Agency Spotlight: DOL OFCCP Replaces Compensation Guidelines

by Lynn White

On February 28, 2013, the Department of Labor (DOL), Office of Federal Contract Compliance Programs (OFCCP) published a notice rescinding two guidance documents related to compensation discrimination. OFCCP enforces nondiscrimination and affirmative action requirements for federal contractors. The agency rescinded the Interpreting Nondiscrimination Requirements of Executive Order 11246 with respect to Systemic Compensation Discrimination (Standards) which outlined “analytical procedures” for issuing a Notice of Violation based on compensation discrimination. OFCCP also rescinded the Voluntary Guidelines for Self-Evaluation of Compensation Practices for Compliance with Executive Order 11246 (Voluntary Guidelines) which created a method for contractors to evaluate their own pay practices. The agency initially proposed the rescissions on January 3, 2011.

Removing Barriers to Enforcement

OFCCP Director Patricia A. Shiu stated that the Standards and Voluntary Guidelines created arbitrary barriers to “finding and combating illegal pay discrimination.” In particular, the Standards applied to pay differences among workers in specific job categories, leaving little room for analysis of other factors like discrimination in job assignments and unequal access to promotional opportunities. OFCCP further asserted that the Voluntary Guidelines gave employers the flexibility to analyze pay data based on their interpretation of how to apply the guidelines. If the interpretation was reasonable, the Voluntary Guidelines required finding contractors in compliance even if a different analysis suggested pay disparities. 

Issuing Clearer Guidance

OFCCP issued Policy Directive 307 (Directive 307) to replace the Standards, Voluntary Guidelines, and any previous policy guidance on investigating pay discrimination. Directive 307 provides a detailed description of the process OFCCP compliance officers should follow when reviewing compensation data during a federal contractor audit. This includes conducting a preliminary analysis of summary data, analyzing individual employee level data, and developing pay analysis groups, among other things. Director Shiu stated that the directive  provides "clear guidance for contractors to facilitate their success when it comes to providing equal opportunity to all of their workers."

For more information about the rescission and Directive 307, visit OFCCP’s website.

OPM Set to Open Administrative Law Judge Examination Soon

The U.S. Office of Personnel Management (OPM) recently announced it will open the Administrative Law Judge Examination soon. Unlike in previous years, there will be no limit on applications. For more information on becoming an Administrative Law Judge, visit OPM’s website. 

We'll be sure to update you once the job listing opens!

Agency Spotlight: USDA Proposes Changes to SNAP

by Lynn White

On February 22, 2013, the U.S. Department of Agriculture (USDA) published a notice of proposed rulemaking (NPRM) proposing changes to the Supplemental Nutrition Assistance Program (SNAP).  The proposed rule would authorize USDA to quickly suspend payments to businesses that "flagrantly" misuse the program.  Under existing regulations, businesses are able to remain active retailers in SNAP even if they are being investigated for trafficking benefits.  The proposed changes would allow USDA to suspend payments to those retailers and prevent further abuse. USDA is especially interested in comments from state agencies regarding the costs and timelines to implement the changes and any alternative process for suspending funds to retailers.  The proposed rule would also clarify the timeframe for responding to allegations of trafficking and strengthen other program requirements. The proposals are part of the Administration's Campaign to Cut Waste in government programs. 

The USDA is accepting comments on this proposal until April 23, 2013.  Comments can be made through www.regulations.gov, Docket Number FNS-2012-0029 or via mail to Shanta Swezy, Chief, Retailer Management and Issuance Branch, USDA, FNS, SNAP, Benefit Redemption Division, 3101 Park Center Drive, Room 426, Alexandria, Virginia, 22302. 

Agencies Seek Applications for Food and Drug Safety Workgroup

by Lynn White

The Food and Drug Administration, Office of National Coordinator for Health IT, and Federal Communications Commission (FCC) are seeking applications for the Food and Drug Administration Safety Innovation Act Workgroup (FDASIA). The FDASIA will "inform the development of a report on an appropriate, risk-based regulatory framework pertaining to health information technology including mobile medical applications that promotes innovation, protects patient safety, and avoids regulatory duplication."  Applications are due March 8, 2013.

This would be a great opportunity for Section members with relevant expertise to help guide the development of a regulatory framework in an important field.  Visit the FCC's website here for more information. 

 

9th Annual Administrative Law and Regulatory Practice Institute

Registration is now open for the 2013 Administrative Law and Regulatory Practice Institute, April 3-4, 2013, in Washington, DC at the Capitol Hilton.  The institute will cover hot topics and emerging issues in administrative law.  Stay tuned for the full conference agenda!

EEOC Seeking Input on Quality Control Plan

by Lynn White

The U.S. Equal Employment Opportunity Commission (EEOC) invites public input on its efforts to develop a Quality Control Plan (QCP). The EEOC Strategic Enforcement Plan for Fiscal Years 2012-2016 requires the agency to develop a QCP for public and private sector investigations and conciliations and federal sector hearings and appeals. The agency is specifically seeking recommendations on quality indicators for investigations and improving the overall quality of intakes, investigations and concilliations.

Written comments must be submitted by 5:00 p.m. EST, Friday, March 1, 2013 to strategic.plan@eeoc.gov. Visit the EEOC’s website for more information.

Agency Spotlight: DOL Issues FMLA Final Rule

by Lynn White

On February 6, 2013, the Department of Labor (DOL) published a final rule in the Federal Register (78 FR 8833-8947) revising Family Medical Leave Act (FMLA) benefit requirements for family members of servicemembers. The FMLA provides qualifying family members of injured or ill servicemembers (military caregiver) or activated National Guard or Reserve members (qualifying exigency) leave under certain circumstances. The final rule extends military caregiver leave to family members of injured or ill veterans. The final rule also extends qualifying exigency leave to family members of all servicemembers and adds a foreign deployment requirement. These provisions are designed to increase family involvement in veteran’s recovery and reduce employment challenges for military families. The final rule also sets out FMLA leave eligibility requirements for airline flight crewmembers and flight attendants.

The final rule is effective March 8, 2013. Visit DOL’s website for more information.