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Archive for September, 2018

Federal Transit Authority Issues New Transit Noise and Vibration Impact Assessment Manual (Sept. 2018)

Friday, September 28th, 2018

FTA has released a newly updated version of The Transit Noise and Vibration Impact Assessment Manual, which outlines procedures for predicting and assessing the noise and vibration impacts of proposed transit projects as part of FTA’s environmental review process. This third edition of the guidance manual, originally issued in 1995, includes clarifications to existing policy and updates to outdated references, where applicable, but does not change the assessment procedures. The latest edition will only be available online and includes internal links so readers can more swiftly move between sections of the manual.

FTA is working with the National Transit Institute (NTI) to schedule the Transit Noise and Vibration Impact Assessment course. Please check NTI’s website for course delivery updates.

U.S. Department of Transportation and Federal Transit Authority: New Disadvantaged Business Enterprise Guidance Documents (Sept. 2018)

Thursday, September 27th, 2018

The U.S. Department of Transportation’s Office of General Counsel has approved new guidance documents related to the Disadvantaged Business Enterprise (DBE) program. Access these documents on DOT’s DBE Guidance web page:

Training for DBE Certification Application Review Staff provides information on how to ensure staff reviewing DBE certification applications are properly trained.
Recipient Responsibilities for Oversight and Monitoring of DBE Participation contains questions and answers on recipients’ responsibilities for monitoring work performed by DBEs.
Calculating the Personal Net Worth of Individuals That Own Multiple Businesses clarifies that only an individual’s ownership interest in the subsidiary firm applying for DBE certification is excluded from the PNW calculation.
Procedures for Submitting Good Faith Efforts Information on Design-Bid-Build Contracts clarifies how recipients must ensure that all contract bidders/offers submit DBE subcontractor information on design-bid-build contracts.

OFCCP and NILG Collaborate to Help Contractors Comply with EEO Requirements (Sept. 2018)

Wednesday, September 26th, 2018

OFCCP and federal contractors have a shared goal of equal employment opportunity in federal contracting. At OFCCP we have learned that, before we can achieve broader compliance success, first we need to up the level of trust, communication, and education we provide to contractors.

That’s why today, OFCCP is delighted to share the news that it has entered into a Memorandum of Understanding with the National Industry Liaison Group (NILG). This milestone agreement promises greater collaboration between OFCCP and contractors, through NILG, a non-profit employer association that facilitates communication and discussion concerning equal employment opportunity and affirmative action obligations and practices with approximately 60 local ILG chapters.

By entering into an MOU both parties have agreed upon the following specific and mutual goals.

Contractor Education and Training
Helping Contractors Comply with OFCCP’s Regulations
Minimizing the Cost of Compliance by Contractors

This partnership and MOU is a vehicle for exchanging information, obtaining feedback, and receiving advice from contractors. We look forward to hearing from you.

Want to review the full details of the MOU? Click the button below for further information.

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Departments of Justice and Labor Formalize New Partnership to Protect U.S. Workers From Discrimination and Combat Visa Abuse (2018)

Sunday, September 23rd, 2018

Today, the Department of Justice’s Civil Rights Division and the Department of Labor (DOL) expanded their collaboration to better protect U.S. workers from discrimination by employers that prefer to hire temporary visa workers over qualified U.S. workers. This new partnership, memorialized in a Memorandum of Understanding (MOU), establishes protocols for the agencies to share information, refer matters between them, and train each other’s employees, with the goal of better protecting U.S. workers. This partnership will enhance the Civil Rights Division’s efforts to stop companies from discriminating against U.S. workers and assist the Department of Labor’s Employment and Training Administration in identifying noncompliance with its foreign labor certification process.

In 2017, the Civil Rights Division launched the Protecting U.S. Workers Initiative, which is aimed at targeting, investigating, and taking enforcement measures against companies that discriminate against U.S. workers in favor of foreign visa workers. Under this Initiative, the Civil Rights Division has opened dozens of investigations; filed one lawsuit; and reached settlement agreements with three employers. Since the Initiative’s inception, employers have agreed to pay or distributed over $285,000 in back pay to affected U.S. workers. The Employment and Training Administration has assisted the Division’s efforts under this Initiative and today’s partnership expands and formalizes that relationship.

The Civil Rights Division has also increased its collaboration with other federal agencies, including the Departments of State and Homeland Security, to combat discrimination and abuse by employers improperly using temporary visa workers. Today’s MOU expands on the Division’s existing partnership with DOL. In 2017, the Division entered into a similar ongoing partnership with DOL’s Wage and Hour Division to combat discrimination and violations of other federal worker protection laws by facilitating the agencies’ information sharing.

