On June 11, 2021 the U.S. Senate failed to approve advancement of the latest iteration of the Paycheck Fairness Act.  In a procedural cloture vote that fell along party lines the Act fell short of receiving the required 60 votes needed to move forward.

As a reminder, the version of the Act proposed in February 2021 would have required OFCCP to implement a survey to collect compensation data and other employment-related data (including hiring, termination, and promotion data) among other requirements.

As of now there is no federal pay data collection requirement, but the EEOC continues its review of the topic as employers await the Agency’s decision on whether, and in what form, pay data collection may take in the future.  In the meantime, the states like California and Illinois are picking up the mantle and forging ahead.

 

 

As previewed, on April 27, 2021 President Biden issued an Executive Order directing the minimum wage for certain federal contractors be increased to $15 per hour.  The Executive Order on Increasing the Minimum Wage for Federal Contractors states that the minimum wage for certain hourly workers be increased to $15 per hour for new or renewed contracts beginning January 30, 2022.  The Executive Order also dictates that wages for tipped workers be increased to $10.50 per hour, beginning January 30, 2022 (again for new or renewed contracts).

As justification for the increase, the Executive Order explains that

[r]aising the minimum wage enhances worker productivity and generates higher-quality work by boosting workers’ health, morale, and effort; reducing absenteeism and turnover; and lowering supervisory and training costs.  Accordingly, ensuring that Federal contractors pay their workers an hourly wage of at least $15.00 will bolster economy and efficiency in Federal procurement.

The executive order supersedes the Obama-era Federal Minimum Wage Executive Order but seems to have similar applicability – contracts for concessions, and those governed by the Service Contract Act, Davis Bacon Act as well as contracts in “connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public.”

Pursuant to the Executive Order, the Secretary of Labor, “shall, consistent with applicable law, issue regulations by November 24, 2021, to implement the requirements of this order.” As such, we will need to await the regulations before have the full understanding of applicability and implementing obligations.

As always, we will bring you updates as soon as they become available.

The White House has released a Fact Sheet detailing an expected Executive Order from President Biden raising the minimum wage for certain federal contractors to $15 an hour by January 2022.  The new executive order will expand upon the Federal Minimum Wage Executive Order 13658 signed by President Obama in February 2014, which applied to certain types of Service Contract Act contracts and limited other federal contractors.  We will need to await the text of the new Executive Order to understand the full implications and coverage of the raised wages.  The Fact Sheet previews that “the U.S. Department of Labor’s Wage and Hour Division and the Federal Acquisition and Regulatory Council will engage in rulemaking to implement and enforce this Executive Order.”

We will continue to monitor this situation and update with additional details once the executive order is released.

As anticipated EEOC has announced the opening of the 2019 and 2020 EEO-1 data collection portal today.  The deadline for submission will be Monday, July 19, 2021.  As a reminder, employers are to submit only Component 1 (race and gender) data for these two years.  There is currently no obligation for pay data (Component 2) submissions.

EEOC mailed out notification letters to contact persons and addresses on file.  EEOC states eligible employers that have not received a 2019 and 2020 EEO-1 Component 1 notification letter via U.S. mail should contact the EEOC’s Filer Support Team at FilerSupport@eeocdata.org for assistance.  Employers that have received the notification letter, may now create user accounts using the “Company ID” and “Passcode” provided in the notification letter.

EEOC has also announced that while the on-line portal is available starting today, the large file batch upload will not be available until May 26, 2021.  Until that time filers can use to online form to file.  However, the majority of filers will need to wait until the end of may when filers may upload data files through the EEO-1 Component 1 Online Filing System. The format of the uploaded data file(s) must follow the file layout(s) set forth in the EEOC-approved specifications available beginning Wednesday, May 26, 2021 at EEOCdata.org/eeo1.

EEOC  has also launched a revised website and encourages employers to visit EEOCdata.org/eeo1 for the latest filing updates and additional information.  Additionally,  employers can request assistance as well as find helpful resources, including fact sheets and FAQs through the Filer Support Center located at EEOCdata.org/eeo1/support.

 

 

OFCCP has updated the annual veteran benchmark for 2021.  The new benchmark is now set at 5.6%.  This is down 0.1% from last year’s mark of 5.7%.  The OFCCP relies on the annual national percentage of veterans in the civilian labor force to set the benchmark.

As a reminder, the benchmark is the percentage of total hires who are protected veterans that the contractor seeks to hire in the following AAP year.  The new benchmark is effective for affirmative action plans developed after March 31, 2021.

 

EEOC has finally announced the opening date for the collection of 2019 and 2020 EEO-1 data.  The portal is slated to open April 26 and employers will have until July 19, 2021 to file both years reports.  The agency has extended the duration of the time to file in recognition

of the continuing differential impacts of the pandemic on workplaces nationwide and the requirement to submit two years of EEO-1 data, the EEOC is extending the data collection period this year from 10 weeks to 12 weeks

EEOC directs filers to https://EEOCdata.org for updates and assistance with filing once the portal opens.

