Posts Tagged ‘United States Department of Labor’

OFCCP Seeks Public Comments on Strengthening its Affirmative Action Regulations Relative to Individuals with Disabilities

Monday, August 2nd, 2010

In a press release issued on its website, the United States Department of Labor’s Office of Federal Contract Compliance Programs has issued a notice requesting the public’s input on ways it can strengthen its regulations that require federal contractors to take affirmative action in employing and advancing individuals with disabilities. The regulations implemented Section 503 of the Rehabilitation Act, which is the law prohibiting discrimination and requiring employers with federal contracts or subcontracts of greater than $10,000 to take affirmative steps in hiring, retaining and promoting qualified individuals with disabilities.

The OFCCP has specifically asked for the public’s opinion on the following questions:

  • How can the affirmative action requirements of Section 503 be strengthened to measurably increase employment opportunities of covered contractors for individuals with disabilities? If available, include examples or information illustrating the effectiveness of the suggested new requirements.
  • What measures have contractors and subcontractors taken to fulfill the current affirmative action requirements of Section 503? How much did these measures cost?
  • What barriers currently impede Federal contractors from hiring people with disabilities?
  • Are there changes that could be made to the existing language on permissible qualifications standards that would better ensure equal employment opportunities for individuals with disabilities?
  • If OFCCP were to require federal contractors to conduct utilization analyses and to establish hiring goals for individuals with disabilities, comparable to the analyses and establishment of goals required under the regulations implementing Executive Order 11246, what data should be examined in order to identify the appropriate availability pool of such individuals for employment?
  • Would the establishment of placement goals for individuals with disabilities measurably increase their employment opportunities in the federal contractor sector? Explain why or why not.
  • What experience have federal contractors had with respect to disability employment goals programs voluntarily undertaken or required by state, local or foreign governments?
  • What specific employment practices have been verifiably effective in recruiting, hiring, advancing, and retaining individuals with disabilities?
  • To what extent does workplace flexibility, including flexibility in work schedules, as well as job-protected leave, impact recruitment and retention of individuals with disabilities?
  • Has training of employees and/or managers been effective in increasing advancement and/or retention of individuals with disabilities? If so, how?
  • Federal contractors are required to invite all job applicants to voluntarily and confidentially identify their race and gender pre-offer. The collection of this information allows contractors to monitor the impact of their employment practices by race and gender and to assess progress in meeting their affirmative action goals. Existing Section 503 regulations require contractors to invite applicants to voluntarily and confidentially self-identify as a person with a disability after making an offer of employment, but before the applicant begins employment. Would amending the Section 503 regulations to require contractors to invite all applicants to voluntarily and confidentially self-identify if they have a disability prior to an offer of employment enhance a federal contractor’s ability to more effectively monitor their hiring practices with respect to applicants with disabilities? Note that a Section 503 regulation requiring contractors to invite voluntary and confidential self-identification as an applicant with a disability pre-offer for affirmative action purposes would not violate the Americans with Disabilities Act.
  • How can linkage agreements between federal contractors and organizations that focus on the employment of individuals with disabilities be strengthened to increase effectiveness? Do linkage agreements have better outcomes when higher level company officials are responsible for their implementation/execution? Include examples of cooperative agreements between employers and disability or community recruitment organizations that have been helpful in hiring persons with disabilities.
  • What impact would result from requiring that Federal contractors and subcontractors make information and communication technology used by job applicants in the job application process, and by employees in connection with their employment fully accessible and usable by individuals with disabilities? What are the specific costs and/or benefits that might result from this requirement?
  • What other specific changes to the Section 503 regulations might improve the recruitment, hiring, retention, and advancement of individuals with disabilities by federal contractors?
  • Regulatory Flexibility Act–Consistent with the Regulatory Flexibility Act, the Department must consider the impacts of any proposed rule on small entities, including small businesses, small nonprofit organizations and small governmental jurisdictions with populations under 50,000. The Department of Labor encourages small entities to provide data on how additional requirements under Section 503 may impact them.
  • OFCCP seeks public comment on the types of small entities and any estimates of the numbers of small entities that may be impacted by this rule.
  • OFCCP seeks public comment on the potential costs of additional 503 requirements on small entities.
  • OFCCP seeks public comment on any possible alternatives to the proposed measures that would allow the agency to achieve their regulatory objectives while minimizing any adverse impact to small businesses.

The deadline for receiving comments is September 21, 2010. To read the OFCCP’s notice, click here.

