The Office of Federal Contract Compliance Programs (OFCCP) has published a notice in the Federal Register notifying federal contractors of two new Freedom of Information Act (FOIA) requests for the disclosure of contractors’ EEO-1 Type 2 Reports for the year 2021.  The requests also ask for the 2022 Reports but OFCCP currently has access to only the 2021 reports.

Contractors subject to the FOIA requests can be found on OFCCP’s website here: https://www.dol.gov/agencies/ofccp/foia/library/Employment-Information-Reports.

As it did in 2022 in connection with last large-scale EEO-1 FOIA requests, OFCCP has created a Submitter Notice Response Portal to collect relevant information from contractors and their representatives that wish to object to the release of the requested data. 

The portal will open October 29, 2024. Objections to the new requests are due by December 10, 2024.

The previous FOIA requests and objections filed to those requests in 2022 are still embroiled in active litigation. As such, the acceptance of contractors’ prior requests and any newly filed objections remain to be seen.

Despite a number of pending lawsuits challenging the Biden Administration’s authority to impose the minimum wage increase for federal contractors, the new rate of $17.75 is expected to take effect January 1, 2025. Our colleagues share what the approximately 500,000 impacted employers need to know. Read more.

As its first official act of the 2025 Fiscal Year, OFCCP announced the release of a revised Scheduling Letter and Itemized Listing for Construction contractors. The release follows the Agency’s February 2024 publication of proposed changes to the letter and despite its release on October 2, 2024 will apply to any construction audits initiated “on or after October 1, 2024.”

A number of the changes are similar in nature to the changes OFCCP made to the Supply and Service Scheduling Letter and Itemized Listing in August 2023, while others are unique to the construction industry.

Under the new scheduling letter, construction contractors will be required to provide significantly more with the initial audit submission, including detailed data and documents related to personnel and employment practices.  For example, contractors are now required to include payroll information beyond base pay. OFCCP does not clarify whether contractors must distinguish between the specific types of pay an employee may receive or can simply report compensation as one lump sum.  OFCCP also clarifies that employment activity data must now be provided for all trade employees, including those involved in supervising, inspecting, or engaging in “other onsite functions incidental to the actual construction.”

Contractors must now also report on employee lay-offs, including the former employee’s name, trade/job title, gender, race/ethnicity, the date of and the reason for the layoff, as well as recall eligibility. 

OFCCP has also expanded reporting obligations relating to policies similar to those required of Supply and Service contractors.  In addition to submitting a compliant EEO Policy Statement, contractors now must also submit antiharassment policies, policies on EEO complaint procedures, policies on employment agreements impacting employees’ equal opportunity rights and complaint processes, “and any other EEO policies.”

 Consistent with the updated Supply and Service Scheduling, OFCCP now requires construction contractors to report on any artificial intelligence, algorithms, or other automated systems in its hiring process.  In fact, the scheduling letter requires construction contractors identify all selection procedures used to fill relevant positions in the Standard Metropolitan Statistical Area (“SMSA”) selected for audit, including all tests used in the hiring process (whether or not the test is technology-based).   Importantly, contractors must also provide evidence that any tests or selection procedures were validated (in accordance with 41 CFR 60-4.3(a)7.k and 41 CFR 60-3). 

Mirroring the Supply and Service scheduling letter, construction contractors must also demonstrate that the company is monitoring its personnel/employment activities to ensure that seniority practices, job classifications, work assignments, and other personnel practices did not have a “discriminatory effect,” and that the company’s EEO policy and related obligations are being fulfilled.

For construction contractors with federal direct or subcontracts other than federally assisted contracts, the new scheduling letter includes updated items required for submission related to its Section 503 and VEVRAA AAPs for individuals with disabilities and protected veterans, respectively.  These items include an assessment of personnel policies, identification of problem areas, evaluation of effectiveness of outreach for veterans and individuals with disabilities, and a utilization analysis of individuals with disabilities.   

As always, Jackson Lewis will continue to monitor and report any additional modifications or clarifications to the construction contractor scheduling letter.  Please contact the Jackson Lewis attorney with whom you work if you have any questions or would like to discuss further.

It’s a wrap – the 2024 National ILG Conference has officially come to an end! The final morning of the conference brought remarks from EEOC Chair Charlotte Burrows, a panel discussion with OFCCP Regional Directors and final thoughts from the NILG Advisory Council – all interspersed with inspiring videos from conference sponsors CVS and Pepsi.

Chair Burrows’ comments started with the history and foundation for EEOC’s work. She noted this is a “good time to reflect on the bold step the nation took” in passing the Civil Rights Act of 1964 which she believes has made a “stronger, better and fairer America.”

She highlighted the Agency’s work this year to release guidance on harassment and protections for pregnant workers and shared EEOC’s perspective on the continued importance of (and place for) DEIA in the workplace.

Chair Burrows’ remarks culminated with a look into the future work of the agency in the area of artificial intelligence which she deemed a “new civil rights frontier.”

As always, Chair Burrows was gracious and appreciative of NILG’s continued partnership.

Following the EEOC update, attendees heard from all five OFCCP Regional Directors in what has become a conference favorite closing session.

