In an attempt to give contractors a final opportunity to object to release of their EEO-1 data, OFCCP has posted a list of contractors for whom the Agency will release the reports in response to the FOIA request filed by the Center for Investigative Reporting.

OFCCP’s e-mail message states:

To ensure the accuracy of our list, we are providing one final opportunity for entities to assert that their data should not be released because (a) they were not a federal contractor during the relevant time period; or (b) they believe they previously submitted an objection to the disclosure of their EEO-1 data.

OFCCP is encouraging contactors to consult the posted list. If you believe that your entity is incorrectly included on this list, you must respond to OFCCP’s office by e-mail at OFCCP-FOIA-EEO1-Questions@dol.gov as soon as possible, but no later than 11:59 p.m. EST on February 7, 2023.

OFCCP also has a dedicated Help Desk number (1-800-397-6251) and website with more information about the FOIA request.

In an update on its EEO-1 Component 1 Data Collection landing page, EEOC announced

“the 2022 EEO-1 Component 1 Data Collection is tentatively scheduled to open in mid-July 2023. Updates regarding the 2022 EEO-1 Component 1 Data Collection, including the opening date, will be posted to www.eeocdata.org/eeo1 as they become available.

Last year the reporting period began in April.

We will keep monitoring developments in this area and will update as more information becomes available.

It’s here! OFCCP has finally released the long-awaited latest Courtesy Scheduling Announcement List. As a reminder this is the list of contractors and their establishments that have been selected for upcoming audit by the Agency. This is the second CSAL issued under the leadership of OFCCP Director Jenny Yang.

Per OFCCP, the list comprises 500 contractors and subcontractors that

“OFCCP selected that are required to maintain an Affirmative Action Program (AAP) but did not complete their mandatory annual certification in the OFCCP Contractor Portal as of December 1, 2022”

OFCCP explains in its published its selection methodology that it generated the list

“by downloading federal contracts valued at $50,000 or more from the USAspending database it removed contracts awarded to federal, state, local, municipal, tribal, city, and
foreign governments, school districts, universities and colleges, and construction companies as well as healthcare contracts that fall under OFCCP’s Final Rule: Affirmative Action and Nondiscrimination Obligations of Federal Contractors and Subcontractors: TRICARE Providers, 85 FR 39834 (July 2, 2020). Contract records expiring on or before March 31, 2023, were also removed.”

Per the methodology, OFCCP considered contractor and subcontractor establishments with at least 200 employees as reported in contractors’ 2020 EEO‐1 filings, up from the 50 employee threshold used in the prior list

As a reminder, OFCCP’s Directive 2022-02: Effective Compliance Evaluations and Enforcement will govern OFCP’s administration of this CSAL and the audits initiated from it. This means OFCCP can start initiating audits from the list immediately. Generally, OFCCP District Offices schedule audits as they have capacity to handle them and as the audits from the previous CSAL have been exhausted. As a result, scheduling from this latest list will vary.

Given this, in connection with the fact that OFCCP has rolled back the automatic 30-day extensions of the data submission (after timely submission of the AAP), identified contractors should use the advance notice to ensure that their AAP compliance efforts are in order. OFCCP will now grant deadline extensions only in  “extraordinary circumstances.”

We are reviewing the list and methodology and will provide any additional updates or insights as we have them.

On the heels of the filing of the Center of Investigative Reporting lawsuit alleging OFCCP is not properly responding to its FOIA request for federal contractor 2016-2022 EEO-1 Type 2 Reports, the Agency is notifying companies for which it does not have a record of an objection, that the Agency intends to release the requested EEO-1 Data after the start of the new year.

In an e-mail message sent today OFCCP states:

The objection period is now closed, and we are sending this message to confirm we have not received an objection from your organization regarding release of the requested data. Because we have received no objection, we are providing your organization with notice that its Type 2 EEO-1 data is subject to release under FOIA, and OFCCP intends to release this data after January 2, 2023.  

The message goes on to provide instructions for organizations to contact OFCCP as soon as possible but no later than January 2, 2023 if they believe OFCCP has reached this determination in error (e.g., the company did in fact file objections by the deadline or believes it was not a federal contractor during the requested time period). We are aware of a number of contractors who have received this message despite filing objections during the 60-day objection period earlier this fall.

The notice goes further to explain:

If you object to release for any other reason, you may provide the basis for your objection, as well as any explanation as to why an objection was not submitted within the 60-day timeframe that ended on October 19, 2022, that OFCCP provided. If OFCCP determines that there is good cause for why your organization’s objection was not filed during the original 60-day objection period, OFCCP may, at its discretion, consider the substance of the late-filed objection.

