Author: Brett Holubeck

Drafting an Affirmative Action Plan

Published by Brett Holubeck on March 19, 2020

What is an affirmative action plan? Do you need one? The answer is maybe. Certain federal contractors and subcontractors are required to maintain affirmative action plans. Affirmative action plans (AAP’s) are essentially a plan that allows companies to address workplace imbalances by proactively hiring and promoting disadvantaged groups in the workforce. The federal government also requires these contractors to maintain certain data regarding the composition of their workforce.

Why is this important? Short Answer: Not Complying Will Cost You

If you don’t yet have one, you will likely want to get one or the result could be some hefty fines. Over the last three years the Office of Federal Contract Compliance Programs (OFCCP, which is the agency that enforces the affirmative action plan requirements) collected $81 million dollars in fines which is the highest three-year period on record. In addition, the OFCCP audits for the three-year period covered 2.8 million workers.

Currently, the OFCCP is creating an online portal where federal contractors and subcontractors will submit their affirmative action plans, which will increase the ability of the OFCCP to audit and fine companies. Once this portal is completed, then companies should expect fines to increase and companies that may not have been audited before could be audited. Currently, contractors are not required to turn in their plans to the federal government, a reality that will likely change with the new portal. When and if it does, the OFCCP will be able to run checks on the data that companies are required to submit through the portal to see if there are any areas of concern. To be proactive, now is the time for companies to act and ensure that they are compliant and to get the procedures that they need in place.

What Does the Law Say?

The laws governing affirmative action plan requirements are: 1) Executive Order 11246; 2) Vietnam Era Veterans Readjustment Assistance Act (VEVRAA); and 3) Section 503 of the Rehabilitation Act of 1973.

Executive Order 11246 (the main requirements for Affirmative Action Plans are from this order)

Under Executive Order 11246, federal contractors and subcontractors with a federal contract for at least $50,000 and 50 or more employees must develop and keep a formal, written affirmative action plan.

There are several exemptions that the DOL lists for federal contractors that are subject to Executive Order 11246:

Contracts and subcontracts of less than $10,000 generally are exempt from coverage under Executive Order 11246, though some contracts under that amount are covered, e.g. bills of lading. The regulations implementing the Executive Order exempt certain contracts and categories of contracts. The regulations contain exemptions for contracts involving work performed outside the United States; certain contracts with State or local governments; contracts with religious corporations, associations, and educational institutions; and contracts involving work on or near an Indian reservation.

Section 503 (which involves requirements for the employment and recruitment of individuals with disabilities)

Under Section 503 federal contractors and subcontractors with government contracts in excess of $15,000 are required to take affirmative action to employ and advance in employment qualified individuals with disabilities. “If the company has at least 50 employees and a single contract of $50,000 or more, then it must also develop a Section 503 AAP” https://www.dol.gov/ofccp/taguides/jurisdiction.htm Section 503 applies to businesses that have federal construction contracts, but does not apply to any business that has a federally assisted construction contract.

Vietnam Era Veterans’ Readjustment Assistance Act of 1975 (which details requirements for the employment and recruitment of veterans)

Under VEVRAA, federal contractors and covered subcontractors with contracts that total $150,000 or more and 50 or more employees must have a written AAP but need not have the in-depth statistical analyses required by E.O. 11246. VEVRAA also does not apply to federally assisted contracts.

Required Demographic and Other Information

Companies need to gather the name, gender, race, job, worksite, job code, salary, zip code, city, state, employee identifier (id #), hire date, veteran status, disability status, and other information concerning the employees within a snapshot period (one day during the dates of the affirmative action plan). You should use the demographic information from the information that applicants have voluntarily disclosed through the application process. The current plan year always uses information from last year (the 2020 plan would use information from 2019).

As an example, the information used to build your 2020 plan may be from January 1, 2019 to December 31, 2019 (your plan may have different dates depending on when your federal contract began and the date that you initially chose for your plan). The information for the employee portion of the affirmative action plan will be drawn from December 31, 2019. You will gather the relevant data for all people that were employed by your company on that date. You will not use data for other employees that worked for you throughout the year.

