OFCCP Brings Back PDNs

Ricardo Gomez Angel pic of tunnel worker
Photo by Ricardo Gomez Angel on Unsplash

Are you a federal contractor? There’s a bit of good news for you from Washington. The Office of Federal Contract Compliance Programs (OFCCP) is bringing back the PDN–predetermination notice.

In recent years, OFCCP had been reserving PDNs for systemic discrimination cases, allowing regional and district offices discretion on whether to issue PDNs prior to Notices of Violation (NOVs). February 27, 2018, OFCCP Director Ondray Harris put an end to that with is directive. He ordered the OFCCP to issue PDNs “at the conclusion of compliance evaluations where contractors have not provided adequate explanations to proposed discrimination findings.” This goes for both individual and systemic discrimination allegations.

The directive explains, “As part of OFCC’s ongoing efforts to achieve consistency across regional and district offices, increase transparency about preliminary findings with contractors, and encourage communication throughout the compliance evaluations process, OFCCP is instituting a uniform approach to the use of PDNs in compliance evaluations where the agency believes discrimination findings may exist.”

The directive also directs the Office of the Solicitor to review PDNs before submission to the OFCCP’s national office for review and approval.

So, no more discretion for regional offices. Transparency just became a mandate. Yea!

OFCCP Brings Back PDNs

4 Tips to Prevent and Respond to Sexual Harassment

Young blonde woman holding up a #MeToo placquard in front of her face
Photo by Mihai Surdu on Unsplash

Over the past weeks, an avalanche of sexual harassment allegations has blanketed the country. Women–and men–feel a new confidence. They’re coming out in droves to denounce sexual harassment and other misconduct experienced in the workplace recently–and not so recently. The sheer number of (mostly) women telling their stories inspired one woman to create a Twitter hashtag, #MeToo. More than 1.7 million people in 85 countries have re-Tweeted the hashtag to speak out and name their harassers.

Ousters and Settlements Increase

Business Management Daily featured a PricewaterhouseCoopers study which revealed that over the past five years, 5.3 percent of chief executive officers have been forcibly removed due to lapses in ethics. That includes harassment. The 36 percent increase is “due in large part to increased public scrutiny and accountability of executives.”

In the United States alone, the study showed a 102 percent increase in CEO removals from the previous five years.

The settlements have been costly. In 2016, pre-Harvey Weinstein, harassment claims cost U.S. companies upwards of $482.1 million in Equal Employment Opportunity Commission (EEOC) settlements, which is an all-time high. (Note: Post-Harvey Weinstein, the EEOC sexual harassment section of its website experience a four-fold increase in visitors).

Corporate Vulnerabilities Show

With people feeling freer to report their alleged harassment, more people are expected to come forward with allegations in businesses of every size. Legitimate or not. That’s when social media, PR, and legal disasters can set in.

Now is the time to assess vulnerabilities. Brush off and tidy up (or create) complaint procedures. Develop a response plan before a response is needed. Start yearly, mandatory, in-person, interactive anti-harassment training for everyone, including board members. And make sure anyone who supervises anyone is trained on how to spot harassment, take complaints, conduct investigations, determine punishments and work with legal to finalize results.

The #MeToo movement is also bringing out more harassment victims. The EEOC, which received about 30,000 harassment complaints each year, estimates “only six percent to 13 percent of individuals who experience harassment file a formal complaint.” This makes educating supervisors on how to spot and stop harassment even more critical. Knowingly allowing harassment of any kind to go on creates a hostile work environment, which can force people to quit–and then sue.

Tips to Prevent and Respond to Sexual Harassment

Before the first complaint comes in–and definitely after–take action to protect employees and the business from future allegations.

  1. Tweak Training. Anti-harassment training is usually seen as a human resources requirement aimed at limiting liability. Nothing more. People will attend, but not engage. Make clear in communications, modeling by leaders, as well as in training that the corporate culture is one of equality and hands-off respect. Dump online training in favor of face-to-face role-playing so attendees know what kind of behavior is tolerated–and not.
  2. Increase Reporting Avenues. Usually, the affected person is directed to HR or their supervisor or some third-party hotline. That’s not good enough, especially when the harassment is coming from the supervisor. Harassed employees are unlikely to file complaints if they have to go to their supervisor. Make every lead worker, supervisor, manager, director, vice president, the president, and even board members contact points. Ensure they are given yearly training on how to handle harassment complaints along with their usual anti-harassment training.
  3. Be Blunt with CEOs and Top Executives. Explain the complaint. In the case of executive harassers, discuss how to protect the business from an expensive lawsuit in light of the executive’s actions. Courts hold executives and management to a higher standard. Keep in mind, if what’s potentially going on is known and no one tried to put a stop to it, the business–and the business owner and anyone else in charge–is open to corporate and personal liability.
  4. Get Help if Needed. Not everyone has the time to train to do investigations, especially in small businesses. There are outside agencies to turn to, not the least of which would be the business’ legal counsel. These people are better able to perform investigations, and they can explain any legal risks as well as provide guidance on how to proceed. Business owners who do proceed alone should have legal counsel review steps taken in the investigation, any notes and evidence before making a disciplinary or termination decision.