“Employers should hire workers based on their skills, experience, and authorization to work; not based on discriminatory preferences that violate the law,” said Acting Assistant Attorney General John Gore of the Civil Rights Division. “Our partnership with DOL, formalized today, significantly enhances the Civil Rights Division’s ability to identify employers that favor temporary visa holders over U.S. workers who can do the job.”

“Streamlining the process for information sharing between the Department of Labor and the Department of Justice will help protect U.S. workers from unlawful discrimination,” said Rosemary Lahasky, Deputy Assistant Secretary for DOL’s Employment and Training Administration. “This partnership will help ensure U.S. workers are prioritized to fill jobs.”

The Employment and Training Administration’s Office of Foreign Labor Certification (OFLC) has statutory and regulatory authority to certify employers seeking certain employment-based visas, including H-2A and H-2B visas. These visa programs require employers to first seek and hire available U.S. workers before hiring visa workers.

The Civil Rights Division’s Immigrant and Employee Rights Section (IER) is responsible for enforcing the anti-discrimination provision of the Immigration and Nationality Act. Among other things, the statute prohibits citizenship status and national origin discrimination in hiring, firing, or recruitment or referral for a fee; unfair documentary practices; retaliation; and intimidation. An employer that prefers to hire temporary visa workers over available, qualified U.S. workers may be discriminating in violation of this law.

For more information about protections against employment discrimination under immigration laws, call IER’s worker hotline at 1-800-255-7688 (1-800-237-2515, TTY for hearing impaired); call IER’s employer hotline at 1-800-255-8155 (1-800-237-2515, TTY for hearing impaired); sign up for a free webinar; email IER@usdoj.gov (link sends e-mail); or visit IER’s English and Spanish websites. Applicants or employees who believe they were subjected to retaliation; different documentary requirements based on their citizenship, immigration status or national origin; or discrimination based on their citizenship, immigration status, or national origin in hiring, firing, or recruitment or referral for a fee, can file a charge or contact IER’s worker hotline for assistance.

For more information on OFLC and its activities, please visit https://www.foreignlaborcert.doleta.gov.

Justice Department Announces Fourth Settlement Protecting U.S. Workers From Discrimination (Sept. 2018)

Sunday, September 23rd, 2018

The Justice Department today reached a settlement agreement with Palmetto Beach Hospitality LLC (Palmetto), a company that provides housekeeping services to hotels in the Myrtle Beach, South Carolina area. The agreement resolves the Department’s investigation into whether Palmetto unlawfully denied employment to qualified and available U.S. workers because it preferred to hire temporary foreign workers with H-2B visas. It is the fourth settlement under the Civil Rights Division’s Protecting U.S. Workers Initiative, which is aimed at targeting, investigating, and taking enforcement actions against companies that discriminate against U.S. workers in favor of temporary visa workers.

The Department’s investigation determined that Palmetto failed to consider applications from qualified U.S. workers for its housekeeper positions, even though employers are required to recruit and hire available and qualified U.S. workers before they receive permission to hire temporary foreign workers under the H-2B visa program. After ignoring applications from U.S. workers, Palmetto represented to the U.S. Department of Labor (DOL) that it could not find qualified U.S. workers and obtained authorization to employ temporary visa workers.

“The Department of Justice will fight to ensure that U.S. workers are not denied jobs because an employer has a discriminatory preference for hiring temporary visa workers,” said Acting Assistant Attorney General John Gore of the Civil Rights Division. “I commend Palmetto for its cooperation with the Department’s investigation, and its agreement to engage in domestic recruitment efforts far surpassing the minimal recruiting requirements to participate in the H-2B visa worker program.”

Failing to consider or hire qualified U.S. workers based on their citizenship status violates the anti-discrimination provision of the Immigration and Nationality Act (INA), regardless of whether an employer has complied with other rules governing the use of temporary employment-based visa programs.

Under the settlement, Palmetto must engage in several types of enhanced recruiting and job advertising efforts to attract qualified U.S. workers, far beyond those required by the H-2B visa rules. Palmetto also must set aside $35,000 to pay any wages lost by U.S. workers whose applications it improperly rejected or ignored, pay $42,000 in civil penalties to the United States, and be subject to departmental monitoring.

Under the Protecting U.S. Workers Initiative, the Civil Rights Division has opened dozens of investigations, filed one lawsuit, and reached settlement agreements with four employers. Since the Initiative’s inception, employers have agreed to pay or have distributed over $320,000 in back pay to affected U.S. workers. The Division has also increased its collaboration with other federal agencies, including a new formalized partnership with DOL to combat discrimination and abuse by employers using foreign visa workers.