Federal contractors also must maintain information on all hires for the relevant plan year including information about their name, gender, race, job, worksite, job code, salary, disability status, veteran status, and hire date.

Employers must also maintain the same information for the individuals that have applied to work at the company (including the positions that they have applied to), terminations at the company (including whether the termination was voluntary or involuntary and the termination date), and anyone that was promoted (including their new and old job titles and their promotion date). All of this information is used for the statistical analysis of the workforce.

EEO-1 Categories and Affirmative Action Plans

To create an affirmative action plan, employees need to create a list of the number of employees (they also need demographic information about them) and categorize the employees into the appropriate EEO-1 categories. The categories are as follows:

Executive/Senior Level Officials and Managers.
First/Mid-Level Officials and Managers
Professionals
Technicians
Sales
Administrative
Craft
Operatives
Laborers and Helpers
Service Workers

If you need help classifying your workers, then you can review the information available on the EEOC website.

Types of Reports that Must be Run under E.O. 11246

Companies that are federal contractors and subcontractors must run a number of statistical tests using the data described above. In general, the required elements of an AAP include an Organizational display, a Workforce analysis (comparison of each job title by pay with race and gender information), a Job group analysis (analysis of groups of workers with similar duties, responsibilities, pay, and opportunities to improve their career and pay), Utilization analysis (statistical determination of the percentage of minorities and women that are employed in each job group compared to their availability in the area), Availability determinations, Action-Orientated program (how the federal contractor will correct any disparities in hiring or promotions), and several other detailed provisions as required by the regulations.

The statistical analyses to conduct an affirmative action plan results in a determination on whether the employer hires, terminates, and promotes enough employees in various protected groups. It can almost be better expressed in whether the company fails to hire, more frequently terminates, and/or does not promote enough applicants or employees with a certain race, gender, veteran status, or disability status.

These reports typically examine the local area (by zip code(s)) and possibly the national area to determine whether a company has hired enough of different group members based on the available pool of applicants.

Correcting Disparities in an Affirmative Action Plan

As part of the AAP requirements, federal contractors are required to create an action-oriented program to correct disparities. No plan will be perfect the first time, and businesses can and should learn from their data to improve their plans each year.

Companies are required to have an internal audit system to determine whether the AAP is effective in correcting any problem areas and how it can be adjusted to better do so. There are a number of ways that companies can correct disparities in a workforce. I will talk about this briefly below.

The first component of correcting disparities is to make sure that you are keeping the right data. If you are a federal contractor, then you need to keep data regarding hires, promotions, and terminations. However, it is not enough to merely keep that data, you need to make sure that you are keeping track of the data and making changes to your practices based on it. For example, if you have 200 applicants for 40 professional positions, half of them are men, and you have never hired any female candidates, then that is a problem. It looks suspicious and it calls into question whether there is some purposeful discrimination or if it is a disparate impact on applicants of a particular gender. In this case, you obviously need to determine whether there is some form of hiring bias in the organization and potentially find ways to recruit additional female candidates through targeted recruitment methods. This would hold true of any group that is underrepresented in a certain job group.

If you do not have veterans in your organization, then you should consider advertising that may attract more candidates that are veterans. Here are some places to post jobs to try to recruit veterans, but you can read more in my past article on veterans.

The most important thing is that the federal contractor takes actual steps to correct any disparities among groups. Companies should make sure that there are changes in the action-oriented program every year. A plan that has had the same action-oriented program every year is a bad plan. You need to review your plans, work with your recruitment team, and make changes yearly.

Conclusion

Affirmative action plans are something that all federal contractors and subcontractors need to carefully consider. They can be an excellent way for companies to review their promotions, recruitment, and termination statistics to determine where any disparities exist. Companies also benefit from understanding and reviewing what recruitment methods work to find the best candidates and new hires for their companies.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Independent Contractor or Employee

Published by Brett Holubeck on February 28, 2020

Image of a photographer as they are a type of worker that are frequently independent contractors. — Photo by Marco Xu on Unsplash

Are your workers independent contractors or employees? How can you tell the difference? What are the rules to determine whether a worker is an independent contractor in Texas or elsewhere? Why does this even matter?