4 Tips to Prevent and Respond to Sexual Harassment

Cut Your Hair! Grooming Policy Under Fire

Big business or small, everyone has a certain image they want to present to their customers. For many, maybe most, that image is professional. That means dressing nicely, perhaps pantsuits or skirt-suits for women and suits or blazers and ties for men or some version of business casual for everyone. When it comes to grooming, the word neat springs to mind. Trimmed up and styled for women and trimmed up no lower than the collar for men.

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But, wait a minute. Can an employer’s grooming policy really dictate how a person presents, right down to hairstyle?

That answer to that is yes, but sometimes no.


A famous example of violating a grooming policy happened in Baseball a little more than 20 years ago. Baseball fans might recall back in 1991 the late George Steinbrenner, then owner of the New York Yankees, not only benched one of his players, Don Mattingly, but also fined him $250 dollars plus $100 dollars a day for every day he kept his hair long. A no-no in the Yankee organization. Donny Baseball was too shaggy for the owner’s taste. Steinbrenner wanted clean-cut players, and clean-cut players he was going to get. There was a long-standing grooming policy in place, and Mattingly’s contract stated that he would abide by team standards and rules.

Another, not-so-famous case occurred in 2013. The Equal Employment Opportunity Commission (EEOC), sued a company, Catastrophe Management Solutions (CMS) on behalf of an African-American woman, Chastity Jones, whose job offer was rescinded, because she wouldn’t cut her curl-locks, a variation of dreadlocks. Dreadlocks violated CMS’s grooming policy. In 2014, the suit went to the District Court for the Southern District of Alabama, Southern Division, where the EEOC lost. The suit was then bumped up to the Eleventh Circuit Court of Appeals where, again, in 2016, the EEOC and Jones lost.


Where a grooming policy doesn’t work is when it becomes so rigid, it doesn’t accommodate for protected characteristics, such as religion (think Title VII). Family Foods, Inc., a North Carolina corporation that operates a Taco Bell chain in that state, learned their policy went too far when one of their employees, Christopher Abbey, was fired, because he refused to cut his hair. He refused on the basis of his religion. A practicing Nazarite, he had not cut his hair since he was 15-years-old.

The termination violated Title VII of the Civil Rights Act of 1964, which requires employers to attempt to make reasonable accommodations to employees’ sincerely held beliefs as long as the accommodation doesn’t pose any undue hardship. Family Foods did not.

Undue hardship is, of course, undefined.

Family Foods paid a dear price for firing Abbey: $27,000 and other relief. They also had to adopt a formal religious accommodation policy and conduct annual training on Title VII and its prohibition against religious discrimination and retaliation in the workplace. They also had to post a copy of its anti-discrimination policy in all of its facilities.


The EEOC vs. CMS (Chastity Jones) case in the Eleventh Circuit Court, if read all the way through, does provide some guidelines that help employers navigate creating a grooming policy that won’t land it in court.

It states:

  • Title VII protects persons in covered categories with respect to their immutable characteristics, but not their cultural practices.
  • Discrimination based on the basis of black hair texture (an immutable characteristic), is prohibited by Title VII.
  • A hairstyle, even one more closely associated with a particular ethnic group, is a mutable characteristic.
  • Adverse action on the basis of a black hairstyle (a mutable choice) is not [unlawful].
  • A hiring policy that distinguishes on some other ground, such as grooming or length of hair, is related more closely to the employer’s choice of how to run his business than equality of employment opportunity.

So, the key word in grooming policy guidelines is mutable. If a characteristic such as a hairstyle can vary or be changed, you can ask for a change or make a change (termination, suspension, etc.). Just be certain the request for change doesn’t violate Title VII or other current labor laws.

Remember, there are federal, state, and local laws, so it’s always wise to check with a local labor attorney before making drastic actions.

