BREAKING NEWS: Craig Leen Anticipated To Be New OFCCP Director

In an unexpected, but much awaited move, it is anticipated Craig Leen will be named as the new head of the Office of Federal Contract Compliance Programs (“OFCCP”).  While the Department of Labor has not formally confirmed or commented on this development, Leen’s appointment would come more than a year after Patricia Shiu departed the position in November 2016.  Since that time, Tom Dowd has held the position of interim Director at OFCCP.

Craig Leen currently serves as the City Attorney for Coral Gables, Florida.  During his tenure as the city’s top attorney, Leen reportedly “gained national attention for Coral Gables and its propensity to sue high-profile corporations and use the city’s legal muscle to pursue critics.”  In additional to his position with the City, Leen has also been an adjunct professor at Florida International University College of Law where Secretary of Labor, Alexander Acosta, to whom Leen would report, was Dean.
The City of Coral Gables’ biography of Lean notes he earned his law degree from Columbia Law School in 2000, where he was a Harlan Fiske Stone Scholar, and his undergraduate degree from Georgetown University in 1997, where he double majored in Government and Economics.
Little is known about Leen’s position on OFCCP regulations, policies and practices or his intended direction for the Agency.  We will report any updates or insights as soon as we learn them so stay tuned for the latest developments. . .

Minimum Wage for Federal Contractors Increased Effective January 1, 2018

Effective January 1, 2018, the minimum wage for federal contractors working on or in connection with contracts covered by Executive Order 13658 will be $10.35/ hour.  The announcement was made via posting in the federal register on September 15, 2017.  The wage rate for tipped employees will also increase to $7.25/hour.

This is the third increase to the minimum wage under the Executive Order which first went into effect January 1, 2015.  At that time the minimum wage was set at $10.10/hour.  In 2016, the rate increased to $10.15/hour.  The current rate, which went into effective January 1, 2017, is $10.20/hour.  Pursuant to the terms of the Executive Order, the U.S. Secretary of Labor reviews the rate on an annual basis to determine whether to increase the wage rate.

VETS-4212 Filing Deadline Extended

VETS has announced a 45-day extension to the 2017 VETS-4212 filing deadline.  The deadline has been extended from September 30, 2017 to November 15, 2017.  In a post on it’s website, VETS stated

NOTICE: In order to accommodate the needs of those impacted by Hurricanes Harvey and Irma, Federal contractors who file their VETS-4212 Reports by November 15, 2017 will not be cited for failure to file a timely Report or failure to comply with Federal regulations

As we previously reported, this year’s VETS reporting is unaffected by the changes to the EEO-1 reporting.  However, next year’s reporting can be filed using a snapshot pulled as of December 31, 2018 – which can also be used for the March 2018 EEO-1 report.

U.S. Senate Opposes OFCCP/EEOC Merger Proposal

In budget measures last week both the U.S. Senate and House signaled the proposed merger between OFCCP and EEOC will soon be nothing but a distant memory.  This action comes on the heels of a recent letter from OFCCP Acting Director Tom Dowd who also questioned the efficiency of the proposed merger in light of available alternatives.

In its approval of the U.S. Department of Labor’s appropriations bill for Fiscal Year 2018, the Appropriations Committee Report from the U.S. Senate reported the following: 

 The Committee rejects the budget’s proposal to begin plans to merge the OFCCP with the Equal Employment Opportunity Commission. The Committee strongly urges OFCCP to find efficiencies and cost savings, including the consolidation of offices, within its current budget structure. This should include a review of the current OFCCP office locations and infrastructure across the country and whether these offices align with current workload needs.

The committee directed OFCCP to report to the Committee with an inventory of current infrastructure and a plan to consolidate and right-size the agency 180 days after enactment of the Act.

On the House of Representative side of things, its recent appropriations bill does not directly address the merger but instead directs “OFCCP to submit a report to the Committees on Appropriations of the House of Representatives and the Senate within 160 days of enactment of this Act on its efforts and the status of implementing each of the GAO recommendations.”

As we previously shared, a September 2016 General Accounting Office report made six recommendations for OFCCP improvements, including to the audit-selection process.

While the wrangling over the OFCCP budget continues, it is important to note that pursuant to an ultimate resolution of proposals, OFCCP’s budget could be significantly reduced from the FY 2017 figure of $105 million.  President Trump proposed a budget of $88 million; the Senate currently proposes a budget of $103.5 million; and the House proposes $94.5 million.

Stay tuned as we continue to monitor the OFCCP/EEOC merger proposal and OFCCP’s budget.

