It’s been a busy morning for government contractors!  As the NILG 2022 National Conference in Boston, Massachusetts was coming to a close and EEOC was releasing the NAS study on the EEO-1 Component 2 pay data collection tool, OFCCP was communicating with contractors about the OFCCP Contractor Portal.

In an e-mail communication, OFCCP provided a number of clarifications and additional information about the portal.

First, the Agency confirmed

OFCCP has not extended the June 30 deadline. Contractors that have not yet registered and certified whether they are in compliance with their AAP obligations should do so as soon as possible.

Second, OFCCP warned that

[c]ontractors that have not certified will be more likely to appear on OFCCP’s scheduling list than those that have certified their compliance with AAP requirements. Contractors that have not certified compliance include those that have not utilized the Portal to certify whether they are meeting their AAP requirements, as well as those contractors that have certified they have not developed or maintained an AAP.

Additionally, the notice reported, as reported by OFCCP Director Jenny Yang during her NILG National Conference keynote speech, that

contractors that have not certified compliance by September 1, 2022, will be included on a list provided to federal agency contracting officers. The purpose of this list is to enable contracting agencies to notify contractors of their certification obligations, thereby assisting OFCCP in securing compliance.

OFCCP continues to offer technical assistance for contractor who have not yet certified.  OFCCP offers a user guide and frequently asked questions and directs contractors to contact the OFCCP Contractor Portal Technical Help Desk  or call 1-800-397-6251 with any questions.

As announced, as the 2022 NILG National Conference was coming to a close, EEOC released the long-awaited National Academy of Sciences report on the EEOC’s Pay Data Collection Completed in 2020. The study, titled Evaluation of Compensation Data Collected Through the EEO-1 Form, is a dense read at over 275 pages.

The high level conclusion from EEOC’s perspective is the study

confirms pay data collection is a key tool to fight discrimination.

The report found however, that the process of collection, as well as the actual data to be collected had flaws.  The report also recommends EEOC embark in a trial to field test the process if  decides to roll out a nationwide data collection tool.

Former EEOC Commissioner Vicki Lipnic, who previously addressed pay equity at previous NILG National Conferences and was on stage as part of the conference’s wrap up, offered her insight that the process to develop, test and implement a new pay data collection tool is a lengthy process that can take years to complete.

There will undoubtedly be a variety of thoughts, opinions and take-aways from the report shared by many in the coming days and weeks.  We will be reviewing the detailed report and will be back with our insights.

The National Academies’ webinar about the report will be held on August 2 from 1 pm – 3 pm (ET), and people can register here.

 

 

The final day of the NILG 2022 National Conference is upon us.  As has become  tradition, conference attendees heard from a panel of the OFCCP Regional Directors who shared insights from their respective regions and provided thoughts and recommendations for contractors.

The themes of early resolution, continued focus on systemic pay and hiring cases and increasing resources as well as cross-region coordination in audits prevailed in the RDs comments.

The Director’s reported the continued work on proactive communications and analysis by contractors is appreciated and helpful during the audit process.

Following a presentation about Thompson Island, the destination of the conference’s gala, the 2022 conference concluded with a recap discussion by the NILG’s Advisory Committee.

As this year’s conference comes to a close, we reflect on the good times reconnecting with friends, the information sharing amongst the agency and contractors and Boston’s hospitality.

We look forward to seeing everyone next year in Phoenix, Arizona!

During her keynote speech to open the second day of the NILG 2022 National Conference, EEOC Vice Chair Jocelyn Samuels hinted that an announcement involving the Agency and pay equity would be coming soon.

True to her word, this afternoon EEOC announced it will be holding a press conference tomorrow at 12:00 ET to discuss the results of an independent study conducted by the National Acad­emies of Sciences, Engineering, and Medicine’s Committee on National Statistics.  As a reminder, following the contentious collection of pay data in 2020, the EEOC commissioned the study to examine the EEO-1 Component 2 pay data reporting and recommend the most effective use for the pay data as well as identify areas of improvement for future collections.  The release of the report has been anticipated for months.

With respect to pay data collection, the Vice Chair explained  the tool is intended to assist employers identify issues to allow them to address pay discrimination.

