Legal Alert – AAP Verification for Government Contractors

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP)  posted on its website a new page entitled “Affirmative Action Plan Verification Interface” and indicated that it was “Coming Soon.”

This page explains that the “Affirmative Action Plan Verification Interface (AAVI) is a secure web-based interface created to improve communication and the transfer of Affirmative Action Plan data, between Federal Contractors and the Office of Federal Contract Compliance Programs.” As such, it appears all covered federal contractors should now be moving to ensure they are in compliance with their AAP requirements.

The OFCCP wants to implement a verification program because it believes that tens of thousands of covered federal contractors have not been fulfilling their duty to develop and maintain AAP’s annually. “Close to 85 percent of contractor establishments did not submit a written AAP within 30 days of receiving a scheduling letter,” according to OFCCP Directive 2018-07 (citing U.S. Gov’t Accountability Off., GAO-16-750, 18 (Sept. 22, 2016)).

PA Repeals Law to Increase Salary Exemption Threshold

Pennsylvania repealed an administrative rule that would have substantially increased the salary threshold needed to qualify as an exempt executive, administrative and professional (EAP) employee under the Pennsylvania Minimum Wage Act (PMWA).

This provision takes effect September 7, 2021, at which time PA will be without any regulatory definition of what it means to be an exempt EAP employee. However, the likelihood is that PA will not follow the FLSA exemption rule.

MA COVID Paid Sick Leave Notice and Form
On July 8, 2021, the Executive Office for Administration and Finance (“EOAF”) made available a sample form for employees to request COVID-19 Sick Leave under the COVID-19 Temporary Emergency Paid Sick Leave Act (the “Act”).  The Act, which went into effect on May 28, permits employees with a primary place of employment in Massachusetts to take up to 40 hours of COVID-19 Sick Leave if they are unable to work for specified COVID-19-related reasons.  In order for employers to receive reimbursements from MA for the costs of providing COVID-19 Sick Leave, employers must require their employees to submit written requests that include certain information.

Employers were initially advised to create their own request forms, but now the information that must be collected is contained in the sample form that is available here.  As a reminder, employers must provide notice of the Act to eligible employees.  Where the employer maintains a physical workspace, the notice requirement may be satisfied by posting a notice in a conspicuous location accessible to employees.  In cases where the employer does not maintain a physical workplace, or an employee teleworks or performs work through a web-based platform, notification must be made via electronic communication or through a conspicuous posting in the web-based platform.  The EOAF has published the required notice in poster-form and in a form to be sent via electronic communication.

Additionally, the EOAF has published instructions for employers to seek reimbursement for sick leave payments made to employees. Employers need to log in to their MassTaxConnect account and follow the steps that can be found here.

PPP Loan Forgiveness Over 2M

The SBA announced it will no longer require “loan necessity” information from borrowers with Paycheck Protection Program loans of $2 million or more. The changes are effective immediately, but SBA is expected to issue a FAQ with more details.

Non-Competes at the Federal Level

President Joe Biden has issued an Executive Order that encourages the Federal Trade Commission to “curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”

While states typically regulate non-competes, the FTC has jurisdiction of unfair trade practices.

Written by: Gordon M. Berger

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