As we previously reported , EEOC has filed notice asking for renewed approval to collect EEO-1 Component 1 race, gender and ethnicity workforce data for the next three years (2019, 2020 & 2021), but is not seeking renewed authority to collect Component 2 pay data and hours worked. To be clear, this filing does not impact the current obligation employers have to submit 2017 and 2018 pay data by September 30, 2019.

EEOC’s authorization to collect any EEO-1 data (Component 1 or Component 2) expires on September 30, 2019.  Thus, the Agency has submitted the current information request because it needs approval to continue to collect Component 1 data.  Confusingly, Judge Chutkan ordered in National Women’s Law Center, et al. v. Office of Management and Budget, et al., that EEOC’s authority to collect Component 2 pay data will expire no later than April 5, 2021.  This Order, however, is currently at the center of a legal appeal.  But for the court’s order, or in the event the court’s order is overturned on appeal, EEOC’s authority to collect Component 2 data will likewise expire on September 30, 2019.

As a result of the two expiration dates, and the pending litigation, EEOC is asking the Office of Management and Budget (OMB) to separate approval of Component 1 data collection from Component 2 collection so it can continue to collect Component 1 data while it takes time to assess the utility and burden associated with the Component 2 collection.

According to its notice, EEOC has serious doubts about the previously reported burden on employers to collect and file Component 2 data.  It seems EEOC has discovered the previous burden estimate was

an extremely low estimate of the burden on employers. . . EEOC now concludes the burden estimate associated with the EEO-1 is higher than it has previously estimated.

Because it is concerned the actual burden may outweigh the value of the data, the Agency has elected to pause so it can “balance the utility of the data to its enforcement programs against the burden the data collection as structured imposes on the employers who must submit it.”

Therefore,

[t]he Commission now concludes that it should consider information from the ongoing Component 2 data collection before deciding whether to submit a pay data collection to OMB. At this point in time, the unproven utility to its enforcement program of the pay data as defined in the 2016 Component 2 is far outweighed by the burden imposed on employers that must comply with the reporting obligation. Therefore, the EEOC is not seeking to renew Component 2 of the EEO-1.

This admission does not, however, mean EEOC has necessarily made any decision regarding whether it will collect some form of Component 2 data going forward.  However, it appears EEOC will not seek approval to collect any additional Component 2 pay data in the near future, either pursuant to its existing authority or pursuant to approval following a new request for OMB approval.  Rather, EEOC’s notice suggests it will take a step back, analyze the 2017 and 2018 to determine if and how it might efficiently collect valuable employer pay data without unduly burdening employers, and then move forward from there.  How long it may take EEOC to sort this all out is, at this point, anyone’s guess.

Please check back for updates as the saga of EEO-1 Component 2 reporting continues at EEOC, OMB and the courts.

As previously reported, EEOC is expected to publish tomorrow a Notice of Information Collection regarding EEO-1 Reporting.  An advance copy of the notice reports that

the EEOC is not seeking to renew Component 2 of the EEO-1.

Instead, the Commission has concluded it should consider information from the current Component 2 collection before deciding whether to submit a renewed pay data collection to OMB for approval.  The Agency feels

at this point in time, the unproven utility to its enforcement program of the pay data as defined 2016 Component 2 is far outweighed by the burden imposed on employers that must comply with the reporting obligation.

While the EEOC has decided not to seek extension of Component 2 at this time, it does intend to continue to collect Component 1.

This is a developing story – we will be back soon with more details.

In its required status report, filed pursuant to Court Order, EEOC announced it is preparing a Notice of Information Collection – Employer Information Report (EEO-1) to seek authorization from the Office of Management and Budget (OMB) for the collection of pay data going forward.  As a reminder, OMB approval for the data collection expires September 30, 2019 – the same deadline imposed by the court for the current reporting period for the EEO-1 Component 2 data. Once published in the Federal Register, EEOC states “the public will be invited to submit comments to the Commission.”  Almost assuredly, the Notice will request employers submit information regarding the utility and burden associated with the data collection, as EEOC Commissioner Vicki Lipnic recently discussed.

EEOC also reported that approximately 13.4% of eligible filers have already submitted their pay data.  In a previously filed, interim report, EEOC suggested the filing threshold should be deemed complete, and the Court’s Order for collection of the data deemed satisfied, once EEOC received data from 72.7% of eligible filers.  According to EEOC, there are approximately 37,000 filers “who have neither contacted the NORC Component 2 Help Desk, registered for access to the online portal, or submitted data.”  The Agency reported it will begin attempting to contact these filers via phone.

As always, we will continue to monitor any new developments in this area and provide updates with any new information.

Avid readers have seen that OFCCP has been busy this summer.  In August alone, the Agency attended the 2019 ILG National Conference in Milwaukee, issued FAQs on student workers, proposed a new rule regarding religious exemptions, introduced a new Ombudsperson, opened a contractor assistance portal and issued multiple technical assistance guides.  But, OFCCP is not content merely coasting through the end of its fiscal year (on September 30).

