Affirmative Action/OFCCP Compliance

Our colleague Laura A. Stutz has a Retail Employment Law Blog post that will be of interest to many of our health industry readers: “EEOC Implements Nationwide Program to Disclose Employer Position Statements and Supporting Documents.”

Following is an excerpt:

The Equal Employment Opportunity Commission (“EEOC”) recently implemented nationwide procedures for the release of employer position statements to Charging Parties upon request. The new procedures raise concerns about disclosure by the EEOC of non-public personnel and commercial or financial information the employer may disclose to support its position with regard to the Charge.

Before releasing the supporting documents to the Charging Party, the EEOC will review the employer’s submissions and withhold only information the Commission decides should be considered confidential. The type of information considered confidential by the EEOC includes:

  • Sensitive medical information (except for the Charging Party’s medical information)
  • Social Security Numbers
  • Confidential commercial or confidential financial information
  • Trade secrets
  • Non-relevant personally identifiable information of witnesses, comparators or third parties, e.g., dates of birth in non-age cases, residential addresses, personal telephone numbers, personal email addresses, etc.
  • References to Charges filed with the EEOC by other Charging Parties

Read the full post here.

by: Kathleen M. Williams

A long-awaited decision on the jurisdiction of Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) over health care providers was released this week.  The decision, UPMC Braddock v. Seth Harris(Acting Secretary of Labor), by Judge Paul Friedman of the U.S. District Court for the District of Columbia, upholds broad and deep OFCCP jurisdiction – meaning that hospitals and other health care providers will be required to write affirmative action plans, track and report the race and sex of applicants, and be subjected to OFCCP compliance reviews with regard to the three affirmative action laws it enforces: Executive Order 11246; Section 503 the Rehabilitation Act of 1973; and the Vietnam Era Veterans Readjustment Assistance Act.

For years, a significant area of controversy with regard to OFCCP’s jurisdiction over health care providers has centered around the definition of a government “subcontractor.”  The issue in UPMC was whether three hospitals which did not directly contract with the federal government are nonetheless covered subcontractors.  The District Court has now held that those hospitals are covered subcontractors by virtue of their having entered into a contract with UPMC, the insurance carrier for UPMC Health Plan, to provide medical services to FEHBP insureds.

In so holding, the Court:

  • invalidated FEHBP regulations that expressly state that a subcontract to provide medical services is not  a government “subcontract,” holding that FEHBP lacks the authority to define “subcontract” in a way that it at odds with DOL regulations;
  • interpreted “non-personal services” to include medical services;
  • held that contracts with hospitals are “necessary to the performance” of the insurance company’s contract with the federal government, and thus covered government “subcontracts,” (and holding that an HMO, unlike a traditional insurer, contracts with the federal government to provide insurance as well as medical services);
  • held that the consent of the hospitals to become government contractors was not required (a decision in accord with longstanding OFCCP decisions).

This decision is expected to empower the OFCCP to be ever more aggressive in its assertion of jurisdiction over those who provide medical services to government employees and beneficiaries.  Although UPMC deals with hospital agreements with an HMO as opposed to a traditional insurer, the decision is broadly written and may well be held to be more broadly applicable.

For a detailed analysis of the history of OFCCP and the health care industry, see AHLA Connections, Vol. 15, Issue 5, May 2011 (“New Assertions of Jurisdiction by the OFCCP”) and a HEAL Blog post, “More on the Continuing Saga of OFCCP Jurisdiction in the Health Care Field,” posted June 1, 2012.

A monthly breakfast law briefing and networking series specifically  designed for health care and wellness company executives and human resources professionals.  This informative series will address labor and employment issues during these challenging times and offer solutions.

For additional information and to register,  contact Carla Llarena or by tel: (404) 869-5363.

February 8, 2012 
Today’s OSHA: What Healthcare Companies and Practices Need to Know

March 14, 2012
It Can Hurt to Ask: TMI in the Digital Age
(Focusing on Social Media & Background Checks)

April 11, 2012
Best Practices to Avoid Wage and Hour Liability

May 9, 2012
What You Need to Know About the Americans with Disabilities Act,
and How Your Managers are Likely Getting it Wrong

June 13, 2012
E-Verify and Complying with Federal and State Immigration Law

July 11, 2012
Selling a Physician’s Practice

August 8, 2012
Employee Handbooks: How to Draft Them to best Protect Your Company and Communicate to Your Employees

September 12, 2012
Alternate Dispute Resolution: Is Mediation and/or Arbitration Preferable to Litigation for Healthcare Employers?

October 10, 2012
The 2012 Presidential Election and How it Will Impact You as an Employer

November 14, 2012
Doctor and Executive Compensation and Benefits

December 12, 2012
The Top 10 Biggest Mistakes that Health Care Employers Make
and How to Avoid Them

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8:30 a.m. – 9:00 a.m. Registration, Breakfast, and Networking
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