In 2023, the OFCCP demonstrated renewed vigor in audits, recovering $17.3 million from federal contractors for alleged hiring and compensation discrimination. It also was a year of churn, challenge, and change as the agency updated procedures for discrimination complaints, managed a massive FOIA request for EEO-1 reports and accompanying litigation, and rolled out a new scheduling letter requiring substantially more information from contractors at the outset of an audit. Listen to our podcast episode as we review the OFCCP’s activities in 2023 and provide a glimpse into what employers can expect in 2024.

EEOC has updated its EEO-1 data collection website to announce the data collection for the 2023 EEO-1 Component 1 reports will open April 30, 2024. The Agency has set June 4, 2024 as the deadline for reporting.

The notice also indicates the “online Filer Support Message Center (i.e., filer help desk) will also be available on Tuesday, April 30, 2024, to assist filers with any questions they may have regarding the 2023 collection.”

Further information about data specifics and other filing instructions are not yet available.

As a reminder, employers with 100 or more employees are required to file the annual EEO-1 Component 1 report. The filing requirement applies to federal contractors with 50 or more employees.

We will continue to monitor the situation and provide updates as information becomes available.

As previously reported, in December 2023, the U.S. Department of Labor, Office of Federal Contract Compliance Programs (OFCCP) was ordered to release the EEO-1 reports of federal contractors it had withheld from production in response to the Center for Investigative Reporting’s Freedom of Information Act (FOIA) request for the records.

The United States Attorneys’ office representing OFCCP filed a Notice of Appeal on February 15, 2024 seeking judicial review of the Order. The government is seeking a stay of the February 20, 2024 disclosure deadline pending the appeal.

We will continue to monitor and share any additional updates as they become available.

In recognition of the 15th anniversary of the Lilly Ledbetter Fair Pay Act, the Biden Administration has released a proposal that would prohibit federal contractors from using a job applicant’s prior salary history when setting pay and require federal contractors to post the expected salary range in its job postings. >>Learn more here.

In recognition of the 15th anniversary of the Lilly Ledbetter Fair Pay Act, the Biden administration released on Monday, January 29th, a Notice of Proposed Rule Making (NPRM) that would prohibit federal contractors from using job applicant’s prior salary history when setting pay and would require federal contractors to post the expected salary range in its job postings.

The proposed rule will:

  1. prohibit contractors and subcontractors from seeking and considering information about job applicants’ compensation history when making employment decisions about personnel working on or in connection with a government contract; and
  2. require contractors and subcontractors to disclose, in all advertisements for job openings involving work on or in connection with a government contract placed by or on behalf of the contractor or subcontractor, the compensation to be offered to the hired applicant, for any position to perform work on or in connection with the contract.

There is also a proposed mechanism for applicants to submit a complaint for contractor noncompliance, which will be investigated by the contracting agency and forwarded to OFCCP if the complaint alleges discrimination.

The proposed rule is open for public comment until April 1, 2024.

Our Affirmative Action, OFCCP and Government Contract Compliance Practice Group and Pay Equity Resource Group are partnering to digest the proposed rule and will release further details and insights.

Acting OFCCP Director Michelle Hodge announced the new Southwest and Rocky Mountain (SWARM) Regional Director selection in an “Acting Director’s Corner” message e-mailed to stakeholders on January 16, 2024.

The congratulatory announcement detailed now-Regional Director Sullivan’s more than 17-year tenure with OFCCP noting

[g]iven Ronny’s extensive OFCCP experience in the SWARM Region, he is equipped to effectively implement the mission of the agency and the Department and lead the Region to successfully identify and resolve high-impact systemic discrimination cases.

Regional Director Sullivan replaces Pacific Regional Director Jane Suhr who filled the role on an interim basis after Melissa Speer’s retirement in 2023.

We look forward to continuing to work with Ronny and congratulate him on his new role!

After significant delay, the day is finally here! The 2022 EEO-1 Component 1 data collection opened today, Tuesday, October 31, 2023.

The EEOC urges filing employers to begin the filing process as soon as possible to meet the Tuesday, December 5, 2023, deadline. The EEOC advises filers to consult the new 2022 EEO-1 Component 1 Instruction Booklet, prepared by the EEOC’s Office of Enterprise Data and Analytics (OEDA), to better understand their reporting requirements and changes to the filing process.