Vice Chair Samuels also shared with conference attendees the Agency’s thoughts on the impact of COVID on workforces, its position on vaccines and testing as well as its stance on COVID related accommodations.  She spoke about the impact of recent U.S. Supreme Court cases on gender identify, sexual orientation and non-binary individuals and pregnancy discrimination.  She also spoke to the Agency’s Artificial Intelligence strategic initiative and enforcement of retaliation and harassment.  She noted that the Agency is in the process of updating its Strategic Enforcement plan and is planning to seek input from stakeholders into its development.

Noting that

[e]quity is the rising tide that lifts all boats.

Vice Chair Samuels’ message shared the sentiment and the overall theme and focus of the conference.

Stay tuned for more updates tomorrow!

Hello from the opening day of the NILG 2022 National Conference in Boston, Massachusetts and it seems like the crowds have returned following last year’s hybrid conference in Nashville, TN.

With the theme of “Be the Beacon of Change” the first full day of this year’s conference kicked off with a full slate of great sessions.

OFCCP Director Jenny Yang started the day with the morning’s keynote address – and while she has attended the conference in the past in her role with the EEOC, and addressed the conference last year via video, this was her first time attending the NILG in person in her current OFCCP Director role.  Addressing attendees from the Boston-themed stage, Director Yang shared her vision for the Agency’s continued work to assist employees of federal contractors and continually emphasized her desire to get feedback and input from the contractor community along the way as OFCCP works to increase its “strategic impact.”

Director Yang spoke intently about the Agency’s work, noting

equality of opportunity is not a zero sum game.

Detailing OFCCP’s focus of the change occurring in the working world, Director Yang shared the Agency will have 100 new hires by the end of September and will be working to train the new compliance officers as well as strengthen the field’s data analytics skills.

Talking specifically about some of the Agency’s initiatives, she noted OFCCP is revisiting scheduling methodology and admitted its been “a difficult nut to crack.”  The Agency has been focusing on a more risk-based approach to scheduling with emphasis on industries/contractors who have received or will be receiving infrastructure moneys.  Director Yang detailed how the Agency will be focusing on construction contractors as part of this, including reviving the Mega Projects program as well as looking into analyzing job across multiple works sites within a MSA.

Director Yang discussed OFCCP’s enforcement agenda, including discussion of the recent March 2022 Directives on Compensation and Enforcement .  She specifically took a moment to confirm and clarify OFCCP’s position regarding privileged pay analyses – OFCCP does not intend to seek a contractor’s privileged analysis.  Instead, the Agency is looking only for evidence of compliance with contractor’s regulatory obligation to evaluate its compensation systems, which she noted

is one of the most important steps in addressing pay discrimination

With respect to the enforcement directive, Director Yang explained the rationale behind the Agency’s rescission of the automatic audit submission extension, explaining with the advent of the Contractor Portal contractors “don’t have much need for extensions.”

With respect to the Portal, Director Yang announced OFCCP has shared the Agency’s list of those that have not certified compliance with contracting agencies so they are aware of those that are not in compliance.

Director Yang announced the Agency intends to hold a listening session, (much like it did with respect to pay, establishment based reporting and non-binary gender data collection) on “tech-based hiring.”

In her closing remarks Director Yang asked for “grace of understanding” as OFCCP seeks to continue to collaborate and encourages those to be candid about their challenges.

Following her keynote, Director Yang joined EEOC Chair Charlotte Burrows and Wendy Chun-Hoon, Director, Women’s Bureau, for a panel discussion regarding building a culture of equity for women and people of color in the workplace.

We were thrilled to have Director Yang kick off this year’s conference and look forward the next few days together.

Today, OFCCP under new Director Jenny Yang published a 2022 Corporate Scheduling Announcement List (CSAL) identifying those establishments of federal contractors and subcontractors that it will schedule for compliance evaluations – more commonly known as “audits” – over the next year or more.  Included with the new CSAL is OFCCP’s methodology for selecting contractors for audit.