Why You Need to Classify Employees Correctly

It is expensive to get the answer wrong. Misclassification lawsuits can run in the millions depending on the number of employees involved. For example, New Jersey’s lawsuit against Uber found that Uber owes $649 million for unpaid unemployment and disability taxes for misclassifying drivers as independent contractors.

California’s AB5 law, which made it harder for a number of workers to be independent contractors (as workers must meet all 3 of the ABC factors to be employees as discussed below), may spread to other states. Even if it doesn’t, there will still be the risk of a misclassification lawsuit in a number of states because companies in the gig economy are generally seen by state governments and plaintiff’s attorneys as misclassifying independent contractors and thus are a target for lawsuits.

Proper classification also matters for employees and the states that they work in (as shown by New Jersey’s lawsuit against Uber). Misclassified workers can cost states to collect less unemployment insurance, worker’s compensation insurance, and income taxes. Workers lose out on unemployment insurance (unless they can show in a proceeding that they were misclassified) and workers compensation insurance as contractors. On the other hand, many workers prefer to be independent contractors due to the benefits that they can obtain such as certain tax write offs, more control of their business, and better opportunities to profit. The most recent example of this are freelance writers and truckers in California.

What is an Independent Contractor?

States and the federal government have a wide variety of tests that they use to determine whether a worker is an independent contractor.

To determine whether a worker is an independent contractor under the Fair Labor Standards Act (which governs most wage and hour issues at the federal level) courts use the economic reality test. The test has the factors in the bullets below. All of these factors are considered, and a worker need not meet every factor to be an independent contractor.

The extent to which the services rendered are an integral part of the principal’s business.”

Essentially the question is whether the person performing work that is an essential part of the service that the business provides? A traditional plumbing company that only has plumbers that are independent contractors would not pass the test. Plumbers are a main part of the services provided by the plumbing company. In contrast, a worker that only mows the plumbing company’s lawn every 2 weeks is not an integral part of the plumbing business.

“The permanency of the relationship.”

Is there a definite end to the employment relationship or are the services only provided periodically? A cleaning person that comes once a week could be an independent contractor). Both factors would tend to indicate that the workers are independent contractors.

“The amount of the alleged contractor’s investment in facilities and equipment.”

If the contractor provides their own tools, then that is a good indication that they could be independent contractors. If the company provides all the tools, then that weighs in favor of a finding that they are employees.

“The nature and degree of control by the principal.”

Does the worker have the ability to determine how to perform the work? Are they able to determine the means that they use to complete the project and perhaps the time that they use to complete the project? For example, suppose you hire someone to develop an app for your company. If they can determine the means that they use to develop the app; are free to work on the development when they want; and can choose the programing language they use to complete the app (even though the company decides what the app is supposed to do), then this factor would tend to show that they are independent contractors.

“The alleged contractor’s opportunities for profit and loss.”

Independent contractors typically can make money, lose money, and don’t have a fixed amount of money that they can make (or at least are usually not getting paid an hourly rate).

“The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor.”

Do workers compete with others in the marketplace? Is it possible for them to lose the business? Does the work require them to use independent judgment to complete the work? If so, then this factor supports a finding that they are independent contractors.

“The degree of independent business organization and operation.”

Do they have their own business? Do they set their own schedule? Do they send out invoices? Do they do the things that separate businesses typically do? If so, then they are more likely to be independent contractors.

The ABC Test for Independent Contractors

Many states, like California, use the ABC test to determine whether a worker is an independent contractor. The factors in the test are generally:

The worker is free from control (they determine how to do the work)
The work is outside the usual business of the company
The worker is customarily engaged in an independently established trade, occupation, or business.