The Division’s Immigrant and Employee Rights Section (IER) is responsible for enforcing the anti-discrimination provision of the INA. Among other things, the statute prohibits citizenship status and national origin discrimination in hiring, firing, or recruitment or referral for a fee; unfair documentary practices; and retaliation and intimidation.

More information on how employers can avoid unlawful citizenship status discrimination is available here. For more information about protections against employment discrimination under immigration laws, call IER’s worker hotline at 1-800-255-7688 (1-800-237-2515, TTY for hearing impaired); call IER’s employer hotline at 1-800-255-8155 (1-800-237-2515, TTY for hearing impaired); sign up for a free webinar; email IER@usdoj.gov; or visit IER’s English and Spanish websites. Subscribe to GovDelivery to receive updates from IER.

Applicants or employees who believe they were subjected to: discrimination based on their citizenship, immigration status, or national origin in hiring, firing, or recruitment or referral for a fee; discrimination in the employment eligibility verification process (Form I-9 and E-Verify) based on their citizenship, immigration status or national origin; or retaliation can file a charge or contact IER’s worker hotline for assistance.

OFCCP: Transparency in Action | Shining a Light on Compliance Procedures (Sept. 2018)

Thursday, September 20th, 2018

At OFCCP, we succeed when contractors succeed. Today, we are taking another step toward joint success with the release of two new policy directives, shining a brighter light on our compliance activities and establishing a program to hear concerns that contractors may be reluctant to share.

The Transparency Directive provides specific procedures that will help contractors comply with their obligations, know what to expect during a compliance evaluation, and protect workers from discrimination through the consistent enforcement of OFCCP legal authorities.

The Ombud Directive launches a program to create an impartial and independent Ombud Service to facilitate the fair and equitable resolution of specific types of concerns raised by OFCCP external stakeholders. Though there are not ramifications for contacting OFCCP, we want to be sure contractors always have a line of communication they feel they can trust to ask questions or raise concerns.

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Justice Department Announces Fourth Settlement Protecting U.S. Workers From Discrimination (Sept. 2018)

Thursday, September 20th, 2018

The Justice Department today reached a settlement agreement with Palmetto Beach Hospitality LLC (Palmetto), a company that provides housekeeping services to hotels in the Myrtle Beach, South Carolina area. The agreement resolves the Department’s investigation into whether Palmetto unlawfully denied employment to qualified and available U.S. workers because it preferred to hire temporary foreign workers with H-2B visas. It is the fourth settlement under the Civil Rights Division’s Protecting U.S. Workers Initiative, which is aimed at targeting, investigating, and taking enforcement actions against companies that discriminate against U.S. workers in favor of temporary visa workers.

The Department’s investigation determined that Palmetto failed to consider applications from qualified U.S. workers for its housekeeper positions, even though employers are required to recruit and hire available and qualified U.S. workers before they receive permission to hire temporary foreign workers under the H-2B visa program. After ignoring applications from U.S. workers, Palmetto represented to the U.S. Department of Labor (DOL) that it could not find qualified U.S. workers and obtained authorization to employ temporary visa workers.

“The Department of Justice will fight to ensure that U.S. workers are not denied jobs because an employer has a discriminatory preference for hiring temporary visa workers,” said Acting Assistant Attorney General John Gore of the Civil Rights Division. “I commend Palmetto for its cooperation with the Department’s investigation, and its agreement to engage in domestic recruitment efforts far surpassing the minimal recruiting requirements to participate in the H-2B visa worker program.”

Failing to consider or hire qualified U.S. workers based on their citizenship status violates the anti-discrimination provision of the Immigration and Nationality Act (INA), regardless of whether an employer has complied with other rules governing the use of temporary employment-based visa programs.

Under the settlement, Palmetto must engage in several types of enhanced recruiting and job advertising efforts to attract qualified U.S. workers, far beyond those required by the H-2B visa rules. Palmetto also must set aside $35,000 to pay any wages lost by U.S. workers whose applications it improperly rejected or ignored, pay $42,000 in civil penalties to the United States, and be subject to departmental monitoring.

Under the Protecting U.S. Workers Initiative, the Civil Rights Division has opened dozens of investigations, filed one lawsuit, and reached settlement agreements with four employers. Since the Initiative’s inception, employers have agreed to pay or have distributed over $320,000 in back pay to affected U.S. workers. The Division has also increased its collaboration with other federal agencies, including a new formalized partnership with DOL to combat discrimination and abuse by employers using foreign visa workers.

