Breaking News: Portions of Fair Pay and Safe Workplaces Executive Order Blocked

In a much anticipated, last minute ruling, a U.S. District Court Judge has ordered a nationwide preliminary injunction blocking the labor law violation disclosure requirements and restriction on use of arbitration agreements portions of the Fair Pay and Safe Workplaces Final Rule and Guidance (“Final Rule”), which were set to take effect today.

The pay transparency requirement, effective January 1, 2017 for covered bids, remains intact.

As this is only a preliminary injunction next steps will likely involve an appeal by the government of the order as well as briefing and a full hearing on the request for a permanent injunction.

We will bring you further updates as they develop.


Complimentary Webinar: What should you do now to prepare for EEO-1 Annual Pay Data Reporting

EEO-1 Annual Pay Data Reporting Has Arrived: What Should Employers Do Now? 

As we’ve been reporting, the new EEO-1 reporting rules require employers with 100 or more employees to annually report W-2 earnings, work hours, race/ethnicity and gender for all U.S. employees, separately for each location.

First reporting will be on 2017 data. The first annual filing deadline is March 31, 2018. EEOC and OFCCP will use the newly-reported pay data to launch targeted systemic pay investigations and intend to publish the reported pay data.  So, now is the time to prepare for this new reporting obligation and potential ramifications.

Join Jackson Lewis pay equity experts, Jennifer L. Seda and Mickey Silberman, on November 3,  from 2:00 – 3:00 Eastern for this timely and important webinar during which they will explain the new requirements, increased administrative burdens, and strategic implications of the EEO-1 pay data report.

Registration for this complimentary webinar can be found here.

Director Patricia Shiu to Leave OFCCP on November 6th

We have learned that Patricia Shiu will end her tenure as OFCCP Director in just a few weeks, on November 6th.  Director Shiu assumed the position in mid-2009 and has been one of the longest-serving directors of the agency.

 No information has been announced by the DOL about who will serve as director on an interim basis after Director Shiu’s departure.

We will share additional information as it becomes available.


First Lawsuit Challenging Fair Pay & Safe Workplaces Obligations Filed

As anticipated, the first lawsuit challenging the legality of the Fair Pay & Safe Workplaces executive order and final rules is now on the books. Filed by the Associated Builders and Contractors, a construction trade group, and the National Association of Security Companies, the complaint contains six counts which allege the Obama administration, the FAR Council and the U.S. Department of Labor exceeded their authority as well as violated the due process clause and federal arbitration act with issuance of the executive order and implementing rules .

The regulations and guidance implementing the executive order go into effect in less than a month, on October 25, 2016, and will impose significant information gathering and reporting obligations on covered contractors, as well as prohibitions on pre-dispute arbitration agreements and requirements involving disclosure of pay information.

The suit seeks an injunction preventing implementation of the regulations and guidance recently finalized by the FAR Council and U.S. Department of Labor.

We will provide updates, including information on the injunction request, as they become available so stay tuned for more . . .

Complimentary Webinar: It Pays to Be Sick – Discussion of Executive Order 13706

The final regulations for Executive Order 13706 (“Paid Sick Leave for Workers on Federal Contracts”) were published September 30, 2016.  Under the Executive Order and final regulations, paid sick leave obligations will begin with new solicitations and contracts beginning January 1, 2017.

Join my colleagues Patricia Pryor and Leslie Stout-Tabackman on October 20, 2016 for a complimentary webinar during which they will delve into the details of the new obligations, and discuss how these regulations impact your organization and what you should be doing now to prepare.

Breaking News: Final Pay Data Reporting Report and Paid Sick Leave Regulations Released

On the eve of the end of its fiscal year, the U.S. Department of Labor has released final rules for new EEO-1 Pay Data reporting obligations as well as paid sick leave regulations for federal contractors.

EEO-1 Pay Data Reporting

As highly anticipated, and a day before the deadline for the 2016 EEO-1 reporting period, EEOC announced its final requirements surrounding the revision of the EEO-1 for the collection of pay data.  As previously reported, the new pay data reporting obligation will commence in March 2018.

