The OFCCP Digest Local JobNetwork The OFCCP Digest Cara Crotty, Esq. Bill Osterndorf Shafeeqa Watkins Giarratani, Esq. and Meredith Mills, Esq. Marilynn Schuyler
Will Your Organization Be Required to Provide Paid Sick Leave?
by Cara Crotty, Esq.

On February 25, 2016, the U.S. Department of Labor published its Proposed Rule to implement Executive Order 13706, Establishing Paid Sick Leave for Federal Contractors. President Obama issued the Executive Order on Labor Day 2015, and the Department of Labor is required to issue final regulations by September 30, 2016...more

Cara_Crotty, Esq. Cara Crotty, Esq. is a partner at Constangy, Brooks, Smith & Prophete, LLP who has defended employers in cases involving every aspect of the employment relationship, including claims such as sexual, racial, age, and disability harassment...more

EEOC Releases Proposal to Collect Compensation Data as Part of the Annual EEO-1 Report
by Bill Osterndorf

On February 1, 2016, the Equal Employment Opportunity Commission (EEOC) published a notice of its intent to modify the annual EEO-1 report to include compensation data. The proposed collection of compensation data by EEOC has some similarities to a proposal...more

Bill Osterndorf William A. Osterndorf is President and founder of HR Analytical Services and has been working with affirmative action/equal opportunity issues for the last 25 years in the public and private sectors. Bill specializes in...more

Executive Order 13672: What It Means For Employers and What Your Organization Should Do to Prepare
by Shafeeqa Watkins Giarratani, Esq. and Meredith Mills, Esq.

On July 21, 2014, President Barack Obama signed Executive Order 13672 adding sexual orientation and gender identity to the list of protected traits and prohibiting discrimination based on the same. Pursuant to the Order, on December 3, 2014, the Department of Labor announced the final rule that prohibits federal contracts from discriminating on the basis of sexual orientation or gender identity.

Interestingly, the final rule was issued without a proposed rule and comment period. In a press release dated December 3, 2014, Patricia A. Shiu, Director of the OFCCP, stated “[t]his rule will extend protections to millions of workers who are employed by or seek...more

Shafeeqa Watkins Giarratani, Esq. Shafeeqa Giarratani, a partner with Norton Rose Fulbright, practices in the employment and labor, appellate and litigation groups. She represents employers in federal...more

Meredith Mills, Esq. Meredith Mills, an Austin native, is a member of the employment and labor group of Norton Rose Fulbright's Austin office. Her practice covers employment litigation...more

Diversity Management vs. Affirmative Action
by Marilynn Schuyler, Esq.

Organizations typically distinguish “Diversity Management” from “Affirmative Action.” The perception is that an affirmative action program consists of “compliance in order to conduct business with the federal government,” whereas diversity management “aims to provide tangible benefits.” I think the Office of Federal Contract Compliance Programs (OFCCP) would be surprised to learn that federal contractors are developing separate diversity plans to achieve inclusivity...more

Mariylnn Schuyler, Esq. Marilynn L. Schuyler has been developing Affirmative Action Plans for public, private, and academic institutions since 1996, and has been working in the field of Equal Employment Opportunity since 1988. She provides clients with...more

Ask the Experts is an online forum where federal contractors and subcontractors who are clients of the Local JobNetwork™ (LJN) are invited to submit questions to industry experts related to OFCCP compliance, affirmative action planning, and equal employment opportunity. Questions and answers will occasionally be featured in The OFCCP Digest for the benefit of all readers.

Question: Posting Temporary Hire Positions to Employment Service Delivery System (ESDS)

We have a question in regard to temporary hires through an agency. What is the requirement around posting to an ESDS for these roles? We may have someone come in just for an afternoon or for 5 days, depending on the assignment. These are not temp-to-hire but purely temp positions and they are on an agency's payroll, not our own. Are we required to post these positions to the ESDS?

Answered by Bill Osterndorf from HR Analytical Services:

Here's a good consultant answer: you're probably not required to list these positions with the ESDS.


Traditionally, OFCCP would consider temps on someone else's payroll to be the employees of the temp service. It would be incumbent on the temp service to list positions with the ESDS rather than your obligation to list the temp positions with the ESDS.

This happens to be one of those issues where the waters are becoming murky, though. More and more, we're seeing the federal regulatory agencies think of situations where agency temps are used as co-employment situations. If OFCCP were to take this position, then your organization might be under some obligation to list with the ESDS if the temp position is for three days or more AND your organization has a federal contract or subcontract of $150,000 or more.

For the moment, the right answer might be to work with your temporary agency to ensure that the agency is listing all of its openings with the relevant ESDS office. That way, the "right" employer (i.e. the employer who technically "owns" the temp) is doing the ESDS listing.

I would strongly encourage you to keep watch as to what is occurring in the regulatory environment, though, since we know issues concerning the contingent workforce are of very great interest to the current administration.

Establishing Paid Sick Leave for Federal Contractors – Notice of
Proposed Rulemaking

The Department of Labor has issued a proposed rule that shows how they plan to implement President Obama’s Executive Order 13706 which establishes paid sick leave for federal contractors. Employees of federal contractors can earn up to seven days of paid sick leave each year including paid leave for family care. The Notice of Proposed Rulemaking (NPRM) was published on February 25, 2016, in the Federal Register. Interested parties can submit written comments by March 28, 2016.

Read more DOL Highlights throughout the month for timely updates.

Hear from agencies such as the OFCCP, EEOC, OCR, and others at the annual AAAED national conference in Washington, D.C. This conference is designed to meet the needs of any person classified as an EEO/AA or diversity professional. Develop proactive partnerships to make your workplaces more diverse, inclusive, and compliant. Learn more here.

Stay up to date on the implementation of regulations from the Office of Federal Contract Compliance Programs (OFCCP) at the annual ILG National Conference in Charlotte, NC. This event brings Affirmative Action practitioners, the legal industry, government agencies, human resource professionals, and industry experts together to learn about the regulatory agenda of OFCCP and EEOC, and to learn about the steps needed to meet the latest compliance requirements. Learn more here.

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The opinions expressed in this newsletter are the opinions of the individual author(s) and do not necessarily reflect the opinions of the Local JobNetwork™. The information appearing in this newsletter is meant to provide the reader with a general understanding of topics relating to OFCCP compliance requirements and is not legal advice. If you are seeking legal advice to address OFCCP compliance issues or requirements, you should consult an attorney. The Local JobNetwork™ expressly disclaims all liability with respect to actions taken or not taken based on any or all of the contents of this newsletter.