In acknowledgement that OFCCP’s contact information may not be accurate, the notice states in bold, underline text that if the recipient of the e-mail is “not the appropriate contact for this notice, please forward this message to the appropriate department within your organization.

The contact information for OFCCP is:

National FOIA Office
Office of Federal Contract Compliance Programs
U.S. Department of Labor
Helpdesk Number: 1-800-397-6251
Email: OFCCP-FOIA-EEO1-Questions@dol.gov

On the eve of the Thanksgiving holiday, OFCCP has published proposed modifications to the Scheduling Letter and accompanying Itemized Listing. The deadline to submit comments on the proposed changes is January 20, 2023.

As a reminder, while OFCCP gives advance notice of audits through the CSAL, a contractor’s audit does not commence until it receives the official, OMB approved Scheduling Letter and Itemized listing which sets forth the data and documentation required for submission.

The last substantial revision to the scheduling letter occurred in 2014 when OFCCP added, among other things, individualized-level compensation data (Item 19) to the required audit submissions.

The Agency’s current proposed changes to the Scheduling Letter and Itemized Listing eclipse the 2014 addendums.

Just a few of the proposed changes include:

  • Item 19 (new) Documentation of policies and practices regarding all employment recruiting, screening, and hiring mechanisms, including the use of artificial intelligence, algorithms, automated systems or other technology-based selection procedures. (emphasis added)
  • Item 20(c)(previously Item 18)Promotions: For each job group or job title, provide the total number of promotions by gender and race/ethnicity, and identify whether each promotion was competitive or non-competitive. Provide documentation that includes established policies and describes practices related to promotions in the submission. Also include the previous supervisor, current supervisor, previous compensation, current compensation, department, job group, and job title from which and to which the person(s) was promoted. (emphasis added)
  • (new Item 20(d)(previously Item 18)Terminations: For each job group or job title, provide the total number of employee terminations, broken down by reason(s) for termination (e.g., retirement, resignation, conduct, etc.) including gender and race/ethnicity information for each. When presenting terminations by job title, also include the department and job group from which the person(s) terminated. emphasis added)

With respect to compensation, OFCCP is proposing several substantial modifications and additions, including a requirement mirroring the requirements set forth in the Agency’s recent Compensation Directive 2022-01.

  • Item 21 (previously Item 19) Employee level compensation data for all employees (including but not limited to full-time, part-time, contract, per diem or day labor, and temporary employees, including those provided by staffing agencies) as of (1) the date of the organizational display or workforce analysis and (2) as of the date of the prior year’s organizational display or workforce analysis. (emphasis added)
  • Item 22 (new) Documentation that the contractor has satisfied its obligation to evaluate its “compensation system(s) to determine whether there are gender-, race-, or ethnicity-based disparities,” as part of the contractor’s “in-depth analyses of its total employment process” required by 41 CFR 60-2.17(b)(3). Include documentation that demonstrates at least the following:
    • When the compensation analysis was completed;
    • The number of employees the compensation analysis included and the number and categories of employees the compensation analysis excluded;
    • Which forms of compensation were analyzed and, where applicable, how the different forms of compensation were separated or combined for analysis (e.g., base pay alone, base pay combined with bonuses, etc.);
    • That compensation was analyzed by gender, race, and ethnicity; and
    • The method of analysis employed by the contractor (e.g., multiple regression analysis, decomposition regression analysis, meta-analytic tests of z-scores, compa-ratio regression analysis, rank-sums tests, career-stall analysis, average pay ratio, cohort analysis, etc.).

The above are just a few of the highlights of the proposed changes. We are continuing to digest all of the proposed changes to the Scheduling Letter and Itemized Listing as well as the supporting statement and will be back soon with additional insights.

As we previously reported, in 2019 Will Evans from The Center for Investigative Reporting (CIR) submitted a FOIA request to OFCCP seeking all Type 2 Consolidated EEO-1 Reports filed by federal contractors from 2016-2020.  In response to the request, OFCCP published notice in the Federal Register pursuant to the Freedom of Information Act notifying contractors how they could submit objections to the release of their EEO-1 Reports.  Contractors were given until October 19, 2022 in which to make their individualized arguments as to why their EEO-1 reports were exempt from release.  Once received OFCCP was to undertake the process of determining which reports to release in response to the FOIA request.