EEOC has provided information about the new EEO-1 report, including the new form, a Fact Sheet for Small Business, and a question and answer document.  The Agency announced it will also offer free webinars for interested employers and stakeholders on October 20 and October 26, 2016, however, registration for the webinars does not yet appear to be open.

Paid Sick Leave

In addition to releasing information on the new EEO-1 pay data report, the Department of Labor also announced final rules implementing Executive Order 13706 requiring covered federal contractors provide paid sick leave for covered employees.

Scheduled for official publication tomorrow in the federal register, the rule will go into effect 60 days after publication.  As proposed, the rules require federal contractors provide at least 1 hour of paid sick leave for every 30 hours of work, for a total of at least 56 hours per year.

We are making our way through both of these new rules and regulations and will be back soon with updated insights and analysis.

OFCCP Report Card: GAO Release Report of Its Review of the Agency

This week the General Accounting Office (GAO) issued a report to the House of Representatives Committee on Education and the Workforce on its recent audit of OFCCP.  The report reviews (1) how the Agency conducts audits; and, (2) the Agency’s outreach assistance and guidance efforts. 

The 56-page report – titled “Strengthening Oversight Could Improve Federal Contractor Nondiscrimination Compliance” – finds OFCCP audits only “about 2 percent of federal contractor establishments annually.”  Notably, the report concludes OFCCP “does not have reasonable assurance that it is focusing its compliance efforts on those contractors with the greatest risk of noncompliance.”   

The GAO is also concerned 85% of contractors do not timely submit AAPs within the 30-day deadline which “suggests that OFCCP processes do not ensure that all contractors are complying with their obligation to complete and annually update an AAP.”  Some contractors have already seen requests for extensions to submit their AAPs in response to Scheduling Letters shortened or outright denied.  It is likely this practice will continue, and even intensify, in the wake of this observation from the GAO. 

The report makes six recommendations for OFCCP.  Included are recommendations to:

  •  revamp the audit selection process to better target noncompliant contractors
  • develop a mechanism to monitor AAPs on a regular basis, including possibly electronically collecting AAPs and contractor certification of annual updates
  • make changes to the current scheduling process to addresses “changes in human capital and not rely exclusively on geographic location”

The GAO plans to provide updated information when it confirms what actions the agency has taken in response each recommendation.

In response to the release of the report, the House Committee to which the report was issued, published a statement in which it commented

This report demonstrates that there are tools already in place to protect workers and hold federal contractors accountable. Despite the rhetoric we hear from the administration and its Democrat allies in Congress, this also shows the overwhelming majority of employers do the right thing and follow the law

Stay tuned for GAO updates, other developments and impacts of this report on OFCCP’s enforcement actions.

Complimentary Webinar: Fair Pay and Safe Workplaces Final Rule

As we previously announced, the U.S. Department of Labor (“DOL”) and the Federal Acquisition Regulatory (“FAR”) Council have published the highly-anticipated final guidance and regulations implementing President Barack Obama’s “Fair Pay and Safe Workplaces” Executive Order (E.O. 13673), often called the “Blacklisting” or “Bad Actors” Executive Order. This rule will present significant challenges and have tremendous impact on the federal contractor community.

To help ensure your organization is ready for the October 25, 2016 effective date for the new rules, we have taped a complimentary webinar for your use.

In this webinar, my colleague Leslie Stout-Tabackman joins me to discuss what you need to know about the new regulations, how they can impact your organization, and what every contractor should be doing now, including:

  • Key changes from the proposed rule and guidance;
  • Effective dates, including phased in requirements;
  • Covered entities and contracts;
  • Definitions of disclosable labor law decisions and violation categories;
  • Disclosures by subcontractors;
  • DOL’s new preassessment of violations invitation;
  • Paycheck transparency and pre-dispute arbitration agreements.

Let us know what we can do to assist as you are working through all of the requirements and assessing the impact on your organization.

