UPDATE: EEOC Has Until April 3 to Advise About Pay Data Reporting

By Laura A. Mitchell on

In the continually developing story of employee pay data reporting, the Judge who overturned the stay on the EEO-1 reporting obligation has granted the government until April 3 to inform employers as to whether they will be required to report pay data as part of this year’s EEO-1 reporting cycle, which opened Monday, March 18th and runs through May 31 – at least currently.

At the request of Plaintiffs, the parties in the case of National Women’s Law Ctr. V. OMB, No. 17-2458 (D.D.C) appeared before the Judge today in an effort to better understand EEOC’s work towards complying with the Judge’s order to immediately start collecting the required pay data.  The only communication from the Agency since the Judge’s ruling, was a communication on March 18th announcing the opening of the reporting portal for the previously collected Component 1 (race and gender) data.  The announcement reported the agency was “working diligently” to comply with the Court order with respect to collecting Component 2 (pay data and hours worked) and “will provide further information as soon as possible.”  Per the Judge’s order today, they have two weeks to provide that information.

Stay tuned for the next update.

OFCCP Launches Section 503 Focused Review Informational Webpage

By Laura A. Mitchell and James D. Mackey on

In August 2018, OFCCP released Directive 2018-04 announcing the Agency’s implementation of Section 503 Focused Reviews. Long a priority Director Craig Leen, the Agency is hopeful the reviews will improve compliance with the regulations and promulgate EEO for Individuals with Disabilities. OFCCP has indicated it will start scheduling the Section 503 Focused Reviews with the Agency’s upcoming round of CSALs.

When first announced, there were many questions surrounding what information OFCCP would request while conducting a Focused Review. Late in 2018, OFCCP obtained approval for an abbreviated Section 503 Scheduling Letter, confirming the Agency would be requesting a subset of data provided in a traditional review during the focused reviews.

On Friday, OFCCP provided additional insight and guidance with the launch of a new Section 503 Focused Review landing page. In addition to providing a sample of the Focused Review Scheduling Letter, the website also includes a list of employer best practices and resources as well as a set of FAQs.

Here are some of the highlights of the FAQs:

  • At least initially, OFCCP will conduct Section 503 Reviews at a contractor’s corporate headquarters. 
  • OFCCP will not review the contractors Executive Order 11246 AAP during a Section 503 Review; however, submission of the EO 11246 AAP (not including supporting data e.g. Items 18 and 19 of the EO Scheduling letter) is required as part of the initial submission.
  • OFCCP will not schedule contractors for other compliance reviews while undergoing a Section 503 Review.
  • OFCCP will not require submission of personnel data for a Focused Review other than data required by 41 CFR §60 741.44(k). After reviewing data, OFCCP may request applicant flow data for job groups containing applicants with disabilities.
  • Compliance officers may request compensation and promotion data for individuals who identified as having a disability, are known to have a disability, or have requested a reasonable accommodation.

OFCCP has announced that it would release the next round of CSALs in the second half of March. OFCCP will publicly release these CSALs on its website with actual scheduling letters to follow by mail beginning 15 days later.

We’ll continue to monitor and report on the latest developments in the coming weeks so stay tuned.

BREAKING NEWS: Judge Vacates Stay of EEO-1 Pay Data Reporting Tool

By Laura A. Mitchell on

As Bloomberg Law first reported, the U.S. District Court for the District of Columbia has found the government did not have proper justification to stay implementation of the EEOC’s pay data collection tool.  As a result, the court has vacated the 2017 stay and ordered

the previous approval of the revised EEO-1 form shall be in effect.

The order was made at the conclusion of the court’s 41-page decision in the case of National Women’s Law Center v. Office of Management Budget.

After a delay because of the government shut-down, EEOC is slated to soon open the reporting portal for the 2018 EEO-1 Reporting period.  Significantly, the portal was to be opened to receive EEO-1 data without employer pay data and employers have not been preparing data to submit pursuant to the stayed Component 2 (pay data collection) portion of the report.  It is unknown at this point the impact of the court’s decision on the current reporting period.  It also remains to be seen whether the government will seek to appeal the court’s decision.

This is an important and developing story.  We will continue to share additional details or insights as we learn them, including any information from the EEO-1 Joint Reporting Committee regarding the current reporting period.

Head’s-Up: OFCCP to Post CSAL in Mid-to-Late March 2019

By Laura A. Mitchell and Chris Chrisbens on

OFCCP announced Friday that it will post a new Corporate Scheduling Announcement List (CSAL)(formerly known as Corporate Scheduling Announcement Letter or Courtesy Scheduling Announcement Letter) in “mid-to-late March.”  As previously announced, OFCCP now makes the CSAL publically available and, for the first time, OFCCP will send no letters to federal contractors – thus the changed reference to Corporate Scheduling Announcement List instead of “letter”.  Instead, the March 2019 CSAL will appear only in OFCCP’s FOIA Library. 