 

 

Additional Information for 2017 EEO-1 Reporting

Following the announcement placing the EEO-1 pay data requirement on indefinite hold, the EEO-1 Joint Reporting Committee has clarified open questions regarding the details for 2017 EEO-1 Reports.  In an e-mail sent to report filers, the Committee clarified:

  • The deadline to file EEO-1 reports for 2017 is March 31, 2018;
  • The Reports must be based on a payroll period in October, November or December, 2017; and,
  •  Filers may use the same EEO-1 form used in 2016.

Keep in mind that EEOC has not yet fully updated its website (FAQs, Fact Sheet, etc.) to reflect this new information, although this clarification has been included on the home page.

As we mentioned in our prior blog post, that based on the recently received clarification from VETS, government contractors for their reporting in 2018 and going forward, will gain the efficiency of pulling a single data snapshot as of December 31 for reporting on both EEO-1 (filed by 3/31/2018) and VETS-4212 (filed between 8/1 – 9/30/2018) reports.  While the timing of the submission of the reports will remain different, employers looking for efficiencies can use a single snapshot as of the previous year’s December 31st.

Update on OFCCP/EEOC Merger

In a recent letter responding to an inquiry regarding the proposed merger between OFCCP and EEOCActing OFCCP Director Tom Dowd detailed the regulatory requirements to undertake a merger, which would take effect in 2019.  He also suggested interim alternatives exist to achieve the efficiencies intended by the merger, implying the proposed merger is unlikely to occur.

Director Dowd’s letter points out that consolidating the two agencies would require:

  • Congressional amendments to VEVRAA and Section 503 to shift enforcement authority to EEOC;
  • Followed by approval of regulations to implement those changes; and,
  • Reconciling the disparate enforcement mechanisms of the two agencies.

Director Dowd states in his letter:

Bridging these and other differences will likely prove time consuming and could delay the expected FY 2019 start for the proposed consolidation, which would result in the concomitant delay in the realization of the intended benefits.

The existing Memorandum of Understanding (MOU) between EEOC and OFCCP could be an alternative vehicle for achieving the efficiencies behind the proposed merger in the short term, says Director Dowd, noting the MOU provides for “contemporaneous opportunities to improve effectiveness and efficiency.”  The MOU currently allows the two agencies to coordinate the handling of complaints, as well as share information and data.

Director Dowd highlights that the MOU provides the agencies with the opportunity to

 be able to achieve desired reforms in the near term, without immediate recourse to legislative and regulatory action.

As discussed in our previous posts, there is widespread opposition to the proposed merger.  More active coordination between OFCCP and EEOC, particularly in the area of systemic discrimination cases, could also raise concerns for contractors.  This is likely not the last we will hear about the proposed merger so make sure to check back for updates.

BREAKING NEWS: Pay Data Reporting Obligation Postponed Indefinitely

We have learned the Office of Information Regulatory Affairs (OIRA) has decided to postpone indefinitely effectiveness of the newly created pay data reporting component of the annual EEO-1 report.  In a letter addressed to Acting EEOC Chair, Victoria Lipnic, OIRA explained it has stayed the effectiveness of the new obligation to take time to review data collection requirements and burden estimates associated with the new data reporting obligations.

The letter confirmed EEOC may continue to use the previously approved form to collect race/ethnicity and gender information.  In response, the EEOC issued a statement whereby it confirmed

[t]he previously approved EEO-1 form which collects data on race, ethnicity and gender by occupational category will remain in effect. Employers should plan to comply with the earlier approved EEO-1 (Component 1) by the previously set filing date of March 2018.

This means no EEO-1 report is due in 2017 and the report filed in March 2018 will include only race/ethnicity and gender information, not pay data or hours worked.

We will continue to monitor this situation for further developments so stay tuned for updates.

 

OFCCP Announces Dates for Contractor Town Hall Meetings

Following up on Interim Director Tom Dowd’s recent commitment for more agency transparency and communication, OFCCP has announced three upcoming town hall meetings.  In its announcement, OFCCP stated the purpose of the town halls were to obtain contractor views and learn about contractor experiences implementing and managing nondiscrimination and equal employment opportunity requirements to allow OFCCP “”to enhance the scope and quality of [its]compliance assistance through contractor outreach and education materials.”  The announcement also shared that OFCCP is redesigning all of its “fact sheets, educational webinars, frequently asked questions, and staffed Help Desk to assist contractors with understanding and implementing these obligations.”

