plans; with no diminution of affirmative action. Some practitioners suggested that the new leaders of OFCCP were suspicious of the FAAP program for no other reason than it was established during the Bush II administration. The speculation may stop now that the agency has issued a new Directive continuing the FAAP program, with revised procedures.
In a much anticipated opinion, the Supreme Court held, 5-4, that the 1.5 million member class of women employees could not be certified for trial because it was not bound together by a common issue of law. (Read the opinion in PDF.) The Court also unanimously ruled that the claims for monetary damages disqualified the class from being certified as the plaintiffs had requested.
The EEOC just published its Notice of Proposed Rulemaking (NPRM) with the august title of “Recordkeeping and Reporting Requirements under Title VII, the ADA, and GINA.” The NPRM, in fact, deals entirely with GINA, the Genetic Information Non-Discrimination Act.
Now that there is an amended ADA and final Regulations have been published, we are waiting for new cases to be litigated so that we can learn just how this new disability regimen will work. We know that many cases that failed under the old law will likely proceed and even succeed now, but one question that floated in the background was the degree to which the EEOC would pursue the limits of the law. A recent case gives us a hint that we are in for quite a ride.
It’s one thing for a government lawyer to get a letter from a company’s General Counsel complaining about an action you’ve taken, it’s quite another when the letter writer is J. Michael Luttig, formerly Judge Michael Luttig of the 4th Circuit, once rumored to be short-listed for the Supreme Court. But that is exactly what NLRB Acting General Counsel Lafe Solomon got from the now-Boeing lead lawyer.
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