Management Update
Volume 2, Issue 3
March 2013

OFCCP Issues Criminal Records Directive, Cautions Contractors on Blanket Exclusions

The Labor Department's Office of Federal Contract Compliance Programs has issued a new directive warning federal contractors and subcontractors to carefully consider their nondiscrimination obligations before adopting hiring policies and practices that exclude applicants from employment based on their criminal history records.


OFCCP Director Patricia Shiu signed Directive 306 on January 29th. The directive discusses the differences in incarceration rates among racial and ethnic groups, observing that blanket hiring exclusions against individuals with criminal records may have a stronger impact on certain protected groups.


This directive follows the April 2012 guidance from the Equal Employment Opportunity Commission which highlighted several best practices for federal contractors to avoid liability for disparate impact and disparate treatment discrimination. 

The full directive can be found here.

HHS Releases Essential Health Benefits Final Rule

The U.S. Department of Health & Human Services (HHS) released their final rule outlining the specific essential health benefits that insurers are required to cover regardless of whether they are selling plans through health insurance exchanges.


The most noteworthy change to the rule is the requirement for coverage to include mental-health and substance-abuse services. By requiring insurers to offer a core package of standardized benefits in the individual and small business markets, the rule promotes consistency and ensures consumers receive benefits "equal in scope" to those offered within a typical employer-based plan, according to an HHS fact sheet


Under the statute, essential health benefits must include items and services within the following 10 categories:

  1. Ambulatory patient services
  2. Emergency services
  3. Hospitalization
  4. Maternity and newborn care
  5. Mental health and substance-use-disorder services, including behavioral health treatment
  6. Prescription drugs
  7. Rehabilitative and habilitative services and devices
  8. Laboratory services
  9. Preventive and wellness services and chronic disease management
  10. Pediatric services, including oral and vision care

HHS repeated their plan to grant states the authority to determine their own essential health benefits. States have the option to select a benchmark plan based on existing options in their own markets that all insurers must also provide. To date, 26 states have selected a benchmark plan; the remaining states' benchmark plans will be the largest small business plan, HHS said.


View the Fact Sheet: 

View the rule:


EEOC Statistics Released for Fiscal Year 2012 - Retaliation and Disability Claims Continue to Rise

The U.S. Equal Employment Opportunity Commission ("EEOC") has issued its enforcement and litigation statistics for fiscal year 2012 (which ended on September 30, 2012). The EEOC's FY2012 and historical stats can be found on the EEOC's website at  


The tables supplied by the EEOC enable employers to review a wide array of data, including breakdowns of:

  • The number and the percentage of charges alleging each of eleven categories of discrimination, including race, sex, national origin, religion, color, retaliation (all statutes), retaliation (Title VII only), age, disability, Equal Pay Act, and GINA;
  • The types of discriminatory actions alleged under each statute - e.g., discharge, constructive discharge, harassment, discipline, etc.;
  • The impairments serving as the basis for claims filed under the Americans with Disabilities Act; and
  • The EEOC enforcement lawsuits filed and resolved.

Here are some highlights from these tables:

  • The overall number of charges filed has remained about the same the last three fiscal years. The charge totals were 99,922 (FY2010); 99,947 (FY2011); and 99,412 (FY2012), respectively. Despite a slight dip in the number of charges, in FY2012 the EEOC, through its administrative process, obtained the most amount of money from employers in its history - $365.4 million.
  • Retaliation claims continue to increase and, for the third consecutive year, retaliation claims were the most frequently asserted type of claim. In FY2012, 38.1% of all charges included a retaliation claim and, for ten consecutive years, the percentage of charges filed including a retaliation claim has increased from the prior fiscal year.
  • After retaliation, the most frequently filed charges in FY2012 were race discrimination (33.7% of charges) and sex discrimination (30.5% of charges).
  • Disability claims continue to rise. For four consecutive years, the percentage of charges filed including a disability claim has risen from the prior fiscal year. In FY2012, 26.5% of all charges included a disability claim.
  • In FY2012, the EEOC filed 122 new merit lawsuits and resolved 254 merit lawsuits for a total monetary recovery of $44.2 million.

The information supplied by the EEOC should serve as a reminder to employers of the importance of (a) implementing appropriate policies and procedures to prevent and address discrimination, harassment, and retaliation; (b) training management on such policies and procedures; and (c) ensuring that employee complaints are addressed in a timely and effective fashion.

Reminder: New Forms Required for Background Checks in 2013

Employers that conduct background checks on employees or job applicants now must use updated notices required by the federal Fair Credit Reporting Act ("FCRA"). Despite its name, the FCRA reaches far beyond credit checks and applies to most kinds of third-party background checks, including criminal background, motor vehicle records, and educational records checks, among others. Under the FCRA, employers are required to provide disclosures and obtain written authorizations from any job applicant or employee prior to obtaining a background check report. Employers also are required to notify subjects prior to taking an adverse action (e.g., denying or terminating employment) against them based, in whole or in part, on information contained in a report.


One particular requirement of the FCRA is that employers provide a copy of the "A Summary of Your Rights Under the Fair Credit Reporting Act" form to applicants/employees during various steps of the background screening process, such as when requesting the authorization to perform a background check, when issuing a pre-adverse action notice, and when sending an adverse action notice. The Summary of Your Rights form has been revised for the primary purpose of reflecting that the Consumer Financial Protection Bureau has replaced the Federal Trade Commission as the primary entity overseeing the FCRA regulations. The new Summary of Your Rights form must be used beginning on January 1, 2013 and is available here.


Employers are reminded that, in addition to the legal requirements imposed by the FCRA, numerous other federal and state laws may regulate both employers' ability to conduct background checks on employees/applicants and the procedures used to conduct such checks. All such laws should be considered by employers when determining whether to conduct background checks and the forms and procedures to be used when conducting such checks.

Breazeale, Sachse & Wilson, L.L.P. Labor and Employment Attorneys
John T. Andrishok


Murphy J. Foster, III


Leo C. Hamilton


Joseph R. Hugg



Rachael Jeanfreau


Steven B. Loeb


Eve B. Masinter


Yvonne R. Olinde


E. Fredrick Preis, Jr.


Jacob E. Roussel


Melissa M. Shirley


Jennifer D. Sims

Jerry L. Stovall





This electronic newsletter is provided to clients and friends of Breazeale, Sachse & Wilson, L.L.P. The information described is general in nature, and may not apply to your specific situation. Legal advice should be sought before taking action based on the information discussed. Applicable State Bar or Attorney Regulations May Require This Be Labeled as "Advertising."Anchor1