However, when it posts the CSAL, OFCCP says it will provide us all with an email notice.  That is, if you’ve subscribed to OFCCP’s email updates, which OFCCP encourages all federal contractors to do.  If you would like to be on OFCCP’s listserv, you can subscribe here.  We will also be continuously monitoring OFCCP’s site and will post any updates as we see them.

Importantly, with the advent of the electronic CSAL, OFCCP confirmed the new list

will include Section 503 Focused Reviews as outlined in [OFCCP’s] Focused Review Directive (DIR 2018-04) and compliance checks as outlined in [OFCCP’s] Affirmative Action Program Verification Initiative Directive (DIR 2018-07).  

As with the last CSAL, OFCCP will not send actual scheduling letters initiating audits for another 45 days from publication of the CSAL list.  Thus, contractors have at least 60 days to get prepared. 

As always, stay tuned. 

 

OFCCP Releases New Enterprise-wide Voluntary Compliance Program

By Laura A. Mitchell on

On the eve of St. Valentine’s Day, OFCCP is wanting contractors to feel the love.  In its fourth directive of fiscal year 2019, OFCCP has unveiled a Voluntary Enterprise-wide Review Program, otherwise referred to as VERP.  Directive 2019-04 states VERP

enables OFCCP to blend its compliance evaluation and compliance assistance activities to work with high‐performing contractors toward a mutual goal of sustained, enterprise‐wide (corporate‐wide) compliance, outside of OFCCP’s neutral establishment‐based scheduling process.

The directive highlights that the new program is intended to compliment the goals of the Agency’s Early Resolutions Procedures Directive released in December of last year.

While the directive does not formally set out the requirements of the program, it provides the “framework” by which OFCCP will develop and implement the program.

First, the program will recognize two tiers of contractors, with the top-tier having a more stringent set of requirements.  The framework contemplates that Contractors qualifying for the top tier can remain in the program for a period of five years and will then be re‐evaluated to stay in the program.  The subsequent tier provides for a three-year participation timeframe with compliance assistance to progress to the top-tier.

According to the framework set out in the directive,  if successful, the program will officially recognize the outstanding efforts of its top‐performing contractor participants and participants will be removed from the pool of contractors scheduled for compliance evaluations.  However, participation is not without cost.  Entities interested in participating in the process will need to apply (beginning in FY 2020) and allow OFCCP to audit their headquarter location as well as a sample or subset of their establishments.  The framework did not specify how many additional audits would be scheduled.

The Directive goes on to state that in order to remain in VERP, OFCCP will

expect contractors to maintain a workforce free of discrimination or other material violations, and provide periodic reports and information to OFCCP through which OFCCP can confirm these efforts.

If a contractor applies for VERP recognition but is not successful, OFCCP will return to the pool of contractors that OFCCP may schedule for compliance evaluations through OFCCP’s neutral selection process, though the Agency is careful to note the contractor would not be immediately scheduled for review.

Ultimately, OFCCP believes this new program will provide “meaningful cost‐saving compliance incentives to federal contractor participants, and recognizes that some contractors excel in their corporate‐wide compliance with OFCCP’s requirements.”

We will continue to report as we learn more of the details and analyze the implications of this new program, so stay tuned.

OFCCP Receives Approval for Section 503 Focused Review Scheduling Letter

By Laura A. Mitchell and James D. Mackey on

Last August we reported on OFCCP’s announcement  (DIR 2018-04) that starting in 2019 it would be conducting truncated “Focused Reviews” that centered on compliance with AAP requirements under Section 503 (Individuals with Disabilities) and VEVRAA (Veterans).

If everything goes according to OFCCP’s plan, the next round of CSALs will include notices for these more limited Focused Reviews under Section 503.  In total, OFCCP expects to conduct 500 focused reviews in FY2019.  While Director Leen had previously indicated the CSAL list would be released in February, we’ve learned he now believes it will likely not be released until further into the Spring.

In preparation for this, OFCCP requested approval for a “Non-material change request” for a Scheduling Letter for Focused Reviews (OMB form 1250-0003). OMB approved the new form in late November.

Takeaways:

  • The revised Scheduling Letter contains no additional formal requirements for contractors to complete. The Focused Review Scheduling Letter is simply a pared down version of the standard OFCCP Scheduling Letter
  •  The revised Scheduling Letter approved by OMB only includes requests for Section 503 data with the notable exception of requesting a copy of the contractor’s Executive Order 11246 affirmative action plan (not including itemized listing data) as well as 3 years of EEO-1 reports. 
    • It is not clear how these two specific items will further OFCCP’s review of a contractors compliance with the disability regulations as they pertain to, and contain only, race and gender information.
  • The Focused Review Scheduling Letter is set to expire on 6/30/2019.  This is likely because the standard OFCCP Scheduling Letter must be renewed/reviewed at the same time as part of the regular 3-year process.
  •  According to the Agency’s request to OMB, “OFCCP will not conduct a greater number of compliance evaluations as a result of the implementation of the focused reviews as they will not be conducted in addition to, but in lieu of, compliance reviews in a number of instances.”

