OFCCP has just announced it has revised its Supply and Service FY 2020 audit scheduling list by removing all establishments selected to receive focused reviews and compliance checks.

An amended Corporate Scheduling Announcement List (CSAL)  and amended methodology  have been posted on the agency website.

The evaluations that will proceed include establishment-based compliance reviews, CMCE reviews, FAAP reviews and university compliance reviews.

This is a breaking story.  We will provide an update with more details.

In an e-mail sent out to registered stakeholders OFCCP announced in an effort to “improve efficiency and better integrate compliance assistance efforts,” it is discontinuing the Agency’s Contractor Assistance Portal as of March 1, 2021.

The notice emphasized OFCCP

remains committed to quality compliance assistance

and notes it will strengthen its efforts through improvements to various means of providing assistance, including Compliance Assistance Guides, FAQs, webinars and training through the Contractor Compliance Institute.

The communication encourages stakeholders to contact OFCCP with questions (Toll-Free Help Line: 1-800-397-6251 (TTY 1-877-889-5627) and to utilize the agency’s Help Desk to ask questions on-line.

 

As yet another confirmation that pay equity will be a priority for the Biden-Harris administration, the proposed Paycheck Fairness Act has been reintroduced in the U.S. House of Representatives as H.R. 7.  The proposed legislation has a long history but has never been given a vote in the Senate – it last passed in the House of Representatives in 2019.

In summary, the current version of the Act would address the gender wage gap by amending the equal pay provisions of the Fair Labor Standards Act of 1938 to:

  1. restrict the bases on which pay disparities may be legally justified and exclude “any factor other than sex”;
  2. enhance nonretaliation prohibitions,
  3. make it unlawful to require an employee to sign a contract or waiver prohibiting the employee from disclosing information about the employee’s wages, and
  4. increase civil penalties for violations of equal pay provisions.

Notably, this version of the Act would require OFCCP to:

implement a survey to collect compensation data and other employment-related data (including hiring, termination, and promotion data) and designate not less than half of all nonconstruction contractor establishments each year to prepare and file such survey, and shall review and utilize the responses to such survey to identify contractor establishments for further evaluation and for other enforcement purposes as appropriate.

It seems this new OFCCP obligation could supplement OFCCP plans to require contractors to annually certify their AAP compliance, and seeks to fill the gap while EEOC studies the viability of collecting pay data for all employers through the EEO-1 reporting mechanism. For those of you who recall, this has remnants of the retired EO survey of years past.

There will likely be changes to the bill as it passes through the legislative process.  As always, we will keep you updated with further developments.

Following on the heels of President Biden’s inaugural day revocation of President Trump’s Executive Order on Combatting Race and Sex Stereotyping, OFCCP has officially ceased all activities in connection with enforcement of Executive Order 13950.

Specifically:

  • OFCCP has rescinded the Frequently Asked Questions regarding Executive Order 13950.
  • OFCCP will completely shut down the phone hotline and email address established to accept complaints under Executive Order 13950.
  • OFCCP will administratively close all complaints regarding alleged noncompliance with Executive Order 13950 received through the hotline or any other means

Additionally, the Agency has explicitly stated that

OFCCP will not enforce any of the provisions required by Section 4(a) of Executive Order 13950 contained in government contracts or subcontracts to the extent those provisions have already been included.

To be clear, contractors are not required to provide notice of any commitments under the executive order or include provisions or provide notice in contracts or subcontracts.

As part of the many Executive Orders signed his first day in office, President Biden formalized is administration’s commitment to protecting the rights of the LGBTQ+ community by signing an Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.  The Order states:

Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love.

Building on the groundbreaking U.S. Supreme Court decision of Bostock v. Clayton County, Georgia, President Biden has ordered all federal agencies to review” all existing orders, regulations, guidance documents, policies, programs, or other agency actions” that prohibits sex discrimination, including any that relate to the agency’s own compliance with such statutes or regulations and to develop a plan to

revise, suspend, or rescind such agency actions, or promulgate new agency actions, as necessary to fully implement statutes that prohibit sex discrimination . . . .

This Executive Order, in addition to his Executive Order On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government are no doubt only the first set of actions we will see from this Administration in furtherance of diversity and inclusion.

As always, stay tuned for more!

As one of his first actions as President, Joe Biden has issued an executive order overturning the much controversial Executive Order 13950: Combatting Race and Sex Stereotyping.  In addition to additional actions aimed at promoting and ensuring equity, the new Executive Order On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government expressly revokes EO 13950.

We are digesting the full Executive Order and will provide additional details soon.

As suspected, it appears imminent that former EEOC Commissioner will be named as Director of OFCCP under newly inaugurated President Joe Biden.  Ms. Yang’s name appears on the list of Department of Labor leadership as Director of OFCCP though no formal announcement has been made by OFCCP.

We will bring additional details as they develop.

As we are preparing for a change in leadership at OFCCP,  the Agency has published its first Section 503 Focused Reviews Annual Report and issued Section 503 Certificates of Merit.  As many are aware, OFCCP Director Craig Leen is passionate about fighting for and protecting the rights of individuals with disabilities and, as such, has developed a Section 503 compliance and recognition program that no doubt, will be one of his legacies with OFCCP.  We thank Director Leen for his service as OFCCP’s Director and wish him well in his future endeavors.