Information provided on this site is not legal in nature. All reviews and opinions are submitted and based upon extensive research, experience in the human resources and labor relations fields, and are not, in any way, legal opinions.


Cut Your Hair! Grooming Policy Under Fire

6-Month Compliance Delay for New FLSA Overtime Rule?

There may be hope for employers who are having difficulty preparing for the upcoming mandatory new Fair Labor Standards Act (FLSA) Overtime Rule compliance. The House of Representatives passed a bill Sept. 28 that would give employers a 6-month compliance delay. That same day, Sen. James Lankford, R-Okla., introduced a bill in the Senate to delay the rule.

As it stands, employers must complete their job description audits before Dec. 1, 2016, to determine which positions are exempt and non-exempt from the overtime rule and adjust pay bands accordingly, so they can implement wage and salary adjustments effective Dec. 1, 2016.

If enacted, employers would have until June 1, 2017, to comply.

Information provided on this site is not legal in nature. All reviews and opinions are submitted and based upon extensive research, experience in the human resources and labor relations fields, and are not, in any way, legal opinions.


6-Month Compliance Delay for New FLSA Overtime Rule?

Don’t Halt Compliance Efforts Just Because of Legal Challenges to the New Overtime Rule

On Sept. 20, 2016, Nevada and Texas led 21 states, including the Commonwealth of Kentucky, in filing a lawsuit to challenge the Department of Labor’s (DoL’s) new overtime rule changes set to go into effect Dec. 1 of this year. Right behind them, the U.S. Chamber of Commerce, National Automobile Dealers Association, National Association of Wholesaler Distributors and other groups filed their own appeal.


“The DoL went too far in the new overtime regulation,” said Randy Johnson, senior vice president of Labor, Immigration, and Employee Benefits for the U.S. Chamber. “We’ve heard from our members, small businesses, nonprofits, and other employers that the salary threshold is going to result in significant new labor costs and cause many disruptions in how work gets done,” Johnson said in a press release. “Furthermore, the automatic escalator provision means that employers will have to go through their reclassification analysis every three years. In combination, the new overtime rule will result in salaried professional employees being converted to hourly wages, and it will reduce workplace flexibility, remote electronic access to work, and opportunities for career advancement.”

The  Chamber Suit

  • The Chamber suit charges that the rule departs from the intent established by Congress in the Fair Labor Standards Act (FLSA) 78 years ago in that:
  • It sets an excessively high threshold for determining which positions qualify as executive, administrative, and professional.
  • The DoL “ignored regional and industry differences that have been previously acknowledged,” which results in a one-size-fits-none salary threshold.
  • The automatic triennial update “with no rulemaking or taking input from affected parties is not authorized by the Fair Labor Standards Act or any other relevant statute.”

The  States’ Suit

The states’ suit notes:

  • The new rule disregards the actual requirement of the FLSA by doubling the minimum salary threshold (from $23.660 to $47,476) that applies regardless whether an employee actually performs white-collar duties.
  • The best first indicator of white-collar exempt status is if a person in the exempt position actually performs white-collar work, not whether the salary meets the minimum.
  • The triennial salary increase based on the 40th percentile of the weekly earnings of full-time salaried workers in the lowest wage Census region. The increase “not only evades the statutory command to delimit the exception from ‘time to time,’ as well as the notice and comment requirements of the Administrative Procedure Act, it also ignores the DoL’s prior admissions [in President George W. Bush’s administration] that ‘nothing in the legislative or regulatory history…would support indexing or automatic increases.”

The new rule unconstitutionally requires states to pay overtime to state employees that are performing white-collar functions when the employees earn less than an amount to be determined by the executive branch of the federal government.

Lawsuits Can Fail

As heartening as these lawsuits may be to businesses, there is always the possibility that the lawsuits fail. Nearly since the rule was proposed, there have been experts who have predicted that the rule would be challenged in the courts.

But as Lawrence Mishel, Ph.D., economist and president of the Economic Policy Institute, a nonpartisan, Washington, D. C., think tank said in a recent interview by Society for Human Resource Management, “The DoL fulfilled all of their obligations during the rulemaking proceeding. They crossed every t and dotted every i. The final overtime pay rule update should be implemented as planned starting Dec. 1.”

With that in mind, don’t stop preparations for complying with the new overtime rule. The deadline for having everything in place will be here sooner rather than later.

Information provided by writer, Diane Faulkner, is not legal in nature. All reviews and opinions are submitted and based upon extensive research, experience in the human resources and labor relations fields and are not, in any way, legal opinions.

