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Deadline looms for expanded EEO-1 filing

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For US employers with 100 or more employees, extensive new information relating to their prior EEO-1 filings must be submitted by September 30, 2019.  Specifically, in addition to categorizing employees by race/ethnicity, gender and job type, employers are now required to assemble and submit, with respect to each subcategory, aggregated employee data regarding compensation and annualized hours worked.  Assembling the required data may be much more complicated than many employers are expecting, so it is important to begin planning now.

What is the EEO-1?

For many years, the US Equal Employment Opportunity Commission (EEOC) has required employers with 100+ employees to complete and file an EEO-1 form annually.  The EEO-1 was essentially a relatively simple demographic snapshot of the employer’s workforce, capturing the number of employees in each of several job categories by gender and by race/ethnicity.  The Office of Federal Contract Compliance Programs (OFCCP) also has long required the EEO-1 for federal government contractors with at least 50 employees.

What is different this year?

Late in the Obama administration, the EEOC and OFCCP issued rules requiring employers to start providing additional information regarding compensation groupings and hours worked for each of the existing job, gender and race categories.  Before these rules were fully implemented, however, the Trump administration’s Office of Management and Budget (OMB) halted the rules, asserting that the revisions were overly burdensome and created privacy concerns.  Private organizations, in turn, challenged the OMB action, and in March 2019, a federal court ordered the EEOC to move forward with collecting the new compensation and hours data (collectively referred to as “Component 2” data).  Following further court hearings, the EEOC established September 30, 2019, as the new deadline for submission of the data.

Who needs to worry about this?

Only employers with 100 or more employees need to submit the new Component 2 data.  (Most federal contractors with 50 to 99 employees still must submit the Component 1 data annually, but need not submit the Component 2 data.)

The 100-employee benchmark is not based on a particular establishment, but on the employer’s workforce as a whole.  All full-time and part-time employees must be counted for purposes of determining whether the employer meets the 100-employee threshold.  The 100-employee benchmark is determined by the number of employees as of the years 2017 and 2018, not the current number of employee.

Continue reading at:  Dentons

OFCCP releases its new compliance assistance guides

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On August 2, 2019, the Office of Federal Contract Compliance Programs announced the release of its new compliance assistance guides.  Among the new guides are:

  • OFCCP At A Glance, which introduces and provides an overview of OFCCP, “its mission, the equal employment opportunity laws it enforces, an overview of federal contractor obligations, and workers’ rights.”
  • What Federal Contractors Can Expect, which “provides general expectations that guide interactions between contractors and OFCCP.”
  • Construction Technical Assistance Guide, which “is being updated and is coming soon,” provides a general overview of construction contractors’ obligations.
  • Applicant Tracking Guide, which “provides the definitions for Internet and traditional applicants, identifies applicant records that contractors must keep, and provides other key terms to know.”
  • And more…

Continue reading at:  Ogletree Deakins

OFCCP’s new voluntary program exempts ‘high-performing’ contractors from compliance evaluations

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On February 13, the Office of Federal Contract Compliance Programs (OFCCP) issued Directive 2019-04 which establishes a framework for the Voluntary Enterprise-wide Review Program (VERP). Under this new program, OFCCP will work with “high-performing” contractors to achieve sustained, corporate-wide compliance with the laws and regulations OFCCP administers and enforces requiring nondiscrimination and equal employment opportunity.

Notably, participating contractors are removed from the pool of contractors scheduled for compliance evaluations.

Eligibility for Participation

Contractors can apply to the program beginning in fiscal year 2020. As part of the application, OFCCP will conduct compliance reviews of the contractor’s headquarters location as well as a sample or subset of establishments.

Contractors must meet established criteria verifying basic compliance with OFCCP’s requirements and must further demonstrate their commitment to and application of successful equal employment opportunity programs on a corporate-wide basis.

Keep reading this article at: https://governmentcontractsnavigator.com/2019/02/20/ofccps-new-voluntary-program-exempts-high-performing-contractors-from-compliance-evaluations

OFCCP releases three new directives for federal contractors

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The Office of Federal Contractor Compliance Programs’ fiscal year 2019 directives rescind the Active Case Enforcement compliance review procedures, create early resolution procedures, and enhance compliance assistance through the Help Desk and opinion letters.

