On the heels of a successful first day of the 2021 ILG National Conference, attendees were treated to an in-person morning keynote speech from Equal Employment Opportunity Commission Chair Charlotte Burrows to kick-off the second day of the conference.

Chair Burrows recognized in her opening remarks the current challenges facing our nation can sometimes seem insurmountable, but noted they likewise

present all of us with an opportunity to do better.

While noting the Commission’s commitment to the six national enforcement priorities from the Agency’s Strategic Enforcement Plan, Chair Burrows dedicated the majority of her address to two additional areas: (1) combatting systemic racial discrimination and (2) the civil rights implications of the COVID-19 pandemic.

With respect to the first area, Chair Burrows noted that addressing systemic discrimination has bipartisan support and is not just about identifying and addressing individual acts, but also focusing on broader practices  and “cultures of exclusion.”

In addressing the impact of COVID-19 on our country, Chair Burrows emphasized that “it is not just a health crisis, it is a civil rights crisis” given the pandemic’s effects on women, women of color and women with children.

Chair Burrows also touched briefly on the landmark Supreme Court case of Bostock v. Clayton County, Georgia, which resolved the question of whether Title VII of the Civil Rights Act of 1964 protects against discrimination on the basis of sexual orientation and gender identity with “a resounding yes.”  Despite this, she noted that “this will continue to be an evolving issue.”

In her closing remarks, Chair Burrows made sure to address the issue of pay discrimination, remarking that

pay discrimination has been hard to fight because it is so hard to find.

She recognized that lack of access to pay data has been a longstanding gap of the Agency and reminded the audience of the EEOC’s collection of pay data for the first time last year.  She confirmed the Agency is awaiting the results of the current study of the collected pay data and looks forward hearing from stakeholders about how to best “address the issue.”

As her speech came to its conclusion, Chair Burrows stated we “must protect the rights of all Americans” and believes “together we can finish the job.”  She closed by saying she is looking forward to a productive partnership with the NILG and answered a few questions from the audience, including one asked by former OFCCP Director Craig Leen.

 

Hello and Welcome from the Opening Day of the 2021 Industry Liaison Group (ILG) National Conference.

After a year hiatus, the 2021 ILG National Conference officially kicked off today from Nashville, TN.  Offering access to programming both virtually and in person, the conference is working hard to address the realities of operating in a COVID world.

After a day of pre-conference content on Sunday, the conference formally started this morning with a recorded presentation from OFCCP Director Jenny Yang.

Director Yang started her remarks by sharing the news that beginning August 16, Michelle Hodge, now the Mid-Atlantic Region Regional Director, will be Director Yang’s Career Deputy Director.

She then commented generally on Department of Labor Secretary Walsh’s vision for the agency and focus on working to ensure

good jobs free from discrimination are accessible to everyone.

She expressed that OFCCP is a resource to support efforts of employers to “remove barriers to opportunities.”

As for updates and announcements about ” things to come” from OFCCP, Director Yang noted a couple of items:

  • If the new federal budget is approved would support hiring of close to 188 Full Time Agency employees as well as other IT initiatives, that will allow OFCCP to review data at a national level through continued build out of its management system.
  • Reinvigoration of the construction contractor program, to include, a new scheduling letter (with new categories of data to be submitted at the outset of audits) and a new construction audit scheduling selection system.
  • Continued work on encouraging contractors to use FAAPs (Functional Affirmative Action Plans), which the Agency believe have many benefits, including grouping of more similarly situated employees which allows OFCCP to “identify more areas for growth.”
  • Intention to modernize regulations, to streamline processes and reduce burdens while “comprehensively” evaluating indicators.  Some of the modernizations Director Yang mentioned the Agency is considering including:
    • requiring disaggregated goal setting by race/ethnicity
    • looking at alternatives to establishment based approach better analyze workforce patterns
    • collection of gender non-binary data

Director Yang also highlighted that the Agency has posted an updated FAQs to address the new realities of work locations, including telework.

Director Yang closed out her remarks by saying she’s looking forward to working with the contractor community for years to come.

 

In an effort to slow the spread of the Delta variant of the Covid-19 virus, President Biden announced (in a July 29, 2021 White House Fact Sheet, as well as at a press conference) that on-site federal contractor employees will be asked about their vaccination status and if not fully vaccinated, be required to wear a mask and undergo COVID testing:

[E]very federal government employee and onsite contractor will be asked to attest to their vaccination status. Anyone who does not attest to being fully vaccinated will be required to wear a mask on the job no matter their geographic location, physically distance from all other employees and visitors, comply with a weekly or twice weekly screening testing requirement, and be subject to restrictions on official travel.