Notably, some of the changes include:

  • Federal contractors will now have to answer a series of questions regarding their federal contracts. Contractors may also need to include their Unique Entity Identification Number(s), which replaced the DUNS number, on their filings. The EEOC has published some FAQs related to UEIs and EEO-1 filings here.
  • Filers must use their updated 2022 NAICS codes, which can be retrieved here.
  • Employers must file establishment reports for all establishments, regardless of establishment size.
  • Any filer who went through a merger, acquisition, or spinoff since their last EEO-1 report filing must use the specific module on the Online Filing System to report these changes following the instructions provided in the instruction booklet and the acquisition, spinoff, or merger factsheet.

EEOC has also release two additional volumes of FAQs (Volumes 2 and 3) to correspond with the opening of the collection.

Stay tuned for additional thoughts and insights as we guide employers through the filing process.

Bridget Golden, law graduate, also contributed to this post.

As has been highly anticipated since the finalization of the Agency’s recently updated Scheduling Letter, OFCCP has released a new list of contractors selected for audit (FY2023 Release 2). The Agency has also published an explanation of the methodology used to select the contractors for review.

Per the Agency’s e-mail notification, it selected 1,000 contractors and subcontractors for audit. A quick review of the list reveals that there are 1,000 establishment/FAAPs identified, but several contractors have multiple reviews listed. Thus, it seems to be more accurate that there are 1,000 reviews scheduled.

Contractors who appear on the list should start preparing immediately as we expect OFCCP to start initiating audits imminently.

We are in the process of digesting the list and methodology and will back soon with more insights.

It’s official, the 2022 EEO-1 Component 1 data collection will open on Tuesday, October 31, 2023.  The deadline for employers to file their EEO-1 reports is Tuesday, December 5, 2023.

Employers have been waiting for the announcement as the deadline has been delayed twice. In the meantime, federal contractor have been working to prepare and file the annual VETS-4212 reports, which are due by September 30, 2023.

The update was posted to the EEO-1 reporting website. Further updates, will be posted on the general EEO-1 home page.

Upcoming dates to note:

  • The EEOC anticipates posting the updated 2022 EEO-1 Component 1 Instruction Booklet for filers on Wednesday, September 6, 2023.
  • The EEOC anticipates posting the updated 2022 EEO-1 Component 1 Data File Upload Specifications for filers on Wednesday, September 13, 2023.

We will continue to monitor and report additional updates so stay tuned.

OFCCP has announced finalization of the Agency’s “updated” Supply and Service Scheduling Letter and Itemized Listing. As a reminder, OFCCP initially proposed significant changes to the letter, which initiates a compliance review for scheduled contractors, in 2022. Following significant public comment, OFCCP published a slightly revised proposed letter earlier this year.

Notably, the Itemized Listing released today still includes a requirement to submit:

Item 21. Identify and provide information and documentation of policies, practices, or systems used to recruit, screen, and hire, including the use of artificial intelligence, algorithms, automated systems or other technology-based selection procedures.

Item 22. Documentation that the contractor has satisfied its obligation to evaluate its “compensation system(s) to determine whether there are gender-, race-, or ethnicity-based disparities,” as part of the contractor’s “in-depth analyses of its total employment process” required by 41 CFR 60-2.17(b)(3). Include documentation that demonstrates at least the following:

  1. When the compensation analysis was completed;
  2. The number of employees the compensation analysis included and the number and categories of employees the compensation analysis excluded;
  3. Which forms of compensation were analyzed and, where applicable, how the different forms of compensation were separated or combined for analysis (e.g., base pay alone, base pay combined with bonuses, etc.);
  4. That compensation was analyzed by gender, race, and ethnicity;

Interestingly, the notice indicates the updated letter applies to any “supply and service compliance evaluations scheduled on or after August 24, 2023, the day before the Agency announced the release of the updated letter.

To the extent the updated scheduling letter asks contractors to submit information not previously requested, the immediate implementation of the letter gives contractors little time to comply. This, coupled with the Agency’s directive regarding limited approval of extension requests seemingly puts contractors between a rock and a hard place. Hopefully, the Agency recognizes this and will deem timing of the release of the updated audit letter an “extraordinary” circumstance justifying additional time to respond.

The Agency directs contractors to its OFCCP’s Frequently Asked Questions for further guidance and assistance with questions on the new letter.

Stay tuned for additional thoughts and insights as we continue to evaluate and monitor this development.