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Remember that the DOL is Cracking Down on Unpaid Summer Internships

Tuesday, June 8th, 2010

With the summer months approaching and the economy still in a slump, many area businesses are likely to be flooded with the résumés of high-school and college students seeking internships. Before taking action on any of these résumés, it is important for businesses first to be aware that many internships must be paid.

The idea of a paid internship may seem like an oxymoron since the word ‘intern’ usually connotes an unpaid arrangement. Indeed, internships are generally thought of as unpaid, mutually beneficial arrangements: the intern gains valuable work experience that will undoubtedly be included on her résumé, and the business gains free labor for the summer, labor that will undoubtedly answer the telephone, file, copy, and perform other miscellaneous tasks. But for the purposes of wage and hour laws, our traditional notion of what an internship should be is irrelevant.

The Fair Labor Standards Act (FLSA), which is the federal law requiring the payment of minimum wages and overtime compensation, generally prohibits unpaid internships, especially in the private, for-profit sector. Unpaid internships in the public sector and at nonprofit, charitable organizations, where the interns volunteer without the expectation of compensation, are usually permissible. Yet, at for-profit companies, the FLSA by and large requires that interns be paid at least the minimum wage as well as any overtime compensation for hours worked above 40 in a given week. In other words, under the FLSA, interns will oftentimes be treated as employees and must be compensated for all hours worked.

Just in time for the summer months, the U.S. Department of Labor’s Wage and Hour Division, which is the federal agency with enforcement authority over wage-and-hour laws, appears to be cracking down on unpaid internships. In fact, in April, the DOL published a fact sheet on its Web site, titled “Internship Programs Under the Fair Labor Standards Act,” which makes it clear that the DOL will view most internships as an employment arrangement requiring compensation.

Although the fact sheet reiterates the FLSA’s implied mandate that internships be paid, it sets forth a six-part test for determining the circumstances under which an internship can be unpaid. As the fact sheet is quick to point out, these circumstances are very narrow, and the determination of whether an internship meets this narrow exception depends upon all of the facts and circumstances of each internship program, including the following six factors:

  • The internship, even though it includes actual operation of the facilities of the employer, is similar to training, which would be given in an educational environment;
  • The internship experience is for the benefit of the intern;
  • The intern does not displace regular employees, but works under close supervision of existing staff;
  • The employer that provides the training derives no immediate advantage from the activities of the intern, and on occasion its operations may actually be impeded;
  • The intern is not necessarily entitled to a job at the conclusion of the internship; and
  • The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If each of the above factors is met, then an employment arrangement does not exist under the FLSA, and, as a result, the FLSA’s minimum wage and overtime provisions do not apply. Under the DOL fact sheet, an intern will be considered an employee if she is engaged in any business operations or is performing any productive work for the business, such as filing, copying, answering telephones, or other clerical work or assisting customers. Additionally, if an intern is placed with a business for a trial period with the expectation that she will be hired on a permanent basis at some later date, that intern will also be considered an employee, entitled to minimum-wage and overtime compensation.

The fact that an intern may be receiving some benefit in the form of a new skill, work experience, or better work habits in the course of their internship is irrelevant and will not exclude them from the FLSA’s minimum-wage and overtime requirements. In fact, meeting each of the six exclusion factors will be very difficult, and the DOL, given its ramped-up enforcement efforts, is likely to be highly skeptical of businesses that do not pay their interns, scrutinizing them very closely.

Educational internship programs are generally exempt from the FLSA’s minimum-wage and overtime requirements. Indeed, the more the internship is structured around an educational program, the more likely it will be considered an unpaid arrangement. Usually, this occurs when a college or university oversees the internship program and provides credit for participation in the internship. Even then, the intern cannot be performing any services that would benefit the business. If the intern does, the internship arrangement will come within the FLSA’s protections.

Before taking on any interns this summer, businesses should carefully examine the nature of the work the intern will be doing. Bear in mind that anytasks that benefit the business, such as filing or copying, entitle an intern to compensation of at least minimum wage and overtime pay, when applicable. Businesses that erroneously label an individual an intern violate the minimum wage and overtime laws, and can face severe penalties.

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Minimum Wage Up in Connecticut and Down in Colorado

Tuesday, January 5th, 2010

As of January 1, 2010, Connecticut’s minimum wage increased to $8.25 per hour while Colorado’s minimum wage fell to $7.25 per hour. In fact, Colorado employees will now receive 3 cents less per hour as of the new year. Massachusetts’ minimum wage has, since January 1, 2008, remained at $8.00 per hour.

The United States Department of Labor maintains a state by state minimum wage chart, which can be accessed by clicking here.

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