The U.S. Department of Labor’s Office of Federal Contractor Compliance Programs (OFCCP) has issued three new directives, building on this administration’s nine directives issued in fiscal year 2018. The directives, effective immediately, are all geared toward greater transparency, compliance assistance, and enhanced guidance for federal contractors, while maximizing OFCCP’s limited resources.

Compliance Review Procedures, Directive 2019-01, rescinds Directive 2011-01 and provides that reviews will be conducted in accordance with OFCCP’s Federal Contract Compliance Manual (FCCM). The rescinded 2011 directive set out Active Case Enforcement (ACE) compliance review procedures. OFCCP states that the agency has embedded valuable components of ACE into its standard operating policies and procedures and updated the FCCM in August 2014 to incorporate the full desk audit procedures and closure letter templates. OFCCP concludes that in addition to other agency guidance, such as recent directives on transparency, compensation analysis, use of predetermination notices, and focused reviews, there is no longer a need for the ACE directive to exist as a freestanding guidance document.

Early Resolution Procedures, Directive 2019-02, “will help contractors and OFCCP achieve their mutual goal of equal employment opportunity in federal contracting and reduce the length of compliance evaluations through early and efficient resolutions.” The new procedures apply to all compliance evaluations in which a predetermination notice, notice of violation, or show cause notice has not been issued as of November 30, 2018. The agency’s intent is that the procedures will allow OFCCP and contractors with multiple establishments to cooperatively develop corporatewide compliance. Significantly, depending on the type of violation, if the contractor and OFCCP agree to corporatewide compliance and other terms, OFCCP will not schedule that establishment or all establishments covered by the agreement for a new compliance evaluation for the five-year period, concurrent with monitoring.

Opinion Letters and Help Desk, Directive 2019-03, announces OFCCP’s intention to start issuing opinion letters to parallel the use of this type of guidance tool by other Department of Labor agencies. The directive also announces the agency’s desire to “enhance its Help Desk by making certain Help Desk [inquiries] and responses dynamically available and searchable as a self-service option on OFCCP’s website.” OFCCP staff are directed to implement these enhancements and develop a process for issuing opinion letters.

What do these new directives mean for federal contractors?

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=761632

What do contractors do now? Interpreting OFCCP’s compensation discrimination directive

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For the third time in the last 10 years, the Office of Federal Contract Compliance Programs (OFCCP) has revamped its guidance on compensation investigation and enforcement by issuing Directive 2018-05 and publishing frequently asked questions (FAQs) on the new directive.

This internal agency directive, while not having the force of law that a court holding or regulation would have, does provide federal contractors with some information on how OFCCP may evaluate their compensation in OFCCP audits. This directive will apply to compliance evaluations scheduled on or after August 24, 2018, and may be used by OFCCP in earlier, open cases to the extent it doesn’t conflict with prior guidance or procedure.

On Which Pay Cases Will OFCCP Focus?

In the directive, OFCCP offers general guidance on the legal theories under which it will pursue compensation discrimination and how those align with program priorities. Stating that compensation disparities can be created through inequities in monetary compensation, inequitable training or advancement opportunities, and assignment/placement differences, OFCCP reiterated its reliance on statistical analyses reflecting a statistically significant difference of two standard deviations or more as well as non-statistical (or anecdotal) evidence of discrimination. (Anecdotal evidence could be testimony regarding biased statements or remarks, examples of differential treatment, testimony about individuals who were given misleading or contradictory information about employment or compensation practices, etc.)

Signaling a potential shift in agency practice, however, the directive notes that “OFCCP will be less likely to pursue a matter where the statistical data are not corroborated by non-statistical evidence of discrimination unless the statistical evidence is exceptionally strong.” (OFCCP does not define the phrase “exceptionally strong.”) Moreover, a footnote explains that OFCCP may pursue a case without anecdotal evidence if the agency detects patterns of discrimination over several years or at multiple contractor establishments. Finally, OFCCP may conduct comparative analyses of small groups of similarly-situated employees to determine if pay differences due to discrimination exist.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=733422

Something old, something new: Contractor recognition and AAP verification on the horizon at OFCCP

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On August 24, 2018, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued three new directives, 2018-05, 2018-06, and 2018-07.   While directive 2018-05 has received most of the attention because it focuses on reviewing a contractor’s compensation practices during a compliance evaluation, directives 2018-06 and 2018-07 should not go unnoticed.