Regional Directors Carmen Navarro (Midwest), Jane Suhn (Pacific), Ronnie Sullivan (SWARM), Diana Sen (Northeast and Southeast) and Sam Maiden (MidAtlantic) shared their thoughts on questions from moderators about contractor challenges, successful or promising practices and approaches to Agency review of Artificial Intelligence.

Several themes emerged in their responses:

  1. OFCCP, and the Regional Directors personally, appreciate the collaboration and partnership the conference fosters and encourage contractors to continue that once the conference ends.
  2. Recordkeeping continues to be a challenge for contractors.
  3. Early resolution is beneficial for both sides.
  4. Leadership and contractor engagement is important for successful compliance.

To close out the conference, the NILG Advisory Council provided their insights into the discussions and learnings of the week in the areas of pay groupings, audit best practices, Supreme Court cases impacting DEI and agency deference and artificial intelligence, among others.

We had an amazing week in Orlando and we look forward to doing it again next year in Washington, D.C. at the 2025 National ILG Conference. Safe travels and see you next year!

After a stormy Orlando evening (complete with a double-rainbow) conference goers awoke to clear skies and a beautiful sunrise to start Day 2 of the 2024 National ILG Conference.

Following a “State of the NILG” update and the presentation of the Lois Baumerich award (congratulations Valerie Vickers!) conference attendees were off to hear from industry leaders on a variety of topics and program updates from OFCCP.

In one of the first workshops of the day, OFCCP provided an Agency update. Led by Tina Williams, OFCCP Director of Policy and Program Development, the session included Agency updates on:

  • MEGA construction projects
  • Artificial Intelligence
  • Information Collection Requests (ICRs)
  • Sub regulatory guidance
  • Outreach
  • Training
  • FAAPs
  • Contractor Portal
  • CSALs
  • Recent Supreme Court decisions

It was a jam-packed agenda but OFCCP personnel took time to answer questions from the audience about guidance on dual jurisdiction for construction and supply and service contractors (Spoiler Alert: OFCCP believes contractors can be both at the same time), the contractor portal and another Corporate Scheduling Announcement List (CSAL), among other items.

OFCCP confirmed it has “heard the feedback” from contractors about portal certification and will be implementing delivery of an e-mail confirmation at the successful completion of the certification process.

With respect to the CSAL, while not reporting an actual date of release, Tina Williams confirmed another list would be coming out “this fiscal year.” As a reminder, OFCCP’s fiscal year ends September 30, so the agency “doesn’t have much time” to get out another list. There were no further details or hints as to the methodology the Agency will employ to cultivate the upcoming selections.

The day rounded out with more presentations on a wide variety of topics before attendees head to an off property at event at Disney Springs and an after -party celebration at the conference hotel.

I hope everyone has a great evening and we’ll be back at it tomorrow!

Orlando, FL – This year’s National ILG Conference started off in traditional fashion with the presentation of the flag and the National Anthem followed by a touching performance from the Childrens Choir of Orlando.

Attending the conference for a second time in her current capacity, Acting OFCCP Director Michelle Hodge opened the conference with remarks highlighting the conference theme of “Explore. Enable. and Evolve.”

After introducing the national office staff and regional directors, Acting Director hodge turned to discussing OFCCP’s accomplishments under Acting Secretary of Labor Julie Su as the agency is “finding new ways to unleash its power.”

Acting Director Hodge’s list of OFCCP’s accomplishments since last year’s conference include:

As to the “evolve” portion of the conference’s theme, Acting Director Hodge acknowledged the agency must “evolve to keep up with the ever-changing landscape,” recognizing OFCCP will continue to “adapt and grow,” speaking to the Agency’s work on Artificial Intelligence as an example.

Taking a moment to address the proverbial elephant in the room, Acting Director Hodge briefly noted the recent trio of supreme court cases addressing administrative agency deference and authority “does not mean our work stops” and encouraged attendees to attend OFCCP’s enforcement updates and policy workshops to “hear more about how OFCCP is proceeding.”

In the OFCCP Enforcement session to which Acting Director Hodge referred, Bev Dankowitz, Associate Solicitor, Civil Rights & Labor Mangement (CRLM) Division, did in fact spend a few minutes discussing the Agency’s perspective on the impact of the recent legal decisions. With respect to Loper Bright (the case overturning Chevron deference for Agency regulatory interpretation) she stated

OFCCP believes its regulations are squarely within its authority and we will continue to enforce them.

Associate Solicitor Dankowitz did note, however, that the impact of the decisions are “under review” within OFCCP, across the Department of Labor, and beyond.

During the same OFCCP Enforcment session, Jeff Lupardo, also from the CRLM Division, gave an update on recent OFCCP litigation matters. Bob LaJeunesse and David Garber also presented updates on the analytical tools and practices of OFCCP’s enforcement division and Bureau of Expert Services. Acting Director Hodge, in attendance in the audience, provided clarification on the 3-year audit moratorium period formalized in the new Expedited Conciliation Procedures Directive. And a robust discussion of the Agency’s development and use of desk audit tools for its investigations closed out the session.