In California, all 3 aspects must be met. Meeting all 3 factors can be difficult and is one of the reasons why there is such a fight over workers in the gig economy right now especially in California. Their main issue is whether the workers provide a service that is in the company’s usual course of the business (is Uber a company that provides a ride sharing service) or whether the companies merely connect providers (like Uber drivers or DoorDash workers) with potential clients that need their services. It is a question that will eventually be determined in the courts and legislative branches.

Independent Contractor Tests in Texas and Elsewhere

The Texas Workforce Commission does a great job outlining additional tests that are used in Texas.

Section 401.012 of the Texas Worker’s Compensation Act states that:

“’employee’ means each person in the service of another under a contract of hire, whether express or implied, or oral or written,” and “includes: (1) an employee employed in the usual course and scope of the employer’s business … .” That term does not include “an independent contractor or … a person whose employment is not in the usual course and scope of the employer’s business.” In section 406.121(2) of that law, an independent contractor is defined as “a person who contracts to perform work or provide a service for the benefit of another and who ordinarily:

A. acts as the employer of any employee of the contractor by paying wages, directing activities, and performing other similar functions characteristic of an employer-employee relationship;
B. is free to determine the manner in which the work or service is performed, including the hours of labor of or method of payment to any employee;
C. is required to furnish or to have employees, if any, furnish necessary tools, supplies, or materials to perform the work or service; and
D. possesses the skills required for the specific work or service.”

The TWC also does a great job explaining the definition of independent contractor under the Texas Unemployment Compensation Act:

The Texas Unemployment Compensation Act does not directly define “independent contractor”. Instead, it sets forth a broadly inclusive test, known as the “direction or control” or “common law” test, for who is an employee: “’employment’ means a service, including service in interstate commerce, performed by an individual for wages or under an express or implied contract of hire, unless it is shown to the satisfaction of the Commission that the individual’s performance of the service has been and will continue to be free from control or direction under the contract and in fact”. By implication, an “independent contractor” would be a person whose services do not meet the above test. To aid in application of the common-law test, TWC has adapted the old IRS twenty-factor test for use by the agency (online at

Other agencies have their own tests. The National Labor Relations Board has a test called that is outlined here. As a reminder, the National Labor Relations Act applies to all companies with more than one employee whether unionized or not. The NLRB’s test is useful to determine whether workers are employees (and thus eligible to form a union) or independent contractors (the workers cannot unionize under federal law or at least not with the company that they work as independent contractors for. It is possible that they could be employees of another company where they could unionize.).

The IRS’s test is available here. The IRS’s definition is obviously used for federal tax purposes.

Essentially, there are a ton of rules to follow to determine whether someone is an independent contractor or employee. Almost every state has a different test (and sometimes more than one test for different areas of the law). Different tests may even lead to conflicting results.

Middle Ground

Currently there is no middle ground between independent contractors and employees. Someone is an employee or independent contractor.

Texas did clarify that gig workers are independent contractors last year under 40 TAC §815.134 (the provision relates to unemployment insurance).

The rule defines a “digital network” as (essentially) an app or other piece of software/website that is used to connect the public with contractors that can provide a service that the public is looking for. A marketplace platform is a company that operates a digital platform (ex. DoorDash owns and operates its delivery app).

A worker that uses a digital network (typically an app like Uber or Lyft) to find members of the public to provide services to is a contractor as long as the following factors are met (from 40 TAC §815.134):

–All or substantially all of the payment paid to the contractor shall be based on a per-job or transaction basis;
–The marketplace platform does not unilaterally prescribe specific hours during which the marketplace contractor must be available to accept service requests from the public (including third-party individuals and entities) submitted through the marketplace platform’s digital network;
–The marketplace platform does not prohibit the marketplace contractor from using a digital network offered by any other marketplace platform;
–The marketplace platform does not restrict the contractor from engaging in any other occupation or business;
–The marketplace contractor is free from control by the marketplace platform as to where and when the marketplace contractor works and when the marketplace contractor accesses the marketplace platform’s digital network;
–The marketplace contractor bears all or substantially all of the contractor’s own expenses that are incurred by the contractor in performing the service or services;
–The marketplace contractor is responsible for providing the necessary tools, materials, and equipment to perform the service or services;
–The marketplace platform does not control the details or methods for the services performed by a marketplace contractor by requiring the marketplace contractor to follow specified instructions governing how to perform the services; and
–The marketplace platform does not require the contractor to attend mandatory meetings or mandatory training.

