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OFCCP Releases New Guidance for Educational Institutions

After devoting its first opinion letter to addressing aspects of its jurisdiction over higher education institutions, OFCCP recently provided additional guidance about the AAP obligations of educational institutions.  In addition, the agency pledged to publish a technical assistance guide to provide further assistance to government contractors in the higher education field.

First, OFCCP released a new Directive 2019-05 addressing the employment status of student employees, such as graduate research or teaching assistants.  The employment status of these types of workers has been a hotly litigated issue under Title VII, the FLSA, and other employment statutes.  In its directive, OFCCP announced that it would exercise its enforcement discretion to permit educational institutions to exclude student employees from their AAP job groups and personnel activity data submissions.  OFCCP noted that the available data for these employees is typically not robust enough to support reliable statistical analyses and distracts OFCCP and contractors from focusing on their resources and attention “on individuals whose primary relationship with the educational institution is work-related.”  This exclusion is a win for contractors as they are relieved from tracking personnel activity for employees whose employment is typically short-tenured with high year to year (or semester to semester) turnover.

OFCCP also released a new FAQ regarding the definition of “establishment” in the context of campus-like settings in which employees work in multiple, closely-situated buildings.  The FAQ addresses whether the entire campus should be combined into one AAP or whether separate AAPs should be maintained for different locations on the campus.  Unfortunately, the FAQ provides little definitive guidance and instead emphasizes that the AAP organization of a campus-type facility is a fact-specific inquiry.  Generally, contractors maintaining campus facilities must look to the level of interaction and interdependence of the employees and units in the various buildings on the campus.

With this flurry of guidance, OFCCP appears to be following through on Director Leen’s pledge to focus on compliance assistance. 

© Polsinelli PC, Polsinelli LLP in California


About this Author

Conne Bertram Government Contract Lawyer Polsinelli Law Firm

Connie focuses her practice on whistleblower, trade secrets, government contractors and employee mobility counseling and litigation. She frequently conducts confidential internal investigations involving executive-level employees, including alleged fraud, theft or misuse of company data, trade secrets, sexual harassment and code of conduct violations. She routinely counsels, investigates and litigates restrictive covenant and trade secrets disputes between employers and former employees.

Connie has defended complex whistleblower, trade secrets and restrictive...

Jack Blum Polsinelli Employment Attorney

Jack Blum is an associate in the firm’s Employment Disputes, Litigation, and Arbitration practice, where he represents employers in connection with a wide range of employment law issues. Jack has extensive experience in defending employers against claims by their employees in federal and state courts, as well as before government agencies like the EEOC, Department of Labor, and state human rights commissions. Jack aggressively defends his client’s personnel practices and decisions while not losing sight of their underlying business goals and objectives. Jack represents clients in all aspects of complex employment litigation and has advised and defended employer clients regarding a wide variety of employee claims, including:

• Employment discrimination, harassment, and retaliation
• Wage and hour
• Employment contract disputes
• Independent contractor/employee misclassification audits 
• Tort claims arising out of the employment relationship

Jack also has extensive experience representing parties in litigation arising from employee mobility, including claims involving non-competition, non-solicitation, and confidentiality agreements as well as the misappropriation of trade secrets. Significantly, Jack has experience in both prosecuting and defending these claims and is, therefore, able to offer clients a well-rounded assessment of their options and courses of action. Jack also has experience redressing employee data breaches under the Computer Fraud and Abuse Act.

Jack also has a background in employment counseling, where he has worked closely with in-house counsel, human resources personnel, and business executives to craft personnel policies that meet the client’s business requirements while complying with applicable laws. Jack has particular experience in assisting clients with issues relating to employee/independent contractor classifications, and regularly advises clients regarding the defensibility of classifications, drafts independent contractor agreements to provide the strongest possible arguments in support of the classification, and defends misclassification claims asserted by employees and government agencies. Jack also walks clients through sensitive personnel actions to reduce the potential for litigation or at least best position the client in the event that litigation is inevitable. Jack draws heavily upon this counseling experience in representing clients in litigation.

During law school, Jack served as a legal intern in the U.S. Securities and Exchange Commission’s Office of the Inspector General where he contributed to several high-profile internal investigations, and also interned with the Maryland Attorney General’s Office.