During OFCCP Town Hall Meetings earlier this year, contractors suggested a return to recognition programs such as the Exemplary Voluntary Efforts (EVE) Award or the Secretary of Labor’s Opportunity Award. Both programs were instituted in the late 1980s to recognize federal contractors for exemplary efforts in advancing fair employment practices and programs. Both programs were ultimately rescinded in 2013.

Recognizing that awards and recognition programs may incentivize contractor compliance, the OFCCP issued directive 2018-06 titled, “Contractor Recognition Program.”  While short on details, the directive describes several tools and resources under development:

  • A contractor recognition program that highlights implementable best or model contractor practices;
  • A contractor mentoring program that uses contractors to help their peers improve compliance; and
  • Other initiatives that provide opportunities for contractors to collaborate or provide feedback to OFCCP on its compliance assistance efforts.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=732786

OFCCP launches new resource for contractors

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The Office of Federal Contract Compliance Programs (“OFCCP”) has announced that it has launched a new resource for federal government contractors called the “Contracting Officer Corner.”

OFCCP touts the new website as constituting “a central repository of resources, including a new pre-award process guide and downloadable workplace posters, for both federal agency contracting officials and federal contractors.”

The aim of the website is to “assist and ensur[e] that federal contractors meet their equal employment opportunity obligations,” and to “enhance compliance assistance.”

Keep reading this article at: https://www.natlawreview.com/article/ofccp-launches-new-resource-contractors

OFCCP promises clear guidance and consistency, laying out a program of carrots and sticks

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In his first two speeches after taking over as Acting Director of the Office of Federal Contract Compliance Programs (OFCCP), Craig Leen emphasized a commitment to the rule of law, promised to provide contractors with clear guidance and transparent enforcement processes, offered incentives for voluntary compliance, and outlined plans to identify and audit government contractors that are ignoring their obligations.

His speeches came at the beginning and end of a four-day Industry Liaison Group National Conference held in Anaheim, California that was attended by HR compliance professionals and officials from the Department of Labor (DOL), OFCCP, and Equal Employment Opportunity Commission (EEOC). Although the conference included presentations from industry experts, the highlight for many was the opportunity to hear directly from the OFCCP, including its new acting director.

Mr. Leen opened the conference with a keynote address focusing on his goals for the OFCCP, including transparency, certainty, efficiency, and recognition. Mr. Leen highlighted OFCCP’s recent Directive 2018-01, which requires a Predetermination Notice (PDN) in all cases with preliminary individual and systemic discrimination findings. According to Mr. Leen, contractors can expect meaningful, good-faith conciliation.

Additionally, he noted that the OFCCP will no longer engage in fishing expeditions with information requests during a compliance evaluation. Instead, OFCCP compliance officers must have specific reasons for a request and be able to explain the need for the information upon request.

Importantly, in the information request context, Mr. Leen explicitly acknowledged that contractors will be given reasonable time to respond and that the age of “false deadlines” to show authority was over.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=727378

I think my company is a federal contractor and has regulatory obligations, but where can I look to search for that information?

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Doing business with the United States federal government can be very lucrative, but it comes with a price.

That price arrives in the form of reporting obligations, recordkeeping, outreach, and much more.

Failure to comply with all applicable regulatory requirements can also have steep consequences, so it is very important for federal contractors to ensure they are doing all that is required.

Companies are sometimes unaware that they are a covered contractor or subcontractor and, thus, find themselves unprepared for an Office of Federal Contract Compliance Programs (OFCCP) compliance review. In an effort to better prepare for these types of situations, this article is intended to provide some practical information and resources about federal contractor thresholds and where to look for federal contracts.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=598152

A message to employers who aren’t in a current OFCCP audit

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If your company was one of the 375 government contractors or subcontractors who recently received a Scheduling Letter from the Office of Federal Contractor Compliance Programs (OFCCP), you’re probably not reading this post. You’re too busy scrambling to pull together responses to the 22 items in the Scheduling Letter and Itemized Listing and making sure your affirmative action plans are up to date.

But if you didn’t receive a scheduling order … read on.

Now is a perfect time to check up on your company’s compliance with the various requirements imposed on federal contractors and subcontractors, so that you’re ready when you do receive notice of an OFCCP audit. Every contractor knows that it must maintain affirmative action plans for minorities and women and for the disabled and protected veterans and that it must file EEO-1 and VETS-4212 forms once a year. But are you confident that you’re complying with all the other OFCCP obligations on federal contractors? Here is a quick checklist you can use to make sure your company is in compliance.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=586128

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