Overall, this comes as good news for contractors who are trying to proactively prepare for a potential focused review.  Though our advice is not to lose focus and to continue to evaluate your compliance.

EEO-1 Filing Deadline Extended

By Laura A. Mitchell and Chris Chrisbens on

The EEOC announced on February 1, 2019 that due to the partial government shutdown, the 2018 EEO-1 filing  portal will open “in early March” for filing of 2018 reports.  As a result of the delayed opening, EEOC has extended the filing deadline by two months.  The new deadline by which to file is May 31, 2019.

As a refresher, the typical EEO-1 filing deadline was changed to the first quarter of each year (from the third quarter) in connection with the proposed changes to add compensation information the EEO-1 report back in 2016.  Though the proposed changes to the report have been postponed indefinitely, the changes to the EEO-1 reporting deadline remain in effect. 

 

OFCCP Opinion Letters – The Agency Wants To Answer Contractors’ Questions

By Laura A. Mitchell and Chris Chrisbens on

As part of OFCCP’s continuing efforts at transparency, the Agency in late-November 2018 issued a Directive stating it would develop “a dynamic and searchable publically available source of Help Desk questions and answers to assist contractors.”  Moreover, the Directive announced OFCCP would issue Opinion Letters to provide guidance on specific topics, either in response to Help Desk inquiries or in response to direct requests for Opinion Letters.     

 OFCCP is now actively seeking input from federal contractors and their attorneys.  The communication asked folks to  

Please reach out through the Help Desk portal to submit suggestions for issues that you would like to see addressed in specific Opinion Letters.  You may also email OFCCPOpinionLetters@dol.gov or mail your suggestions to the address below.

OFCCP intends to make responses to at least some of the Help Desk inquiries public so through the database and thus encourages contractors and their counsel to participate so everyone can benefit. Help Desk question and answer database will be anonymous, as will Opinion Letters based on Help Desk questions.  Direct requests for Opinion Letters are not entirely anonymous.  Based on information available about the process, a contractor or lawyer requesting an opinion must at least supply Zip Code, Email or Phone Number, State, and County information.  That’s not to suggest that providing identifying information will have any negative consequences.  However, OFCCP has said it will consider whether a contractor acted consistently with an Opinion Letter or Help Desk answer when determining whether to issue a violation.  Thus, it will be important for contractors to stay up to speed on the Agency’s publicly available answers as well as consider the implications of requesting a response to a directed inquiry.   

We will continue to monitor developments in this area and will provide updates with any new or additional information.

 

OFCCP Looking to Hire for Ombudsperson

By Laura A. Mitchell and James D. Mackey on

As OFCCP heads into 2019, with an official Director in place, the Agency is looking towards implement many of its new Directives released in the second half of 2018. Back in September, we discussed OFCCP Directive 2018-09: OFCCP Ombud Service, one of the number of policy changes OFCCP hoped to develop to increase a sense of transparency and impartiality between it and government contractors. On December 21, OFCCP took the first step in following through on this plan by posting an opening for the Ombud position.

Developed in response to a series of stakeholder meetings in 2017 and 2018, OFCCP describes the role of the Ombud as a liaison between the Agency and the regulated community who will:

  • Listen to external stakeholder concerns about OFCCP matters and suggestions for improvements;
  • Promote and facilitate resolution of OFCCP matters at the district and region office level;
  • Work with OFCCP district and regional office as a liaison to resolve certain issues after stakeholder have exhausted district and regional office channels;
  • Refer stakeholders to the OFCCP Help Desk for routine compliance and technical assistance inquiries;
  • Accept and review matters referred directly by the national office; and
  • Have the discretion to reject a referral in appropriate circumstances.

The Ombud position will be housed in the Washington D.C. Office and will be a career staff position, meaning that the eventual hire may have considerable independence as he or she would not be automatically replaced when OFCCP leadership changes. The position is scheduled to be open until the end of the week – January 18 – so make sure to apply if you are interested.

We will continue to cover the development and rollout of this and other new OFCCP Directives as they are implemented so as always, stay tuned.

Craig Leen to Officially Head Up OFCCP

By Laura A. Mitchell on

As reported by Bloomberg Law, and reflected on OFCCP’s website, former OFCCP Acting Director Craig Leen has now been formally named Director of OFCCP.  Since being placed in the acting role this past Summer when the position was vacated by Ondray Harris, Leen has overseen the release of ten new directives and has worked tirelessly to rebuild the relationship with the Agency and the contractor community focusing on four pillars of transparency, certainty, efficiency and recognition.

We extend our sincere congratulations to Director Leen and look forward seeing his continued transformation of the Agency.

LexBlog