The Division’s Immigrant and Employee Rights Section (IER) is responsible for enforcing the anti-discrimination provision of the INA. Among other things, the statute prohibits citizenship status and national origin discrimination in hiring, firing, or recruitment or referral for a fee; unfair documentary practices; and retaliation and intimidation.

More information on how employers can avoid unlawful citizenship status discrimination is available here. For more information about protections against employment discrimination under immigration laws, call IER’s worker hotline at 1-800-255-7688 (1-800-237-2515, TTY for hearing impaired); call IER’s employer hotline at 1-800-255-8155 (1-800-237-2515, TTY for hearing impaired); sign up for a free webinar; email IER@usdoj.gov; or visit IER’s English and Spanish websites. Subscribe to GovDelivery to receive updates from IER.

Applicants or employees who believe they were subjected to: discrimination based on their citizenship, immigration status, or national origin in hiring, firing, or recruitment or referral for a fee; discrimination in the employment eligibility verification process (Form I-9 and E-Verify) based on their citizenship, immigration status or national origin; or retaliation can file a charge or contact IER’s worker hotline for assistance.

Attachment:

Download Palmetto Settlement Agreement

“Auxiliary Aids and Services Available on Request to Persons With Disabilities”

Saturday, September 15th, 2018

If you operate or administer federally funded programs and activities, or if you are a state or local government agency, federal civil rights laws require that you include the foregoing notice on all publications, broadcasts, and other communications. These federal laws are the Rehabilitation Act of 1973, the Americans With Disabilities Act of 1990, and the Americans With Disabilities Act Amendments Act of 2008. The idea here is that persons with sensory, manual, or speaking disabilities are entitled to nondiscrimination and an equal opportunity to participate in, and enjoy the benefits of, programs or activities funded by the United States government.

What are some examples of written communications that must include this notice?

The “auxiliary aids and services” notice must be included on a variety of written materials, including:

√ outreach materials
√ recruitment materials
√ orientation packets
√ brochures
√ written advertisements
√ application, registration, and enrollment forms
√ participant and employee manuals and handbooks

Take a look at the written and electronic materials that you distribute to staff, clients, and the public. Make sure these communications contain the “auxiliary aids and services” notice. An easy and inexpensive fix for written communications that do not currently provide the notice is to create computer-generated labels and affix these labels to the communications.

What does “auxiliary aids and services” involve?

Auxiliary aids and services encompass a wide variety of tools that you may use to assist persons with disabilities, including:

√ qualified readers
√ notetakers
√ taped texts
√ audio recordings
√ brailled materials
√ large print materials
√ equipment, devices, and software (such as assistive hearing devices, speech recognition software, and so on)
√ TDD/TTY or telephone relay service. Keep in mind here that any communication containing your telephone number must also include the TDD/TTY number or the number of the relay service you use. You must also make sure these numbers are operational and staff is trained regarding their use.
√ Qualified sign language interpreters

It is important to remember that any “auxiliary aid or service” must be provided at no charge to the individual with a disability.

What are your obligations to communicate to individuals with disabilities?

You have the obligation to “effectively” communicate with persons who have mobility, hearing, and visual impairments. “Effective” communication means it gets the job done. Often, this may be accomplished through use of auxiliary aids and services. And, keep in mind that:

√ You must provide persons with disabilities information as to the existence and location of accessible services, activities, and facilities; and

√ You must post the international symbol for accessibility at each primary entrance to an accessible facility. For inaccessible facilities, you must provide signage at the primary entrances, which directs folks to a location where they may obtain information about accessible facilities. See 41 C.F.R. § 101-19.6.

To whom do you have these obligations?

You are obliged to offer “auxiliary aids and services” to a variety of categories of persons with disabilities, including:

√ beneficiaries
√ registrants
√ applicants
√ eligible applicants and eligible registrants
√ participants
√ applicants for employment (for example, you may
need to provide accommodation for the interview
process, such as a qualified interpreter when
interviewing persons with hearing impairments)
√ members of the public

In determining the type of auxiliary aid or service to provide, you must give primary consideration to the request of the individual with a disability. A request for an “auxiliary aid or service” constitutes a request for reasonable accommodation or reasonable modification. Such a request must be reviewed and considered on a case-by-case basis; you cannot impose “blanket” policies or procedures. And, while you may consider “undue hardship” in providing accommodation, the process for considering a reasonable accommodation request is an interactive one and, in the end, you are obliged to provide an accommodation that is “effective.”

What are the obligations of private employers?