We will continue to update with any new develops as well.

On Monday, the U.S. Senate confirmed Marty Walsh as the Secretary of the U.S. Department of Labor under President Biden.  Secretary Walsh will, of course, also be newly-appointed OFCCP Director Jenny Yang’s new boss.  While we have anticipated a change in OFCCP direction under Director Yang, the changes, thus far, have been limited, perhaps because she was waiting for Labor Secretary’s confirmation.

In an interview with Bloomberg News, Director Yang has recently confirmed that pay equity will be the Agency’s top priory and that she disagrees with the ALJ’s decision in the Oracle pay discrimination case regarding appropriate pay equity analysis methodology; she has moved forward with AAP verification; and, perhaps most significantly to date, cancelled all the focused reviews scheduled by the prior OFCCP administration.

While numerous questions remain about the state of OFCCP under Director Yang, one our our first questions, and that of contractors, is if, and when, OFCCP will issue a new Courtesy Scheduling Announcement List (CSAL).  OFCCP has historically issued new CSALs in the fall and in late-winter or early spring.  Currently, OFCCP is working to complete the establishment audits from the March 2019 CSAL and the September 2020 update.   Secondary, to that is the looming question of whether federal contractors with cancelled focused reviews are simply “off the hook” or might OFCCP essentially issue a new CSAL converting some or all of those focused reviews to deeper-dive establishment reviews?  Those contractors who found themselves with Focused Reviews “erased” from the scheduling list are likely best served by anticipating audits in the near future.

On the topic of AAP verification, there is a question as to whether OFCCP will seek to use the portal for data collection at some point in the future.

In the area of pay, we are starting to see some OFCCP offices looking more into the issue of  “intersectionality” – potential discrimination based on the intersection of an individual’s race/ethnicity and sex:  pay or other discrimination against Black women; Hispanic men, etc.  Will intersectionality analyses become the norm under the current OFCCP administration?

As with any turnover in OFCCP administration, there will be change.  Stay tuned to our blog for updates on these and other changes OFCCP may now be poised to begin implementing.

In an announcement (EEOCdata.org) that flew under the radar and has, yet, to appear on the EEO-1 reporting webpage, or EEOC’s home page, EEOC now says the filing deadline will be in sometime in July.  When in July?  EEOC had not said:

The EEO-1 Component 1 data collection will open at the end of April 2021 and close in July 2021. The exact closing date will be posted when the data collection launches. Employers will be notified of additional details and how to access the online filing system in April.

The month of April will be busy as EEOC opens the filing window and publishes guidance materials, which may include whether we can report employees who self-identify as a non-binary gender.

This extension offers some reprieve for employers who have been simultaneously working on compliance with the new California Pay Data reporting and Colorado Pay Transparency obligations.

Stayed tuned to this blog and to EEOCdata.org for additional details.

 

As a follow up to the Inauguration Day recession of former President Trump’s Combatting Race and Sex Stereotyping Executive Order, the Biden Administration has issued a White House Diversity memo providing further direction on rolling back any remaining tenants of Executive Order 13950.

The memo, dated March 2, 2021, was published by the Office of Management and Budget (OMB) and

provides detailed instructions for agencies to ensure the complete rollback of agency actions that were taken pursuant to E.O. 13950.

Directed at federal agencies who took action to implement the rescinded Executive Order based on previous OMB guidance, the memo states

agencies must take appropriate actions to ensure the complete reversal of agency action implementing the now-rescinded OMB policy memoranda.

This includes removal of authorization for agencies to include language referencing the Executive Order in contracts and the treatment of contracts which may already include reference to the Order.

The memo also notes that The Office of Personnel Management will “rescind its guidance to Chief Human Capital Officers and Human Resources Directors issued on October 2, 2020, and cease reviewing diversity and inclusion training for compliance with E.O. 13950.”

In addition to reversing the Executive Order, the White House is taking the affirmative step of establishing a White House Gender Policy Council.  By Executive Order signed March 8, 2021, President Biden has directed the creation of the council to

establish and pursue a comprehensive approach to ensure that the Federal Government is working to advance equal rights and opportunities, regardless of gender or gender identity.

In recognizing that “advancing gender equity and equality is a matter of human rights, justice, and fairness” as well as “a strategic imperative that reduces poverty and promotes economic growth, increases access to education, improves health outcomes, advances political stability, and fosters democracy”, the administration believes “the full participation of all people — including women and girls — across all aspects of our society is essential to the economic well-being, health, and security of our Nation and of the world.”  The Gender Policy Council has a multi-faceted list of responsibilities and will involve cross-Agency participation and representation.

And President Biden is calling for quick action.  Within 200 days, the Council is ordered to develop and submit to the President a “government-wide strategy for advancing gender equity and equality in the United States.”

Stay tuned for updates on this, and other actions, by this Administration.

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.