American Society of Employers

1 October 2019

Harvard Wins Round 1 of Anti-Affirmative Action Lawsuit

Author: Anthony Kaylin

A Massachusetts federal court judge ruled against the anti-affirmative action coalition suing Harvard over its admissions standards.  The coalition Students for Fair Admissions or SFFA argued that Harvard’s process discriminated against Asian-American applicants because of a subjective personal rating through which those applicants received lower scores due to racial bias.   In effect SFFA argued that the president and fellows of Harvard College violated Title VI of the...

22 August 2017

What is the Future of Affirmative Action?

Author: Anthony Kaylin

In Nov. 2014, the Students for Fair Admissions (SFFA) filed a complaint alleging that Harvard is “employing racially and ethnically discriminatory policies and procedures in administering the undergraduate admissions program.”  The complaint alleges that Harvard uses racial quota and balancing in its admission process, which in particular adversely impacts Asian American applicants.  The admission standard for Asians, SFFA argues, is a higher one than other...

28 March 2017

Pitfalls for Affirmative Action for Individuals with Disabilities

Author: Anthony Kaylin

Should employers ask applicants to self-identify for disability?  The Office of Federal Contract Compliance Programs (OFCCP) definitely says yes for federal contractors.  More specifically, the new disability regulations which were effective March 24, 2014 require under §60-741.42 that all contractors shall invite applicants to inform the contractor whether the applicant believes that he or she is an individual with a disability.  The OFCCP then established a workforce...

7 March 2017

Has OFCCP’s Mission Run Its Course?

Author: Anthony Kaylin

A current question before the Trump Administration is whether the OFCCP has outlived its usefulness.  The Heritage Foundation rightly asks whether there is a need for the OFCCP given that many of its current initiatives are the purview of other agencies. Moreover, there is a real question of the effectiveness and ROI of the agency. 

27 September 2016

GAO Issues Report on OFCCP Activities

Author: Anthony Kaylin

Upon a request by Congress, the General Accounting Office (GAO) conducted an audit on the U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP) activities for the past six years.  OFCCP is charged with ensuring that about 200,000 federal contractor establishments take affirmative action to provide equal employment opportunities for certain protected classes of workers. A number of complaints arose from the federal contractor community that reached...

5 July 2016

Supreme Court Extends the Shelf Life of Affirmative Action

Author: Anthony Kaylin

The Supreme Court, in a surprising 4-3 decision - Justice Kagen had recused herself - upheld university admission affirmative action programs.  While this is a crucial decision that affects colleges and universities, it is not likely to directly impact employers.

12 November 2014

“Won’t fit in” is No Defense in a Failure-to-Hire Action

Author: Anonym

Generally when two or three candidates are in the final round of interviews, the question usually is not whether they can do the job but whether they can be successful in the organization.  Every culture is different, but the determination of “fit” is a subjective one.  Because of that subjectivity it is usually a terrible defense in a failure-to-hire case. Abrams, an African-American male, joined the Connecticut Department of Public Security (DPS) in 1986. In 1990, he...

22 October 2014

What’s New in the ACA Universe?

Author: Anonym

Changes to Cafeteria plans and opting out by employees: The Internal Revenue Service has issued Notice 2014-55 which proposed amendments to Regulations Sec. 1.125-4 to define two sets of circumstances under which employees can revoke their election of employer-sponsored coverage under a cafeteria plan and purchase a qualified health plan through an exchange. The first situation involves a participating employee whose hours of service are reduced so that the employee is expected to...

15 October 2014

Contractors to See OFCCP’s New Scheduling Letter This Week

Author: Anonym

On Wednesday October 1st, the Office of Federal Contractor Compliance Programs (OFCCP) released the new audit scheduling letter approved by the Office of Management Budget (OMB). The new scheduling letter and Itemized listing now has 22 Items to report on, up from 11 in the 2008 Scheduling Letter. The letter will request submission of the AAP and supporting documentation by electronic means, but hard copies can still be sent in.  If the data is maintained electronically, it must be...

8 October 2014

Final Rules for New $10.10 Minimum Wage for Federal Contractors

Author: Anonym

On October 1, 2014, the DOL announced final rules for the $10.10 minimum wage for federal contractors as required under  Executive Order 13658.  The EO, which the President signed February 12, 2014, requires that the hourly minimum wage paid by contractors to workers on covered contracts with the federal government be at least (1) $10.10 per hour, beginning January 1, 2015; and (2) an amount determined by the Secretary of Labor, beginning January 1, 2016, and annually...

13 August 2014

OFCCP Issues Proposed Regs on Annual Equal Pay Report

Author: Anonym

The Office of Federal Contract Compliance Programs issued its proposed regulations for an Annual Equal Pay Report on August 8th.   These proposed regulations were required as directed by the Presidential Memorandum — Advancing Pay Equality through Compensation Data Collectionthat President Obama signed on April 8th.  The regulations run only five pages but include over 146 pages of discussion.  The following is a very brief summary of the proposed...

6 August 2014

New Executive Order Further Burdens Federal Contractors

Author: Anonym

On July 31, President Obama signed a new Executive Order (EO) on Fair Pay and Safe Workplaces that will affect federal contractors and potential federal contractors for construction and supply and services contracts over $500,000. The White House touts the EO as a means to use only those contractors who are “clean,” meaning they have not committed violations of any of a variety of laws over the past three years. But it will place HR departments in a very difficult...

2 July 2014

HR and the Hobby Lobby Decision

Author: Anonym

Two weeks ago everythingpeople.™This Week! suggested that if the U.S. Supreme Court ruled against Hobby Lobby’s religious objection to covering certain forms of birth control in its group health plan, the question would probably go away permanently. Many HR departments would breathe a collective sigh of relief. But if it ruled in favor of Hobby Lobby, the potential for those HR departments’ jobs to become a lot more complicated could go up considerably. On Monday,...

30 April 2014

Remember This: People Like These People Are Why HR is Necessary

Author: Anonym

ou would think employers would be smarter in this day and age. All of the following occurrences actually happened, although as HR professionals you may have a hard time believing they did. But trust us—they were (some still are) real EEO cases. Think about what you would have done to prevent them or to put a permanent stop to them. And while you roll your eyes at how dumb some allegedly bright people can be, don’t forget—thank you, Donald Sterling—they’re still...

12 March 2014

Who Are You? Unconscious Bias at Work

Author: Anonym

It is fair to say that standards for respectful behavior in the workplace today are generally higher than they were a generation ago. Credit anti-discrimination laws, more diversity, and proactive training practices for that change. One result is that to combat discrimination in the workplace today, HR can focus more on root causes of bias than reactive training. A recent study out of MIT and the University of Chicago, widely reported in the press, involved sending out the same resume with...


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