During the on-site review, COs gather information and conduct interviews to determine whether the contractor discriminates on the basis of sex in the provision of leave and fringe benefits in violation of OFCCP’s regulations at 41 CFR Part 60-20. COs should also be familiar with the FMLA, discussed below, as well as understand how the application of policies or the absence of policies may result in discrimination and harassment.
a. FMLA. The FMLA was enacted in 1993.144 In part, the purpose of FMLA is to address the needs of families and caregivers as affected by the demands of the workplace, specifically addressing leave issues. OFCCP and the Department’s WHD, which enforces FMLA, entered into an MOU.145 Under this MOU, OFCCP incorporates an FMLA inspection into its compliance evaluation and complaint investigation procedures, as discussed below.
b. Family Leave and Pregnancy and Disability Leave. The CO will examine the contractor’s policy regarding leave in light of the prohibition of discrimination based on sex, including pregnancy and FMLA.
Family Leave Required under the FMLA. During the course of a routine compliance evaluation or complaint investigation, the CO will determine whether the FMLA notice is posted and whether written guidance about the provisions of FMLA is provided in accordance with 29 CFR 825.300. Incidents of suspected noncompliance with these provisions are referred to WHD. In addition, the CO may examine the application or use of these policies by the contractor for any adverse treatment of, or adverse impact on, any specific group protected by OFCCP’s legal authorities. This is distinct from enforcing violations of family leave requirements.
The FMLA requires employers of 50 or more employees to provide up to 12 weeks of unpaid, job-protected leave for qualified workers for a worker’s pregnancy or own serious health condition, or when a worker becomes a new parent. Covered employers are also required to provide FMLA leave to employees caring for a covered family member with a serious health condition (e.g., a mother caring for a child with cancer). Additionally, various states have their own family and medical leave laws that may provide additional leave or additional coverage.
- Pregnancy Disability Leave. The CO must examine whether the contractor has a sick leave or disability leave policy (written or unwritten), and leave for conditions associated with childbirth.146 The CO must also examine whether the contractor’s leave policy, or lack thereof, has an adverse impact on employees of one sex and is not justified by business necessity. These requirements apply regardless of whether the contractor is a covered contractor under the FMLA or whether the employee qualifies for FMLA leave.
c. Fringe Benefits. OFCCP’s regulations state that it is unlawful for a contractor to discriminate on the basis of sex with regard to fringe benefits. The term “fringe benefits” is defined in 41 CFR 60-20.6 as including medical, hospital, accident, life insurance and retirement benefits; profit-sharing and bonus plans; leave; and other terms, conditions and privileges of employment. The greater cost of providing a fringe benefit to members of one sex is not a defense to a contractor’s failure to provide benefits equally to members of both sexes. COs must, therefore, obtain information to determine whether a contractor is providing equal employee benefits for men and women, regardless of cost.
144. Family and Medical Leave Act, Pub. L. 103-3 (29 U.S.C. chapter 28).
145. The MOU between OFCCP and WHD was signed in September 1993.
146. “Leave” as used here includes but is not limited to eligibility for leave, duration of leave, accrual of seniority and reinstatement rights.