Don’t Halt Compliance Efforts Just Because of Legal Challenges to the New Overtime Rule

Can You Cut an Employee’s Pay and Not Get Sued?


Anytime you want to cut an employee’s pay, you run the risk of getting sued. It’s just that simple. This is especially true if the employee is in a protected class. Anyone can try to file a lawsuit for any reason. Let’s just get that out there.

That said, the reason and circumstances surrounding a cut in pay are key.

In the U. S., employers can cut pay as long as the employee isn’t covered by a collective bargaining agreement or some other agreement, like an employment contract. The cut also cannot reduce the pay to a level that’s less than the minimum wage. If the position is  exempt from the overtime laws, (Fair Labor Standards Act), then you must keep the salary above the minimum to maintain exempt status. Just know that there is the new minimum salary level of $47,476 that goes into effect December 1, 2016, and that if the person is to stay exempt, that test must still be met.

Note: the employee may be eligible for unemployment compensation for the pay that’s lost.

How Much Notice Must I Give?

In Florida, where I am, there are no laws that address when or how you may cut an employee’s pay or whether an employer must provide notice prior to the reduction. That said, the reduction can only apply to hours worked after the status change. (i.e. Salaried workers would be paid the new rate the following full workweek, as you cannot separate out hours without giving up exempt status). It’s up to you–in Florida– if you want to give notice and how far in advance you want to do so.

To check your state wage payment laws, check with your state Department of Labor or look up your state on The Lunt Group’s Employment Law Handbook.

When is it Illegal to Cut Pay?

  • When you don’t give notice (in some states). Pay cuts can’t be retroactive (in all states).
  • When you cut pay in response to protected activity. e.g. An employee files a sexual harassment complaint, and then you cut the employee’s pay as a result. (Title VII retaliation). An employee complains about working conditions or wages on social media, and you cut pay as a result. (NLRA retaliation–NLRA covers non-union employees, too).
  • When you only cut pay for specific classes. e.g. It’s discriminatory to cut all Asians’ pay, but no one else, or pay for everyone over 40, but no one else, etc.
  • When the cut drops pay below minimum wage, even if the employee agrees to the cut. Where federal and state minimums differ, the higher rate applies.
  • When there is a contracted amount or there is an employment contract. Most common in union situations where each job’s rate is clearly spelled out.
  • When the exempt employee pay cut is temporary. One requirement for exempt employees is that their pay rate remains the same, regardless of hours worked. A temporary cut is illegal, e.g. cut for a few weeks or months, but a permanent cut is legal.
Circumstances Matter

Circumstances are important when choosing to cut pay. If a business is foundering, then it’s critical that the CEO take the same pay cut as everyone else. To do otherwise would further decrease morale and set people off to find work elsewhere. Taking the cut would still be financially shocking, just not as emotionally devastating, because the pain would seem to be equally spread.

There are times, though, when an employee experiences a substantial job change–down, not up.  Demotions in jobs may also equate to demotions in pay. It all depends upon your wage/salary bands and  your position descriptions.

Say you have several different offices of different sizes, each managed by a branch manager. While the core management duties of each manager are the same, e.g. manage people, hire and fire, evaluate, etc., the size of each branch is different. Corresponding responsibilities would also be different. One manager may have 20 employees, while another has only three. The branch manager of the largest branch sits participates in meetings with the president and other department managers to make significant decisions for the enterprise, while the others do not. If each branch manager is working under the same position description and is paid within the same salary band as the others, demoting one and cutting pay could get tricky, especially if the one being demoted is in a protected class. There’s room for legal action.

The fix is to update position descriptions for each branch and denote them as level one, two, three, whatever. Next, you would update you salary bands to correspond with how each branch prices out. Broadcast the update throughout the enterprise and specifically communicate with each branch manager as to the new job titles and salary bands. Once you’ve done this, you’re better set in moving forward with the demotion as long as you have your documentation in order. (The updates should be done for all positions, especially if they haven’t been done in a while).

Once you have your ducks in a row, you should feel more comfortable proceeding with the demotion and pay cut.

As always, whenever you are unsure about the steps to take in tricky employment situations, a labor attorney can always help you make the right decisions to keep you out of court.

Information provided on this site is not legal in nature. All reviews and opinions are submitted and based upon extensive research, experience in the human resources and labor relations fields, and are not, in any way, legal opinions.
Can You Cut an Employee’s Pay and Not Get Sued?