Instead, OFCCP continues to issue additional guidance to contractors.  In a cleverly-titled “Back to School Update”, OFCCP unveiled new FAQs addressing preparation of AAPs that cover a campus environment.  The Agency noted common employers with campus environments include educational institutions, hospitals, and information technology companies, among others.  When an employer has multiple buildings or “work locations” in close proximity, there has often been an unresolved question – is it one establishment or many?

The Agency’s official position has been “[i]n appropriate circumstances, OFCCP may consider as an establishment as a single building or several facilities located at two or more sites when the facilities are in the same labor market or recruiting area.” But the recent FAQ’s provide additional guidance.

Specifically, OFCCP has clarified that employers may combine multiple buildings into a single establishment AAP, if the operations across those buildings are interconnected.

Similarly, contractors may conclude various buildings within a campus environment are operationally distinct and should be included in separate AAPs.   The FAQs provide a guideline of factors to assist contractors in assessing their situation.

This is not to be confused with the Agency’s Functional Affirmative Action Plan (FAAP) program which offers an alternative to establishment based affirmative action plan development.

These FAQs are new, so it may take some time to see them in action, but contractors with campus environments may want to evaluate if this new guidance provides a good affirmative action plan alternative for their organization.

Let us know if we can be of any assistance digesting how this guidance could be used in your AAP program.

As the Agency is ramping up its enforcement efforts on behalf of individuals with disabilities, OFCCP is offering another form of technical assistance to contractors.  On September 11, 2019 OFCCP will be hosting a Section 503 Focused Review webinar during with the agency will touch upon:

  • the scheduling process,
  • the focused review process,
  • common problem areas, and
  • best practices.

OFCCP will also open the up the event to questions.  Don’t worry, if you are unable to make it on September 11, OFCCP has said it will make a recording of the webinar available for review on the Section 503 Focused Review Landing Page.

In addition to providing technical assistance, OFCCP is also wanting to recognize contractors with “best practices” for Excellence in Disability Inclusion.  In an effort to allow more contractors to apply for the award, OFCCP has extended the application date to be considered for the Agency’s Excellence in Disability Inclusion Award to November 1, 2019.  In the Agency’s words

[t]ake advantage of this unique opportunity to have your business recognized for its commitment to supporting Americans with disabilities.

As scheduled, EEOC and NORC have now provided employers with a way batch upload their EEO-1 Component 2 pay data.  Instructions and details are provided on the More Info Page on the NORC EEO-1 Component 2 website.  Specifically, the following documents are currently available:

The file upload functionality is accessible after securely logging into the Component 2 EEO-1 Online Filing System via the LOGIN to File page.

Additionally, there are new FAQs available on the website, including questions and corresponding answers on topics such as PEO employers, spinoffs and reporting on non-binary gender employees.

Unlike the EEO-1 Component 1 report, the new FAQs state employers are allowed to report data for non-binary gender employees through a manual narrative input in the comment box on the Certification Page.

The FAQs are also now available in a downloadable pdf format for ease of future use and reference.

 

As previewed in the Spring regulatory agenda, the Office of Federal Compliance Contract Programs (OFCCP) has proposed a new rule to clarify aspects of a religious exemption available to federal contractors. In the proposed rule, the agency said it intends to address concerns from religious organizations that ambiguity in the exemption left them reluctant to participate in federal contracts.

The proposed rule was published August 15 in the Federal Register. OFCCP will accept public comments on the rule for 30 days, until September 16, 2019.

The rule would clarify the religious exemption in Executive Order 11246, which includes anti-discrimination obligations for federal contractors. The exemption allows religious organizations to prefer individuals of a particular religion, while still requiring adherence to other anti-discrimination provisions. The rule comes one year after OFCCP issued a Directive reminding its staff to tread lightly when dealing with religious contractors and “proceed in a manner neutral toward and tolerant of . . . religious beliefs.”

As proposed, the rule would clarify that:

  • The exemption covers “not just churches but employers that are organized for a religious purpose, hold themselves out to the public as carrying out a religious purpose, and engage in exercise of religion consistent with, and in furtherance of, a religious purpose.”
  • Religious employers can condition employment upon acceptance of, or adherence to, a religious tenet, provided that they do not discriminate based on other protected bases.
  • Define terms such as “Religion,” “Particular Religion,” and religion “As understood by the employer.”

The rule does not explicitly mention sexual orientation or LGBTQ protections. However, it does cite Masterpiece Cakeshop, the recent U.S. Supreme Court decision involving a business owner’s decision to deny service to gay customers based on the owner’s religious beliefs.  In a news release, OFCCP said it considered that case while drafting the rule, in addition to other Supreme Court cases, statutes, and executive orders.

Today’s proposed rule helps to ensure the civil rights of religious employers are protected,

said Patrick Pizzella, acting U.S. Secretary of Labor.

“As people of faith with deeply held religious beliefs are making decisions on whether to participate in federal contracting, they deserve clear understanding of their obligations and protections under the law.”

The proposed rule also comes at the same time it has been reported by Bloomberg Law that the Department of Justice and EEOC are seemingly taking differing positions on LGBTQ rights before the Supreme Court.

Jackson Lewis will continue to monitor developments related to the proposed rule.