Acting Director Hodge’s opening remarks and the Agency’s enforcement update book ended a first day of great content at this year’s conference. We can’t wait to see what insights and information Day 2 tomorrow holds for us!

Ahead of the start of the 2024 National ILG Conference, OFCCP announced today publication of Directive 2024-01: Expedited Conciliation Procedures.

In its announcement OFCCP described the directive as

outlining updated procedures for an expedited conciliation option, giving contractors and the agency flexibility in the resolution of violations.

More specifically, OFCCP explained the new directive is the agency’s way of “align[ing the conciliation] process with OFCCP’s final rule, Pre-Enforcement Notice and Conciliation Procedures, published on August 4, 2023. The new Directive 2024-01 rescinds and replaces DIR 2019-02, Early Resolution Procedures. 

Among other procedures, the new directive sets out a timetable for the review and consideration of expedited conciliation by both OFCCP and the contractor, with the first proscribed deadline occurring 14 days after the conclusion of the desk audit, at which time,

when possible, the Investigator must discuss the desk audit findings and potential for expedited conciliation with the district and regional office management. 

We are continuing to review the new directive and look forward to hearing OFCCP’s thoughts and comments next week in Orlando.

OFCCP released today a new list of supply and services contractors and subcontractors selected for audit (FY 2024 CSAL Supply & Service Scheduling List, Release – 1). The list identifies 500 compliance reviews among approximately 462 companies.

The Agency also published an explanation of the methodology used to select a pool of the contractors and subcontractors for review, which included a review of eligible contractors’ 2021 EEO-1 filings to prioritize locations with the highest employee count in each district office’s jurisdiction.

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 be back soon with more insights.

As organizations are preparing and filing the 2023 EEO-1 Data Collection reports, (deadline is June 4th) there’s a change on the horizon for future reporting.

For the first time in over twenty-five years, in March, 2024 the Office of Management and Budget (OMB) published  a set of proposed revisions to Statistical Policy Directive No. 15: Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity (“Revised SPD 15”).  While these revisions were long overdue, not much has (or will) change soon.

Recognizing that race and ethnicity are “socialpolitical constructs,” and acknowledging the increased racial and ethnic diversity of the country, in June 2022 OMB established a working group, and started a formal review of its race and ethnic categories to better reflect how several federal agencies, including EEOC and OFCCP, view and analyze demographic data. The Revised SPD 15 is the product of this review.

While SPD 15 has many changes and is the culmination of years of research, here are a few of the proposal highlight:

  • The requirement to collect Hispanic ethnicity separately from other races would be no more!   After considering a series of cognitive interviews conducted  by its working group, and research conducted by the Census Bureau in preparation for the 2020 census collection, OMB determined that race and ethnicity will be combined into a single question, citing that this approach “reduced confusion and improved data quality.”
  • “Middle Eastern or North African (MENA)” would be its own separate race/ethnicity category.  Previously, individuals who traced their ancestry to the Middle East or North Africa were defined and tabulated within the “White” category. Public comments reflected concerns that the White classification “did not reflect the reality” of many individuals who identify as MENA, and research conducted by federal agencies confirmed broad public support for having a distinct category, so the change was implemented.
  • Words Matter: Terminology updates. The Revised SPD 15 would change outdated terms. For example, “majority” and “minority” would no longer be used, except when statistically accurate. The term “Far East” in the “Asian” category definition would be replaced by “East Asian”.
  • Focus on multiple identities. The Revised SPD 15 emphasizes that reporting multiple categories would not only allowed, but would be “encouraged.”

To be clear, no immediate action is required. Federal Agencies need to first create plans to bring their respective agencies into compliance and submit these plans for OMB’s review next year ( within 18 months of proposal). The Agencies will have 5 years (until 2029) to implement the new rules. As a result, we do not yet know how EEOC or OFCCP will interpret and implement SPD 15. In the meantime, employers should be aware of the new requirements, and start strategizing how they may fit into their current data collection practices and objectives to create a smooth roll out plan for the new data gathering.

Please contact a Jackson Lewis attorney if you have any questions about these developments or need assistance.

OFCCP announced this morning the release of a new Artificial Intelligence (“AI”) landing page. The landing page, which encourages readers to “check back often for updates” contains links to the Agency’s thoughts about the use of AI in federal contractors’ employment processes. 

Following a link labeled Artificial Intelligence and Equal Employment Opportunity for Federal Contractors the Agency provides ten “frequently asked questions” followed by a list of “promising practices” for the development and use of AI by federal contractors. These practices “while not expressly required, actions contractors may consider to help avoid potential harm to workers and promote trustworthy development and use of AI.” The practices include suggestions on the use of AI in the equal employment opportunity context, obtaining a vendor-created AI system, and accessibility and disability inclusion in the AI space.

This new guidance comes just weeks after OFCCP signed onto a joint statement with other Federal Agencies to protect the public from unlawful bias in automated systems earlier this month.  A link to the joint statement is also available on OFCCP’s AI landing page.

We are in the process of digesting the new FAQs and “promising practices” so stay tuned for additional thoughts and insights.