Essentially, the law was passed as a way for Texas to clarify what it took for a worker to be an independent contractor rather than an employee in the gig economy.

What Rules Apply to Your Business

Ok, you just read a number of different laws about independent contractors. How do you know what applies to your business? Before I give a checklist, I need to reiterate that this is a complicated issue. There is a lot of case law about a variety of workers, duties, and positions under these tests. It is an incredibly fact specific question to determine whether a worker is an independent contractor and is often very confusing.

Here are some steps to consider to determine what law to apply:

Why are you trying to determine whether the worker is an independent contractor or employee? Is it a federal tax, federal wage and hour, unemployment insurance, unionization, or workers compensation insurance issue? Workers should almost always be classified the same under the different laws.
What state does your business operate in?
Based on what issue applies and the state, you would then need to examine the law for that area, the state, and potentially the federal laws.
You need to gather the relevant information about the individual worker under the test.
You then need to follow the test and review how courts have looked at cases similar to yours in the past to reach a determination on the proper classification.

Correctly Classifying Workers

As noted above, it is incredibly important that you correctly classify your workers. If you are in an industry that has a history of misclassifying workers, then you should take extra precautions. Common industries where misclassification occurs includes construction, certain medical professionals, and the gig economy.

To avoid these problems, many employers benefit from conducting a review of a worker’s duties and other information to determine whether or not they have been properly categorized. To do this, you must also have good job descriptions. I’ve written about this before in the context of ADA accommodations and white-collar exemptions, but it is also useful for classifying independent contractors.

Conclusion

You need to classify workers correctly. If you fail to classify workers properly, then your company could be subject to an expensive lawsuit that could upend your business. Do your due diligence utilizing the tests available to ensure your workers are classified appropriately.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Negotiating a Collective Bargaining Agreement

Published by Brett Holubeck on February 14, 2020

Two people shaking hands to demonstrate that a collective bargaining agreement has been formed. — Photo by Cytonn Photography on Unsplash

In a past post, I discussed how to respond to union organizing. But what happens if the employees have an election and a union is voted in or if the company has had a collective bargaining agreement for years. What do employers need to know when negotiating an agreement?

As a reminder, a collective bargaining agreement is an agreement between an employer and the union that represents a group of the employer’s employees. It contains the provisions that the parties agree will govern the workplace. The National Labor Relations Act requires the company and the union “to meet at reasonable times and confer in good faith” to try to negotiate a collective bargaining agreement. Employers and the union are required to bargain about the “rates of pay, wages, hours of employment, and other conditions of employment” under the Act. However, neither party is compelled by law to agree to any specific proposal.

Bargaining in Good Faith

Good faith bargaining is only understood in the context of bad faith bargaining. Bad faith bargaining, sometimes called surface bargaining, is not the same thing as an employer lawfully adopting a position at the bargaining table and trying to stick to it. The NLRB considers the underlying reasons for company made proposals and a willingness to compromises when it considers whether the company made a good faith attempt to bargain.

For example, consider a case where the union proposed a wage of $30 an hour for a certain type of job and the company proposes a wage of $20 an hour. The company can demonstrate bargaining in good faith if it can show that the market rate for the position is $20, it pays employees in nonunionized facilities in the same position the same wage, and it has had no trouble finding employees at this wage rate. The employer here is likely bargaining in good faith.

However, consider the opposite scenario. The union proposes a $20 wage for a certain type of employee in a unionized facility, the same type of employees in the employer’s other nonunionized facilities receive the same wage of $20 per hour, and $20 is the market rate for the type of employee. However, the company refuses to budge in its offer of paying $10 an hour. This is likely bad faith bargaining as there is no legitimate business reason for the company to take this position, and it seems to prevent the formation of a contract.