New for this CSAL is OFCCP’s Directive that contractors may not enjoy a 45-day grace period before the Agency begins to schedule the audits, as has been the case for years.  Directive 2022-02 – Effective Compliance Evaluations and Enforcement provides that “OFCCP may begin scheduling contractors upon the publication of the CSAL.”  While the apparent intent of the CSAL is to provide advance notice, those who are scheduled for an audit on the heels of this 2022 CSAL may not receive much of a heads up.  Nonetheless, it remains to be seen whether the Agency will immediately begin scheduling audits from the 2022 CSAL, given that it is still working to schedule or complete audits from the 2021 CSALs.

Generally speaking, OFCCP will schedule new audits from the 2022 CSAL as District Offices have capacity to handle them, which means the timing of the receipt of a “scheduling letter” triggering the audit is unpredictable.  However, OFCCP will often reach out to the contractor shortly before the sending a scheduling letter to confirm contact information for the company official to whom the scheduling letter will be sent.

Where possible, identified contractors should use the advance notice to ensure that their AAP compliance efforts are in order and that data will be ready to supply to OFCCP.

That is especially true now, given that automatic 30-day extensions of the data submission deadline are a thing of the past.  As also included in Directive 2022-02 – Effective Compliance Evaluations and Enforcement, OFCCP will now grant deadline extensions only in  “extraordinary circumstances.”

The June 30, 2022 deadline is quickly approaching for covered supply and service federal contractors and subcontractors to certify in the Contractor Portal they have developed and maintained AAPs.  This week, OFCCP added an option allowing bulk upload and modification of establishments and functional affirmative action plan (FAAP) business units.

Notably, OFCCP limits this functionality to contractors with 100 or more establishments or FAAP business units:

Companies with 100 or more establishments or functional/business units may request to have their establishments or functional/business units modified or uploaded in bulk by using the Bulk Upload/Modification Template.

Also notable is that this option is not self-executing.  Rather, any contractor wishing to use the bulk option must complete the data template and “Email the completed Bulk Upload/Modification Template as an attachment to OFCCPAppsSupport@dol.gov. In the subject line enter ‘Bulk Upload/Modification Request’.”  The contractor must also request bulk upload on company letterhead and include contact information for a responsible company representative.

OFCCP will then notify the contractor by email when the upload is complete, at which point the contractor must, “Register the Parent Company again using the ‘Identifiers Known Path’” and then check for and remove any establishments that have closed since the contractor filed its 2018 EEO-1 Report.  Even though those establishments will not appear in the bulk upload template, OFCCP will not remove them from the Portal.

Thus, while the bulk upload/modification option is more cumbersome than it might be, it may still offer some efficiencies to contractors with 100 or more establishments or FAAPs.

In support of this option, OFCCP has offered:

We will continue to provide updates and insights as we learn of them.

 

Speaking to the Institute For Workplace Equality during its 2022 Annual Summit in Washington D.C., personnel from the U.S. Department of Labor Solicitor’s office (OFCCP’s attorneys) clarified the intent of the Agency’s new Compensation Directive 2022-01.  Speaking to conference attendees, Beverly Dankowitz, Associate Solicitor for the Civil Rights and Labor- Management, explained the purpose of Directive 2022-01: Pay Equity Audits is to promote greater attention to proactive audits, sharing that the Directive was in no way intended to chill contractors’ work on pay equity.

Acknowledging some confusion stemming from the Agency’s Directive, Beverly also clarified OFCCP’s intent around the issue of contractors’ privileged proactive pay equity analyses, reporting that OFCCP does not want contractors’ privileged studies.  Instead, OFCCP is looking for, and entitled to, demonstration of compliance with 41 CFR 60-2.17(b)(3) which requires an in-depth analysis to evaluate contractor compensation systems to determine whether there are gender-, race-, or ethnicity-based disparities.  To be clear, the Solicitor’s office does not believe this requires disclosure of privileged analyses – if OFCCP can confirm, likely through some question asking, that the study is privileged, OFCCP “will not ask for the study.”

The key here though is contractors need to be able to demonstrate compliance  – and Bev provided guidance on this point as well.  OFCCP has not told contractors what analysis is required – at least not yet.

You don’t have to do a regression, no advanced statistics, you just have to do something.

To be clear, the “something” should rise above the level of perfunctory – it has to at least demonstrate “evaluation of gender-, race- or ethnicity-based disparities.”