Though we may be in the height of summer, there is no slowing down for OFCCP.  Following last week’s ILG National Conference, OFCCP has continued to release additional guidance and assistance for contractors.  Most recently, OFCCP has introduced its Ombudsperson and unveiled a Contractor Assistance Portal.

Ombudsperson

In September 2018, OFCCP first announced it would be reviving the role of the Ombudsperson.  After a lengthy search, OFCCP has selected Marcus Stergio to fill the role in the agency’s national office.

According to OFCCP’s announcement

Marcus’ first assignment will be to design and implement OFCCP’s Ombud Service to facilitate the fair and equitable resolution for specific types of issues raised by OFCCP stakeholders in coordination with regional and district offices.

Fittingly, his prior experience includes serving as the primary administrator of the dispute resolution process for a number of multi-national organizations, companies and institutions. Per OFCCP’s press release, he received his Master’s degree in conflict resolution from the University of Massachusetts, Boston and his Bachelor’s degree from Northeastern University. Stergio also took part in Harvard Law School’s Program on Negotiation and Dispute Resolution in 2013.

The Ombud Service fits well into the agency’s principal of transparency as the role, according to Director Leen will

provide an independent perspective and facilitate communication between external stakeholders and OFCCP regional and district offices.

OFCCP also recently announced the appointment of a Deputy Director, Bob Gaglione.  Deputy Director Gaglione had a distinguished 30-year legal career in San Diego before joining the agency.

We are looking forward to getting to know Marcus and Deputy Director Gaglione and having the opportunity to work with them both.

Contractor Assistance Portal

Adding to its continually-expanding contractor resources, and in furtherance of its Town Hall Action Plan, OFCCP has unveiled a Contractor Assistance Portal.  Discussed previously in some instances as an “on-line” HelpDesk, the Agency has developed to portal as a place

where companies doing business with the federal government come together to learn solutions to common U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) compliance problems and challenges.

Specifically, OFCCP envisions the portal to be a place where contractors can ask questions (without attribution) to receive verified answers, search our library of frequently asked questions, and access helpful reference and compliance assistance materials.  OFCCP notes the agency intends to “continuously update the online help desk with new features and compliance assistance resources.” 

Stay tuned for more . . .

Under the leadership of Craig Leen, OFCCP has made a renewed commitment to providing technical assistance to contractors.  True to their word, and in furtherance of its Town Hall Action Plan, OFCCP announced on Friday the release of a number of new technical assistance guides (TAGs), with more on the way.  Interestingly, Director Leen did not make any formal announcement of their upcoming release during last week’s ILG National Conference.

These new TAGs are in addition to the previously released “What Contractors Can Expect“ guidance.

Record keeping

OFCCP has released three TAGs to address record keeping obligations:

Brief in nature, the TAGs set out in a quick glance the record keeping obligations for the three regulations.

Applicant Tracking

The agency has also provided guidance around applicant tracking compliance, including definitions and record keeping obligations:

Posting and Notices

The agency additionally, published a lengthy Posting and Notices Guide that provides an explanation of the required posting and notices as well as handy check-lists for self-auditing.

General Information

In addition, OFCCP has published a guide entitled “OFCCP at a Glance” explaining the agency’s mission and enforcement responsibilities.

It is our understanding OFCCP is working on TAGs for Construction Contractors, Institutions of Higher Education as well as Supply and Service Contractors.  We will update as soon as those guides are available.

Well, another ILG National Conference is in the books.  This year’s conference highlighted the continued return to a more collaborative relationship between contractors and OFCCP as well as the agency’s commitment to its four principles.

On the final day of the conference, attendees heard from practitioners as well as a panel of OFCCP Regional Directors, Office of the Solicitor , OFCCP leadership, and again from Director Leen who closed out the conference with a short Question & Answer session.

The Regional Directors and Solicitor panel shared information on OFCCP’s New Student Worker FAQ as well as the agency’s treatment of foreign nationals during audits.  They also discussed the available guidance on pre-employment testing and the status of current training being provided to Compliance Officers to get them prepared to undertake Focused Reviews.

The panel also credited contractors for improving the timeliness of submissions while also acknowledging that improvements can still be made in recordkeeping.  They also encouraged contractors to do more “cross training of employees.”

In his closing comments to the conference, Director Leen discussed his intent behind the ability to obtain an extension during an audit with the timely submission of a contractors affirmative action plan as well as the expectation contractors should be receiving, proactively, information from compliance officers as to any findings at the end of the desk audit.

In the area of “breaking news” Director Leen announced OFCCP’s has completed its search for an Ombudsperson, who will start the position on Monday, August 5, 2019.  And finally, he shared with conference-goers that he has instructed OFCCP staff to review parental leave policies for equity.  This is a good reminder for contractors to review OFCCP’s FAQs on the matter.

All-in-all this year’s conference seems to be a success.  There is a lot on the agenda for OFCCP and, if the conference is any indication, the relationship between the Agency and contractors seems to be headed back in the right direction.

We are already looking forward to seeing you in 2020 in National Harbor, Maryland for an election-year ILG National Conference!