Government Contractors Pay 56 PTO Hours 2016-09-30T10:59:31-06:00

Posted on September 30, 2016

The U.S. Department of Labor has issued its final rule on paid leave for employees working on or in connection with government contracts. Contractors will be required to allow employees to accrue at least 1 hour of paid leave for each 30 hours worked on or in connection with government contracts. Only contractors who use the accrual method may cap accrual at 56 hours.

Employees may use the paid leave for the employee’s own illness, injury, or medical condition; visits to medical providers, care for child, spouse, parent, domestic partner, or relation; or to obtain counseling, relocate, or obtain assistance with regard to domestic violence, sex assault, or stalking. Existing policies that provide at least 56 hours of paid leave for these reasons may satisfy the rule. The employer may request certification of the need for the leave, but, in most cases, a statement from the employee is all that is required.

Interference and retaliation are banned, and the Wage & Hour Division will investigate complaints. Failure to comply may result in debarment from government contracts. Links to additional information are available here. https://www.dol.gov/newsroom/releases/whd/whd20160929.

Affirmative Action, Part II 2013-07-30T16:51:15-06:00

Posted on July 30, 2013

By Bill Wright

Let’s break down OFCCP v. Florida Hospital of Orlando, ARB Case No. 11-011 (July 22, 2013). TRICARE is a program of the Department of Defense. Its job is to make sure military personnel and their families have access to healthcare. TRICARE contracts with “managed care support” systems (e.g. Humana Military Healthcare Services) to establish networks of healthcare providers (e.g. hospitals) who, in turn, agree to provide medical services. In the middle of a fight over the OFCCP’s claimed jurisdiction to audit the Florida Hospital of Orlando – and faced with the fear that government affirmative action requirements would drive up the cost of health care for military personnel – Congress enacted the NDAA in 2011. The NDAA excluded TRICARE contracts that “establish, manage, or maintain a network of providers” from the universe of contracts for the performance of healthcare services or supplies. This provision seemed to mean that hospitals contracting with TRICARE’s managed care support systems could not be considered to have a government contract to provide healthcare services and were free from affirmative action requirements and OFCCP review.

Recently, the ARB ruled otherwise. Revisiting an earlier decision in the same dispute, the ARB concluded that, although the NDAA stopped the OFCCP from asserting that the hospitals had a government contract to provide healthcare services, the NDAA left open another route for the OFCCP to get to the hospital. The hospital had sub-contracted with the managed care support system (Humana) to provide a service that was necessary to Humana’s contract with TRICARE. A sub-contract to provide nonpersonal services that are necessary for the performance of a government contract is a basis for OFCCP jurisdiction even if the NDAA stops us from calling it a government contract to provide healthcare services. To read the first part of the series, please click here.

Don’t let yourself think this is over now. Two members of the ARB dissented from the ruling and more appeals seem likely.

Affirmative Action Comes to a Hospital Near You 2013-07-30T16:47:25-06:00

Posted on July 30, 2013

By Bill Wright

Does the OFCCP have jurisdiction over hospitals that contract to provide medical services to members of the military? We hoped we were done with this issue when the Congress enacted the National Defense Authorization Act (“NDAA”) in December 2011. The Department of Labor Administrative Review Board (“ARB”) however has decided that the NDAA did not extinguish the issue. OFCCP v. Florida Hospital of Orlando, ARB Case No. 11-011 (July 22, 2013).

Six lawyers from the Department of Labor, 2 lawyers for Florida Hospital of Orlando, and 18 lawyers for various friends of the court have created confusion over this issue for almost 6 years, but the current holding of the ARB is this: a hospital that sub-contracts with a network system to provide services to military personnel has a government sub-contract and so might be subject to OFCCP oversight and federal affirmative action requirements. The ARB left open the issue of whether providing military personnel with healthcare might be an excluded government assistance program. For more information, follow the link here.

Posted on September 30, 2016

Posted on July 30, 2013

Posted on July 30, 2013

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