The Certificates of Merit announced to day go to ten federal contractors which met the established criteria:  (1) meeting the 7% disability goal in at least 50% of all job groups; and, (2) receiving a Section 503 audit closure letter with no violations.  Congratulations go to:

  • Ventech Solutions, Inc.
  • Professional Management Enterprises
  • Quantitech, Inc.
  • Goodwill Industries of Central Indiana
  • Systems Application & Technologies
  • Didlake Incorporated Consolidated
  • Airbus Helicopters, Inc.
  • Centers for Habilitation
  • Paul Hastings, LLP
  • Lighthouse for Blind – New Orleans

These certificates are in addition to the Agency’s highest disability achievement award – the Excellence in Disability Inclusion Award – which the Agency awarded earlier to CVS Health and PepsiCo.

Award of the Certificates of Merit comes on the heels of OFCCP’s first Section 503 Focused Reviews Annual Report, which is a summary of not only audit results but also a summary of the Section 503 audit process, compliance assistance resources and best practices.  Notably, although OFCCP has yet to complete the other 50% of these audits from the March 2019 audit list, as of the end of fiscal year 2020, “OFCCP has not found any discrimination or reasonable accommodation violations in the focused reviews.”  OFCCP has entered into conciliation agreements with contractors to remedy other violations, the top five of which are:

  1. Failure to conduct appropriate outreach and positive recruitment of individuals with disabilities that were reasonably designed to effectively recruit qualified individuals with disabilities;
  2. Failure to invite applicant and employees to self-identify as an individual with a disability;
  3. Failure to document the computations or comparisons pertaining to applicants and hires, as described in 41 CFR 60-741.44(k) and maintain this data for three (3) years;
  4. Failure to design and implement an acceptable audit and reporting system which measured the effectiveness of its affirmative action program; and
  5. Failure to develop and submit acceptable Section 503 AAPs and support data.

As an important note, the Annual Report provides that:

“OFCCP plans to schedule the remaining contractors on the FY 2019 list before scheduling the 250 Section 503 Focused Reviews on the FY 2020 supplement.”

As the new administration and leadership of OFCCP transitions into place we will make sure to continue to bring you update information and insights.

The U.S. Equal Employment Opportunity Commission (EEOC) announced today that the collections for the 2019 and 2020 EEO-1 Component 1 Data that was postponed in 2020 will begin in April 2021.

The noticed stated:

The precise opening dates of the collections, as well as the new submission deadline dates, will be announced by posting a notice on the EEOC’s home page at www.eeoc.gov as well as on the new dedicated website for the agency’s EEO data collections at https://EEOCdata.org.

As in previ­ous years, EEOC will also be sending a notification letter to eligible filers.

As we’ve previously shared, there is no pay data collection component to the EEO-1 reports at this time.

We will provide additional details as we learn of them, including the submission deadline when announced.

Following on the heels of its final rule clarifying the religious exemption found at Section 204(3) of Executive Order (EO) 11246 and codified at 41 C.F.R. 60-1.5(a)(5) (the Exemption), OFCCP this week issued an Opinion Letter addressing the scope of the Exemption. Specifically, the Opinion Letter provides insights on “six possible religious discrimination scenarios.”

As a reminder, federal contractors are prohibited from discriminating based on religion and national origin and must provide appropriate religious accommodations, absent undue hardship.  41 C.F.R. 60-50.2.  However, these regulations are subject to limits:

  1. The Exemption excludes any contractor or subcontractor that is a religious corporation, association, educational institution, or society regarding the employment of individuals of a particular religion;
  2. The Religious Freedom Restoration Act may require an exemption or accommodation for a contractor under EO 11246; and
  3. The First Amendment ministerial exception bars employment discrimination suits on behalf of employees who work at religious institutions in positions deemed to be “ministerial.”

According to the Opinion Letter, an organization sought guidance from the Agency regarding the six scenarios due to its concern “that employees in the technology, education, public, and other sectors may face discrimination at work based on faith-related activities and beliefs.”  The letter, cited, as an example the following fact pattern:

An employee suffers an adverse employment action because, during a company-provided rest break in which coworkers were discussing current events or social issues, the employee stated that he or she has religious views that others may find offensive (e.g., he or she believes in traditional marriage or, conversely, supports an expanded definition of the family).

OFCCP responded with the following answer (scenario 4):

Generally speaking, unless the employee has been told such comments are unwelcome, an employee’s respectful expression of religious views in off-duty conversation are not objectively hostile, nor do they constitute harassment. We assume that this is the case in this scenario, as it appears to be. If so, then the adverse employment action here, based as it is on the employee’s religious belief, would be a violation of 41 C.F.R. § 60-50.2.

OFCCP Director Craig Leen’s Opinion Letter also points out that OFCCP’s Federal Contract Compliance Manual provides additional guidance in the Religious Accommodation section (2J01).

While the Exemption seems clear, there are many complicated nuances, potential conflict with LGBTQ+ protections and perhaps grounds for legal challenge.  As always, we will continue to monitor this area and provide any insights and updates as they develop.