Another important take away from the presentation was the confirmation that Directive 2018-05 is still in effect and on which contractors should rely for information as to how OFCCP is evaluating contractor pay.  As a reminder Directive 2018-05 states

If a contractor provides its compensation hierarchy and job structure in the submission to the Itemized Listing, OFCCP will attempt to design its analysis based on that structure. Nevertheless, this assumes that the structure provided is reasonable,11 that OFCCP can verify the structure as reflected in the contractor compensation policies, if necessary, and that the analytical groupings are of sufficient size to conduct a meaningful systemic statistical analysis.12

In the absence of information about a contractor’s compensation system, OFCCP will conduct its preliminary desk audit analysis using either EEO-1 or AAP job groups, provided they are reasonable,13 meet the requirements of 41 C.F.R. § 60-2.12, and are of a sufficient size to conduct a meaningful systemic statistical analysis. OFCCP will control further for sub-job groupings, functions, units, or titles, as appropriate. During the preliminary analysis, OFCCP will also control for tenure, full-time status as well as other factors, as appropriate.

We anticipate continued developments and discussions regarding OFCCP’s evaluation and enforcement of contactor compensation obligations for stay tuned for more!

The 2021 EEO-1 Component 1 reporting period is currently underway.  Most employers with 100 or more employees (and most federal contractors with 50 or more employees) must submit their 2021 EEO-1 Component 1 Report by Tuesday, May 17, 2022.  In past years, for various reasons, the EEOC has extended this deadline to permit additional time, sometimes, like last year, extending the deadline many times.  The EEOC’s Frequently Asked Questions on EEO-1 Reporting suggest  we should no longer expect extended reporting periods.

A new FAQ explains that EEOC will permit employers to submit their EEO-1 Reports after the May 17, 2022 deadline—during what EEOC is calling the “failure to file” phase, stating

All filers who have not submitted and certified their mandatory 2021 EEO-1 Component 1 Report(s) by the Tuesday, May 17, 2022 published deadline will receive a notice of failure to file instructing them to submit and certify their data AS SOON AS POSSIBLE, and NO LATER THAN TUESDAY, JUNE 21, 2022. This additional time, through Tuesday, June 21st, 2022, will be available to ALL filers who have not submitted and certified their 2021 EEO-1 Component 1 Report(s) by the May 17, 2022 published deadline.

The FAQ goes on to warn:

Please be advised that AFTER the June 21, 2022 deadline passes, NO additional 2021 EEO-1 Component 1 Reports will be accepted, and eligible filers will be out of compliance with their mandatory 2021 EEO-1 Component 1 filing obligation.

Despite this potential extra time, the official submission deadline remains May 17.

So to ensure compliance employers should continue to prepare their reports with urgency.  But this additional breathing room will come as welcome news for employers that are unable to submit in the next two weeks.

As we reported the 2021 EEO-1 reporting portal is now open.

More employers are collecting non-binary gender data from employees.  The EEOC however, is not authorized to require collection, or reporting, of non-binary employee data.  The current EEO-1 reporting form has fields only for the reporting of employee binary gender data.  So what are employers who give employees the option to identify as non-binary to do?

The following FAQ sets out the only reporting option currently available for employers:

Our company is now collecting gender beyond the male/female binary. We would like to report this for the EEO-1 Component 1 2021 data collection. How do we report it?

Filers may choose to report employee counts for non-binary gender employees by job category and race/ethnicity in the comments box on the Certification Page in the EEO-1 Component 1 Online Filing System. Please preface this data with the phrase “Additional Employee Data:”. For example, “Additional Employee Data: 1 non-binary gender employee in Job Category Administrative Support Workers; Race/Ethnicity: White (Not Hispanic or Latino). 3 non-binary gender employees in Job Category Professionals; Race/Ethnicity: Employee 1 – Black or African American (Not Hispanic or Latino), Employee 2 – Hispanic or Latino, Employee 3 – Two or More Races (Not Hispanic or Latino).”

EEOC and OFCCP are considering more formal collection/reporting obligations but until that time, this is what employers have to work with.

Stay turned for additional updates on this year’s EEO-1 Data collection.