On November 15, 2022, growing impatient with OFCCP’s apparent lack of progress of reviewing and responding to the request, CIR filed a complaint in the Northern District of California alleging OFCCP violated FOIA by not responding to CIR’s FOIA request within 20 business days. The complaint seeks injunctive relief ordering the release of the EEO-1 Reports within 20 days of the Court’s order on the matter.

According to the complaint, OFCCP was previously in communication with Mr. Evans, indicating the Agency “intends to release to [CIR] the names of those federal contractors that objected under an applicable FOIA exemption and whose data was removed from public release.”  At the time of the filing, CIR reported it had not received any such list, nor had it received any reports, including those from organizations who consented to disclosure or waived their right to withholding by not filing objections.

It remains to be seen whether the court will summarily order disclosure of the reports or if it will undertake a review of the case on the merits, including a review of the individualized basis on which each contractor argued its reports were protected from disclosure.

The Department of Labor has not yet responded to the complaint. We are monitoring the case and will alert with any further updates.

Last week, the EEOC and OFCCP announced the replacement of the “EEO is the Law” poster in favor of a new poster called the “Know Your Rights” poster.  Both EEOC and OFCCP have updated their websites accordingly.  Importantly, as of the date of this blog post, DOL had not, yet, updated its workplace poster webpage.  Printable copies for posting are available at both the EEOC and OFCCP sites. 

EEOC also provided FAQs via email, which are not available on the EEOC website, at least yet.

  Chief among the question answered is, by when must the new poster be posted?  The answer is  

a reasonable amount of time.

An additional question answered in the FAQs is whether the new poster also replaces the OFCCP Supplement. OFCCP clarified that and the answer is, yes.  We now need only the “Know Your Rights” poster. 

This new poster is not the only poster required for federal contractors.  OFCCP has created a Guide for all required posters and other notices, including the Pay Transparency Nondiscrimination Provision. 

So, time to renew your posters and make sure they are all in order. 

Since 2013, OFCCP has revised its Functional Affirmative Action Plan (FAAP) Directive several times, most recently to make it easier for covered federal contractors and subcontractors to obtain its permission to create AAPs by functional unit. 

AAP regulations require establishment AAPs but allow for the option to prepare plans by separate “functional units,” provided each functional unit has its own “managing official” and has 50 or more employees.   

Functional or Business Unit – A component within an organization. A functional or business unit should also have identifiable personnel practices or transactional activities specific to the functional or business unit (e.g., applicant flow, hires, promotions, compensation determinations, terminations, etc.) that are distinguishable from other parts of the contractor. Functions or business units should be identified and defined based on the organization’s existing business operations, personnel practices, and management structures.

While the Agency could amend the regulations to favor FAAPs over establishment plans, it has instead issued Revision 3 to Directive 2013-01 Functional Affirmative Action Programs – effective September 21, 2022 – as an enticement to FAAPs.  OFCCP also published FAQs with the revised Directive. 

In summary, Revision 3 says a contractor seeking a FAAP Agreement with OFCCP must:

Request a FAAP Agreement by submitting the ten items of information in Attachment A, including,

  • An organizational chart that clearly identifies all the proposed functional or business units to be covered by the requested FAAP and how they are related to each other within the corporation’s overall structure.
  • A narrative description of the “business or function” of each proposed FAAP unit and how it meets the definition of a functional or business unit set forth above.

Notably, “approval of FAAP agreement requests by OFCCP is not automatic… Generally, OFCCP makes this decision within 60 calendar days of the request if all the required information is provided. OFCCP may require additional time if more information is needed.” 

OFCCP also characterizes FAAP application as a “negotiation process” the “discussion items” for which are outlined in Attachment B

  • The reporting hierarchy of the functional or business units.
  • Personnel procedures, including recruitment, hiring, promotion, compensation, termination, and record retention and data analysis as they apply to each functional or business unit, including identification of units that have differing personnel or compensation practices.
  • How the contractor anticipates complying with the affirmative action requirements of Executive Order 11246, Section 503, and VEVRAA.
  • How each functional unit manages its human resources and equal employment opportunity responsibilities.
  • Notify OFCCP of FAAP changes to the FAAP structure within 60 days.  For dynamic organizations, this may be a considerable burden, requiring the contractor to essentially negotiate with OFCCP over a new FAAP structure each time there is a change to an existing functional unit. 

  • Notify OFCCP within 60 calendar days of any changes to the primary corporate contact identified in the FAAP Agreement. 
  • Request renewal of the FAAP Agreement at least 120 days prior to expiration of the five-year term of a FAAP Agreement.  The renewal process may essentially entail re-applying for a FAAP Agreement. 

