More than three years after the Office of Federal Contract Compliance Programs (OFCCP) first announced its intent to issue a new Scheduling Letter and Itemized Listing, the Agency finally has obtained approval to do so from the White House Office of Management and Budget (OMB). The OFCCP’s Scheduling Letter provides a contractor with notice of its selection for a compliance evaluation (audit), and the Itemized Listing constitutes OFCCP’s standard initial request for submission of the contractor’s Affirmative Action Plan and supporting personnel activity and compensation data. OFCCP announced the OMB approval in a September 30, 2014 Notice, and published the final versions of the Scheduling Letter and Itemized Listing on October 1, 2014.
The case of Ryan v. Kellogg Partners Institutional Services, presents a scenario familiar to many employers – a former employee claims that he is entitled to bonus compensation based upon oral assurances he was given by senior management, while his employer responds that the employee has no right to any bonus because bonuses are discretionary. Despite upholding the employee’s claim for a bonus, the New York Court of Appeals in Ryan actually reaffirmed the well-established New York principle that employees have no legal right to unvested, discretionary bonuses. Significantly, the Court of Appeals confirmed that properly drafted discretionary bonus policies could vitiate a bonus claim, but that the at-will statements in the employment application and handbook that Kellogg was relying upon simply did not meet the standard. The Ryan Court also restated its previous holding in Truelove v. Northeast Capital & Advisory, explaining that discretionary bonuses linked to an employer’s financial success do not constitute “wages” under the New York Labor Law, and that a bonus does not vest and become earned until the conditions of the employer’s bonus plan are met, which may include the requirement that the employee be employed by the employer at the time the bonus is paid.