5 Steps to Prepare for New Overtime Exemptions Rule

It’s almost mid-year. Are you prepared for the impending changes to the overtime exemptions rule? This rule isn’t like the Affordable Care Act where the changes will be doled out over the course of a decade. No. Once the Department of Labor (DoL) makes its final ruling, you’ll likely have fewer than 90 days, if not fewer than 60 days, to comply. And, those days will be before the year’s end.

That means you need to start preparing now, if you haven’t already, because both your 2016 staffing and budget plans will be affected.

Even though the final rule hasn’t been handed down, there are things you can do to prepare, regardless the form the rules take:

1. Audit exempt employees’ work hours

The DoL has proposed to raise the minimum exempt employee salary threshold from $23,660 to $47,476, so the first step you need to take is to calculate the number of hours current exempt employees work who make less than the new minimum. You can’t assume exempt employees all work 40 hours a week. Many work 45, 50, or more. Many take meetings or conduct job interviews after hours. Others are checking and responding to emails and voicemails after hours and on the weekends. Don’t allow yourself to be blindsided.

The next thing to consider is whether to give raises to those who are below, but very close to, the threshold and who are most likely to work overtime to avoid the overtime obligations.

Note: Non-discretionary bonuses may be allowed to be counted, and possibly commissions, toward 10 percent of workers’ salary levels. That may help to move a few of those near the line over the threshold without having to give them a raise. But, no one knows until the final rules are issued.

2. Assess effects on benefits

Do you have certain benefits for exempt employees that non-exempt ones don’t have? That’s a question you’ll want to address. Once re-classifications are instituted, many people may be losing benefits they may have been enjoying for years.

If that’s the case, should you change your benefits plans to allow those reclassified workers to keep their benefits, or do you want to eliminate those benefits to make up for any costs as a result of now paying those workers overtime?

3. Expand time-tracking systems

Any way you look at it, the non-exempt population is going to swell. That means you need to expand your time-tracking systems to ensure proper overtime pay. A visit with the tech department now will go a long way toward implementing a workable system to handle the new load later in the year.

4. Look at remote work arrangements

What do the impending rule changes mean for remote work: checking and responding to work email and voicemail, taking off-site meetings and calls after work, etc.

You can make all the rules you want to prohibit employees from engaging in these activities, but some of them are just going to do it. And, whether you agree to the overtime or not, whether or not you approve it, you still have to pay for the time spent doing it. And, when that happens, you need to ensure you have a way to track that time so you can correctly compensate them. That’s another reason to get with your IT people now rather than later. They  need time to come up with tracking mechanisms for after-hours and at-home work.

It’s interesting to note that in the Spring 2015 DoL Regulatory Agenda,  the DoL said it is seeking information on “… [T]he use of technology, including portable electronic devices, by employees away from the workplace and outside of scheduled work hours …”

This means there could be  some rule-making on this subject as well — like perhaps a definition of what qualifies as “de minimis” work.

Currently, the FLSA says “de minimis” work (typically five minutes or less) done beyond the 40-hour workweek by non-exempt employees is not compensable.

The common practice of workers reading and responding to emails off the clock on their smartphones, though, has complicated the issue of “de minimis” work.

5. Create a communication plan

Believe it or not, (the DoL doesn’t), being reclassified from exempt to non-exempt feels like a demotion.

If you don’t plan to raise some (or all) of your currently exempt workers’ salaries to the new minimum, you need to have some sort of communication plan in place. If you’re not going to raise some workers’ salaries and they’re about to be reclassified as non-exempt, you need a plan in place for how you’ll break the news to them.

Biggest issues to cover:

  • Punching a clock. More workers will be doing it, and it will look and feel like a demotion. How will you explain why it’s now necessary?
  • Loss of flexibility. Taking time off to go to the doctor or attend a child’s event could result in less pay for newly minted hourly workers. How will you break this news to them?  Will you let them make up the time? If so, will the other hourlies be allowed to make up time?

Bonus: Potential duties test changes

The DoL may eliminate the “concurrent duties” rule and require employees to spend more than 50% of their time exclusively on exempt duties for them to maintain an exempt classification.

Assume those changes will be adopted and you could avoid costly surprises down the road.

Information provided by writer, Diane Faulkner, is not legal in nature. All reviews and opinions are submitted and based upon extensive research, experience in the human resources and labor relations fields and are not, in any way, legal opinions.

5 Steps to Prepare for New Overtime Exemptions Rule