It is undoubtedly true that securing a FAAP Agreement is more efficient than it has ever been, but in addition to the foregoing requirements, FAAPs pose another challenge because FAAPs may be larger in terms of workforce headcount and personnel activity than establishment plans.  Any time we must submit more data to the Agency during a compliance review, the risks increase.  Thus, a primary consideration for any contractor considering FAAPs is whether its organizational structure is amendable to manageably-sized functional units, each with its own managing official.

There are advantages to engaging in affirmative action via FAAPs because they may better align with how a contractor does business and conducts affirmative action.  However, Revision 3 does not entirely ease the administrative burden of applying for, updating, renewing, or maintaining a FAAP Agreement with OFCCP and does not address the main drawback to FAAPs:  size.

OFCCP has announced it is extending the deadline for contractors to respond to the Agency’s August 19, 2022 Notice of Request Under the Freedom of Information Act for Federal Contractors’ Type 2 Consolidated EEO-1 Report Data.  The new deadline by which affected contractors need to submit objections is October 19, 2022 to “ensure that Covered Contractors have time to ascertain whether they are covered and submit objections.”

In addition to extending the deadline, OFCCP has indicated it will now be emailing contractors that OFCCP believes are covered by this FOIA request, using the email address provided by contractors that have registered in OFCCP’s Contractor Portal and the email addresses provided as a contact for the EEO-1 report  in an attempt to assist contractors determine whether they are included in the universe of Covered Contractors during the requested timeframe.

As a reminder, OFCCP has created a OFCCP Submitter Notice Response Portal for submission of objections.  The website also contains FAQs and alternative methods for contacting OFCCP.

Specially, OFCCP indicates contractors may contact the OFCCP FOIA Help Desk by phone or email with any questions related to this process that it has not covered in its frequently asked questions.  The Agency asks that

[w]hen calling about technical issues or other questions, please specify that you are calling in reference to the Submitter Notice Response Portal. Only responses or inquiries for the purpose of responding to the Federal Register Notice should be sent to the email address below. Responses sent elsewhere may not be acknowledged or accepted. If a company has filed EEO-1 Reports in the past, the EEO-1 Component 1 Reports from 2016-2020 are available in the EEO-1 Online Filing System. If you still need to contact OFCCP to determine whether your company’s data is subject to this request, please email OFCCP at OFCCP-FOIA-EEO1-Questions@dol.gov.

 

OFCCP’s regulations were designed for the typical private sector contractor.  As a result, higher educational institutions, particularly colleges and universities, often struggle with fitting their “round pegs” processes into the “square holes” that OFCCP designed.  OFCCP’s Contractor Portal is no exception.

The Portal identifies employer establishments based on EEO-1 Reports filed from 2018.  But higher educational institutions file Integrated Postsecondary Education Data System (IPEDS) Reports, not EEO-1 Reports.  This disconnect left many educational institutions to apply their best judgement to define its establishments when registering in the Portal—and increased the burden on these contractors when creating new accounts within the Portal.

Perhaps to address such issues, on August 25, OFCCP issued updated guidance that better fit its requirements to higher educational institutions’ processes.  Under this new guidance, higher educational institutions should register in the Portal using their IPEDS Unit Identification, rather than the unit identifier from an EEO-1 Report.

The Agency has also updated its Contractor Portal User Guide with a new “Educational Institutions Registration” section and nine new “Figures” to assist educational institutions in the Portal’s administrative process.

OFCCP has also issued a new FAQ to assist educational institutions navigate the process:

4. How do educational institutions register in the Contractor Portal?

Educational institutions register using their Integrated Postsecondary Education Data System (IPEDS) unique identification number (UNITID or IPEDS ID) and Employer Identification Number (EIN). Educational institutions may develop a single AAP or multiple AAPs, depending on their organizational structure. To account for these flexibilities and possible variations in AAP development, educational institutions will certify compliance for all AAPs associated with their 6-digit IPEDS ID.

Interestingly, this procedural guidance also reinforces other substantive guidance for educational institutions.  For example, this new FAQ confirms the guidance from OFCCP’s Educational Institutions Technical Assistance Guide and campus-like setting guidance that campus environments may appropriately be considered separate establishments—therefore, permitting multiple AAPs to cover a single campus.

As a result, educational institutions may want to consider whether their operations would support—and their organizational objectives may strategically benefit from—developing multiple affirmative action programs and certifying each separately in OFCCP’s Portal.

If you have any questions about this new guidance or strategic approaches to educational institution affirmative action planning, please contact a member of our Affirmative Action Compliance, OFCCP and Government Contractor Practice Group.