So far, we have focused on the obligations of entities that administer and/or operate federally funded programs and activities as well as the obligations of state and local governments with regard to persons with disabilities. Turning to private employers, the U.S. Department of Justice and the U.S. Equal Employment Opportunity Commission (EEOC) provide guidance for employers of 15 or more employees.

While private employers are not required to have the “auxiliary aids and services” notice on all their communications, these employers are prohibited by federal civil rights laws from discriminating against “qualified individuals with disabilities” with respect to the terms, conditions, and privileges of their employment. Discrimination may occur in a variety of employment practices, such as:

√ hiring and firing
√ job application procedures
√ job assignment
√ training
√ promotions
√ wages
√ benefits (including health insurance)
√ leave

A “qualified individual with a disability” is an individual who: (1) meets the bona fide occupational requirements (i.e., legitimate skill, education, and experience requirements for the job); and (2) can perform the “essential functions” of the job (otherwise defined as the core duties that are the reason for existence of the job position). The person with a disability must meet these two criteria even without accommodation to be deemed “qualified.” On the other hand, a private employer is prohibited from disqualifying this person on grounds that s/he is unable to perform marginal or incidental job functions. See also prior paper titled, “The Meaning of Disability.”

If a “qualified individual with a disability” requests accommodation, the private employer must consider the accommodation request. Accommodation requests may take the form of:

√ requesting an auxiliary aid or service as described above
√ restructuring a job
√ modifying or adjusting the work environment
√ making existing facilities accessible to, and useable by, persons with disabilities
√ modifying work schedules
√ reassigning a current employee to a vacant position for which the employee is qualified

The purpose of providing reasonable accommodation is to allow the qualified individual with a disability the opportunity to contribute fully in the workplace and enjoy the benefits and privileges of employment.

A private employer should give consideration to a person’s accommodation request, but the employer is not required to provide accommodation if it would create “undue hardship.” Under hardship is an action that constitutes “significant difficulty or expense” in relation to the size of the employer, the employer’s resources, and the nature of the employer’s operation. This may also involve health and safety concerns; specifically, the individual poses a “direct threat” to self and/or others. Accommodation requests and considerations of undue hardship must be made on a case-by-case basis.

Seena Foster is an attorney and award-winning author of “Civil Rights Investigations Under the Workforce Investment Act and Other Title VI-Related Laws: From Intake to Final Determination.” She is also a Partner with Title VI Consulting in Alexandria, VA. You may visit her website at www.titleviconsulting.com.

OFCCP: Building an Affirmative Action Program (Sept. 2018)

Friday, September 14th, 2018

WHAT is a FAAP? OFCCP knows from listening to stakeholders that an affirmative action program only covering employees in one building at a specific geographical location does not always reflect how business actually operates.

Affirmative action programs based on functional units, or FAAPs, may provide a better option. FAAPs can span geographical locations, freeing federal contractors from the traditional establishment-based model when employees who work together are not located in the same building.

WHAT’s new? Yesterday, OFCCP proposed changes that reduce burden for contractors in the FAAP program. You can learn more about the program, and the proposed changes to it, by reading a notice in the Federal Register and a draft of the revised FAAP Directive.

WHO should use a FAAP? OFCCP encourages all contractors who need to develop an AAP to consider using a FAAP. As always, OFCCP will be available to assist contractors before, during, and after the standard FAAP review process.

HOW can I give OFCCP feedback on the FAAP program? We would like to hear your thoughts on how the FAAP program could be improved to work better for you. To share your thoughts, please submit comments via www.regulations.gov.

Comments on this proposal must be submitted on or before November 13, 2018.

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IER & EEOC Webinar on Employment Discrimination Protections for AAPI and other Worker Communities

Friday, September 14th, 2018

The EEOC Boston Area Office and IER are offering a free webinar on employment discrimination protections for AAPI and other worker communities. This webinar is open to all members of the public.

Join the U.S. Equal Employment Opportunity Commission’s (EEOC) Boston Area Office and the U.S. Department of Justice, Civil Rights Division’s Immigrant and Employee Rights Section (IER) for a free webinar on worker protections against employment discrimination. The webinar is open to all members of the public. It will discuss worker’s rights under laws these offices enforce with a focus on issues that might be relevant to Asian American and Pacific Islander communities.

Wednesday, September 19, 2018

1:30 – 3:00 p.m. Eastern Time

Register

For webinar materials in alternate format or other reasonable accommodation requests, contact Lorren Love at Lorren.Love@usdoj.gov or (202) 616-5594 at least one week before the webinar or as soon as possible, to ensure there is adequate time to arrange for the accommodation. In your request, please include a description of the type of accommodation needed and your contact information.