The National Labor Relations Board recently confirmed this in its Phillips 66 decision (369 NLRB No. 13). In that decision the Board held that examining whether a company is bargaining in good faith requires an evaluation of the totality of a company’s conduct. The Board reiterated that bargaining in good faith “does not compel either party to agree to a proposal or require the making of a concession.” The Board further stated that “even ‘adamant’ insistence on a bargaining position ‘is not of itself a refusal to bargain in good faith.”’

There are also differences in good faith bargaining in initial agreements (first collective bargaining agreements) and collective bargaining agreement’s for established units. It is difficult to make a substantial change, especially when you are taking away benefits from employees, in a contract renewal. A proposal to take away a previously given benefit to employees can result in a charge that the employer is bargaining in bad faith. Considering what proposals to make and what proposals to accept in an initial collective bargaining agreement is thus even more important than what happens in subsequent agreements. The initial agreement sets the framework for any subsequent agreements.

What Employers Can Do in Negotiations

The NLRB lists what employers can and cannot do in collective bargaining:

For example, employers can:

Bargain with the union concerning permissive subjects of bargaining, but not to impasse.
Lock out your employees where your sole purpose in doing so is to bring economic pressure to bear in support of a legitimate bargaining position.
Make changes in the scope and direction of your enterprise – matters that lie at the core of your entrepreneurial control of your business – without bargaining about the change. You must, however, bargain with the union concerning the effects of the change on unit employees. (Whether a particular change is a nonbargainable “scope and direction” change or a mandatory subject of bargaining may present a difficult legal question. However, subcontracting that merely substitutes one group of workers for another to do the same work under similar conditions of employment is not a nonbargainable “scope and direction” change.)

What Employers Cannot do In Negotiations

Here is a short list of some of things that employers cannot do, although the NLRB lists more items:

Bypass the union and deal directly with employees. (However, you may communicate to your employees accurate information about your bargaining proposals.)
Insist to impasse on a proposal concerning an illegal subject of bargaining, or include an illegal clause in a labor contract. Illegal subjects include, for example, a proposal to make the contract terminable at will or to give the employer the right to discharge employees for union activity.
Refuse to bargain over the effects of a change in the scope and direction of your enterprise, even though you need not bargain over the change itself because it concerns a matter at the core of your entrepreneurial control of your business. (Whether a proposed change is a nonbargainable “scope and direction” change or a mandatory subject of bargaining may present a difficult legal question. However, subcontracting that merely substitutes one group of workers for another to do the same work under similar conditions of employment is not a nonbargainable “scope and direction” change.)
Engage in bad-faith, surface, or piecemeal bargaining.

Remember, when a union represents a group of employees an employer cannot make unilateral changes to any area affecting employees when the subject is covered as a mandatory subject of bargaining unless the company and the union have reached an impasse or the union has waived the right to bargain.

Conclusion

Employers that negotiate collective bargaining agreements must walk a fine line to ensure that they advocate for their position but do not violate the law. Companies, and the counsel that represents them, can benefit from examining collective bargaining agreements for similar groups of employees and agreements that the local or international of the particular union representing the employee has put forth. You can view some of these agreements through Berkley’s labor contracts database and through this source on the Department of Labor website. At the bargaining table, employers should generally start with a position that they can make changes to and allows flexibility to make concessions to ensure that they bargain in good faith. It is often best to use outside counsel or at least someone that does not have the authority to make the final call on whether to accept a proposal because the negotiator can tell the union that they need to reach out to upper management to confirm whether a proposal is acceptable, which gives the employer the chance to better determine any financial effects of a proposal and to develop a counter proposal.

Collective bargaining is not easy. Companies that are not careful will have unfair labor practices filed against them. To avoid this, it is important that company negotiators or outside counsel are well prepared before any bargaining begins.

The information provided is my own and does not reflect the opinion of my firm or anyone else.