President Biden is also directing his team to develop a plan to

“take steps to apply similar standards to all federal contractors.”

The administration will also “encourage employers across the private sector to follow this strong model.”

We are awaiting announcement of the details of this plan and will keep you posted on further developments on this White House initiative.

As covered in our last blog post on this topic, President Biden issued Executive Order 14026  on April 27, 2021 raising to $15 per hour the minimum wage certain federal contractors must pay workers performing work “on or in connection with” a covered federal contract or subcontract.  According to the Executive Order, the Department of Labor (DOL) must finalize implementing regulations by November 24, 2021.

To comply with that directive, the DOL today issued proposed regulations for public comment.  The Notice of Proposed Rule Making (NPRM) will be published in the Federal Register on July 22, 2021.

The bottom line?  The $15 minimum wage applies to the following types of contracts:

  • Procurement contracts for construction covered by the Davis-Bacon Act, but not the Davis-Bacon Related Acts;
  • Service Contract Act (“SCA”) covered  contracts;
  • Concessions contracts;
    • Concessions contract means a contract under which the federal government grants a right to use federal property, including land or facilities, for furnishing services. The term concessions contract includes but is not limited to a contract the principal purpose of which is to furnish food, lodging, automobile fuel, souvenirs, newspaper stands, and/or recreational equipment, regardless of whether the services are of direct benefit to the Government, its personnel, or the general public;
  • Contracts related to federal property and the offering of services the general public, Federal employees, and their dependents;

What’s not covered?  The Executive Order does not apply to:

  • Contracts for the manufacturing or furnishing of materials, supplies, articles, or equipment to the Federal Government;
  • Grants;
  • Contracts or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act;
  • Contracts excluded from coverage under the SCA or DBA specifically excluded in the implementing regulations;
  • Other contracts specifically excluded.  See NPRM Section 23.40.

The Order applies to “new contracts” after January 30, 2022, but that term is more expansive than appears.  “New Contracts” include:

  • Extensions or renewals of existing contracts or contract-like instruments; and exercises of options on existing contracts or contract-like instruments on or after January 30, 2022.
  • Thus, the federal government may unilaterally exercise an option in an “old” contract not subject to the $15 rate and make the contract subject to the new $15 wage requirement.

What workers are entitled to the $15 wage?  The proposed regulations would require the $15 wage for all workers (not just employees) who perform the work covered by the contract and whose wages are already covered by the FLSA, the SCA, or the DBA .

This means “service workers” under the SCA , construction workers under the DBA, and workers whose wages are covered by the FLSA except for workers in a bona fide executive, administrative, or professional capacity, as those terms are defined in the FLSA at 29 C.F.R. Part 541, who are exempt from the FLSA’s minimum wage and overtime requirements

Only workers performing work “on or in connection with” a covered contract must be paid $15 per hour and only for such work performed on or in connection with the contract.  The definition of “Worker” offers the following guidance:

A worker performs “on” a contract if the worker directly performs the specific services called for by the contract. A worker performs “in connection with” a contract if the worker’s work activities are necessary to the performance of a contract but are not the specific services called for by the contract.

For more information regarding the details of the proposed regulations, please read our Client Alert, which also covers federal contractor notice and record-keeping obligations, implications for tipped employees and comparisons to President Obama’s minimum wage regulations.

Public comments concerning the proposed regulations must be submitted no later than August 21, 2021 at www.regulations.gov and searching for Regulatory Information Number (RIN) 1235-AA41.

 

OFCCP has announced the release of its FY 2021 CSAL.  The CSAL, known as the Corporate Scheduling Announcement List (or also referred to as the Courtesy Scheduling Announcement List) identifies 750 Supply and Service establishment-based full compliance reviews, Corporate Management Compliance Evaluations (CMCE), Functional Affirmative Action Program (FAAP) Reviews and University Reviews.

As it has done previously, OFCCP also published the methodology for developing the list as well as frequently asked questions (FAQs).

OFCCP is encouraging contractors to let it know if they believe they have been selected for audit in error but contacting the OFCCP Scheduling Mailbox at ofccp-dpo-scheduling@dol.gov.

We are undertaking a review of the list and other documents and will provide an update with any new insights or trends in the coming days.

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.