D.C. and agency insiders speak to ECN attorneys

December 2013

(December 2013) – On December 6, 2013, attorneys from the Employers Counsel Network (ECN) met in Springfield, Massachusetts, to hear about the latest developments and trends in the employment law arena from D.C. and agency insiders.

David Fortney of Fortney & Scott, LLC, Washington, D.C., addressed the emphasis on enforcement in President Obama’s administration. He called the Department of Labor (DOL) “committed to tougher enforcement of labor laws to reverse a ‘culture of noncompliance’ that has developed over the past ten years” and noted that agency has expanded audit and litigation initiatives.

In the same vein, Fortney noted that the Office of Federal Contract Compliance Programs (OFCCP) has gotten aggressive in saying healthcare organizations are subject to the agency and its obligations. Even when a contract specifically says the party isn’t a government contractor, the OFCCP’s position is that if it is doing business with the government, it is covered by the agency’s regulations. As a result, large corporations are looking to get out of government contracts.

Addressing the OFCCP’s 503 and VEVRAA regulations, which go into effect March 24, 2014, Fortney noted that there is a problem in that the regs require government contractors to ask about disabilities in the applicant stage, which conflicts with a primary rule under the Americans with Disabilities Act—the restriction against asking applicants about disabilities before a job offer is made.

EEOC Mediator Elizabeth Marcus spoke to the group about how to make mediation work for employers as well as offering tips to the attorneys who take part in the mediation process. She noted that mediation can work really well for bigger employers, where employees often feel lost and want to be heard.

Marcus told the group of employer attorneys that when clients get frustrated and don’t want to participate in mediation because they feel they didn’t do anything wrong, they should be reminded that mediation can help get the information out and avoid the hassle of an investigation. She also noted that if an employer doesn’t want to spend any money because it has done nothing wrong, there are many nonmonetary settlement options.

Attendee Sophie E. Zdatny, an attorney with Dinse, Knapp & McAndrew, P.C. in Burlington, Vermont, and an editor of Vermont Employment Law Letter, shared what she learned from Marcus’ presentation in the article “Keep your BMW keys in your pocket, and other mediation tips for employers.”

National Labor Relations Board (NLRB) Region One Director Jonathan B. Kreisberg shared his enforcement insights. Kreisberg spoke about the back stories behind several key employment issues and cases. Additionally, he recapped NLRB developments of 2013 and gave his impressions about the Board’s new priorities, including its stance that much social media activity should be considered concerted activity protected by the National Labor Relations Act.