‘Tis the Season . . . for EEO-1 & VETS-4212 Reporting

It rolls around each year:  back to school, Labor Day, football season and the September 30th deadline for government reporting.  While next year may bring changes given the proposed  EEO-1 pay report, the filing obligations remained unchanged for this year.


Of note, we suspect the deadlines may not be automatically extended this year as they have been in years past, so employers should not count on this.  Why?  Unlike in years past, the EEO-1 reporting system has been updated and the Joint Reporting Committee (JRC) is promptly responding to requests for IDs and passwords.  However, employers may request and receive a “one-time” 30-day extension here.  The JRC states, “No extensions will be granted after Oct. 30th.”

Strategic Considerations

As your organization files reports this year and in the future, be strategic and consider the following:

For All Employers

Implications for Pay Reporting in Q1 2018.  Beginning in Q1 2018, employers will likely have to file W-2 earnings from calendar year 2017 and hours worked on every EEO-1 Report.  This pay data will be used by the enforcement agencies to determine which organizations to investigate as well as made public by the agency.

Ensure you are prepared by doing the following:

  • Conduct a pay equity analysis to identify and address pay issues now.


  • At the beginning of the year, conduct “test runs” of your 2016 W-2 and hours worked data to determine if your organization is prepared to pull and merge the data required from your HRIS and payroll systems to complete these reports.  This will help inform if new reports need to be queries and the manpower required to complete these new obligations.


  • Breaking up Separate Legal Entities and Location.  Employers should accurately break up their reports by separate legal entity and location.  There are specific rules on how to handle locations of less than 50 employees, which notably differ between the two sets of reports.  Ensure they are handled properly – they should not be automatically rolled to the closest location, etc.  We often see issues with employees in these smaller locations placed into incorrect reports.


For Federal Contractors and Subcontractors


  • Consistency with AAP Structure.  In OFCCP audits, federal contractors and subcontractors must submit these reports, which should be set up relatively consistently (with a few exceptions) to the AAP.  OFCCP will compare to the AAP numbers by EEO-1 category and use for evaluative purposes to determine compliance.  This is also important as the EEO-1 reports are used to select employers for audits and locations of less than 50 are generally not selected for audit.


  • Using the VETS-4212 to Evaluate Compliance with the Vets Hiring Benchmark.  The hiring section of the VETS-4212 report reflects progress toward the current 6.9% veteran hiring benchmark and the effectiveness of your outreach efforts.  OFCCP evaluates this in audits.


Happy reporting and, as always, let us know if we can help.

Fair Pay & Safe Workplaces Final Rule and Guidance Highlights

As we reported yesterday, the FAR Council and U.S. Department of Labor have published final regulations and guidance implementing Executive Order 13673.  In connection with the much awaited publication, the Department of Labor has created a detailed webpage with FAQs and other informative pages regarding implementation of the final rules.

A few of the highlights from the Final Rules include:

  • Effective date for prime contractors is October 25, 2016
  • However, for bids under $50 million, no disclosure is required for a 6 month period – until April 25, 2017
  • Subcontractor reporting on hold for one year until October 25, 2017
  • Reporting period will be phased in 1 year at a time into a 3 year look back by October 25, 2018
  • Subcontractors are to report violations to DOL, not to primes, and must report back to primes on DOL findings
  • Legal entity required to report its violations is that listed on the bid/offer or contract, not parent, subsidiaries.  A division of a corporation would be required to make disclosures of the corporation
  • Contractors are encouraged, though not required, to go to DOL for preassessment of their violations before bidding contracts
  • Provides “due process” for contractor to receive notice of and respond to recommendation prior to final responsibility determination
  • State law violations (except OSHA equivalents) requiring disclosure will be subject of a future rulemaking
  • The definitions of “serious, willful, repeated, and/or pervasive violations” remain substantively unchanged
  • Pay Transparency and prohibition on pre-dispute arbitration requirements are still in place.

For additional information check out our recent article and stay tuned for more depth analysis in the coming days.