The meetings will be open to the public, but registration will be required.  The registration details are as follows:

1. Date: September 19, 2017
Time: 8:30 AM to 1:00 PM
City Location: Washington, DC
Registration Link: https://www.eventbrite.com/e/ofccp-compliance-assistance-town-hall-registration-35797146228

2. Date: September 26, 2017
Time: 8:30 AM to 1:00 PM
City Location: San Francisco, California
Registration Link: https://www.eventbrite.com/e/ofccp-compliance-assistance-town-hall-registration-36208818551

3. Date: September 28, 2017
Time: 8:30 AM to 1:00 PM
City Location: Chicago, Illinois
Registration Link: https://www.eventbrite.com/e/ofccp-compliance-assistance-town-hall-registration-36209277925

 

EEOC Update from ILG National Conference

Day two of the 2017 ILG National Conference is in the books.  Conference attendees had a variety of sessions to choose from that covered topics across the spectrum.  The morning, however, kicked-off with a much anticipated keynote address from Acting EEOC Commissioner Victoria LipnicCommission Lipnic spoke at last year’s conference, prior to being appointed Acting Chair, where she shared her thoughts about the role of EEOC, it’s goals and her personal thoughts on the EEO-1 pay data reporting tool.

And she did much the same this year, spending a good portion of her allotted time speaking on the need of employers to address ageism in the workplace.  But she did not shy away from recognizing the “most important thing” conference attendees wanted to talk about was the EEO-1 pay data reporting tool. Giving a nod to the historical significance of the Alamo, Commissioner Lipnic questioned whether she was Davy Crockett or The Mexican Army.

All joking aside, Commissioner Lipnic acknowledged that “time is of the essence” and contractors need to know soon what will be done with the report so they can start making investments and system changes necessary to comply.  She reported that in response to a petition by the U.S Chamber, the Office of Management and Budget is re-evaluating the burden estimate associated with the revised EEO-1 report.  In connection with its review, Commission Lipnic shared she has written to the newly appointed head of the Office of Information and Regulatory Affairs (OIRA), the office within the OMB tasked with review of the report, pointing out the impeding March 2018 reporting deadline, requesting OIRA have a response by the end of month – before the Labor Day holiday.  In Commissioner Lipnic’s words

“I have done everything I can think of to do to get people to focus on this.”

She went on to share that while she continues to believe the regulation is a “poster-child” for the kind of regulation the President campaigned against, she believes it is a “false choice” that if you are “not in favor of this [regulation] that you are not in favor of equal pay.”

Recognizing at the beginning of her remarks that the Agency is operating in a

“deeply divided country where so many people feel left out,”

and that this is a “critical time” for the country and the Agency, Commissioner Lipnic assured the audience at the conclusion of her address that the Agency’s core mission and core value’s remain.

As a side note, speculating on the topic of the proposed merger between EEOC and OFCCP, Commissioner Lipnic said she did not think it would happen.  No official decision, either way, has been reported.

Greetings from San Antonio – Home of the 2017 ILG National Conference

Hello everyone and welcome to Texas!

While activities technically started yesterday with pre-conference sessions and the vendor reception last night, today is the official start of the 2017 ILG National Conference.  The conference kicked-off with a live Mariachi Band and festive dancers in brightly colored traditional outfits – a great welcome to San Antonio for all in attendance.

The morning’s keynote address was given by OFCCP Interim Director Tom Dowd.  Tom mentioned briefly the Agency’s work to transition under the Trump administration, stating the process was still on-going and stated only that he’s been asked to speak to both the Senate and the House regarding the proposed merger of OFCCP with EEOC, without commenting further.

Tom spent the majority of his address emphasizing his vision for the agency to work harder on compliance assistance and communicating with the contractor community. For the first time in ILG conference history, Tom asked all of the OFCCP Regional Directors to attend the conference so they could hear from the contractor community directly.

Transparency and direct communications with contractors were two big themes of Tom’s speech which fed into his larger goal for the agency – to improve its relationship with contractors.  Tom shared several of his visions for the agency, including a training program, where by contractors could “earn” a pass from compliance reviews for 2 -3 years if they successfully completed a yet-to-be-developed agency training program.  Another is the idea to bring back public acknowledgement for contractors that demonstrate commitment to EEO.  Throughout his speech, Tom reaffirmed that a “vast majority’ of contractors – approximately 98% – are in compliance.

In closing, Tom emphasized his desire to use the conference as a way for OFCCP and the contractor community to interact – asking specifically for contractor suggestions and comments on creative and innovative ways for the two groups to work together.  This week should offer lots of opportunities to do just that.

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