EEOC Provides Update on EEO-1 Pay Data Reporting Portal and Helpdesk Development

As previewed last week, EEOC has provided additional details regarding the anticipated opening of the EEO-1 pay data reporting portal and helpdesk.

The EEOC is now reporting it

 expects a web-based portal for the collection of 2017 and 2018 Component 2 data will be active by mid-July 2019.

The URL for the portal will be https://eeoccomp2.norc.org. It is important to note the portal is not yet open.

The EEOC stated it will be notifying filers prior to the launch of the portal.  It has also said it will be providing FAQs and other materials to assist filers with the submission of Component 2 data.

As we also previously reported, the EEOC expects that a helpdesk will be fully operational starting on approximately June 17, 2019.  Again, it is important to note the helpdesk is not yet operational.

The contact information for the helpdesk will be:

  • Email: EEOCcompdata@norc.org
  • Toll Free: (877) 324-6214

As always, we will continue to update you with additional developments as they become available.

OFCCP Issues First Opinion Letter

As we noted at the beginning of the year, 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. 

Directive 2018-08 also 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.  

Last week OFCCP quietly issued its first Opinion Letter:  OFCCP’s Jurisdiction Related to Pell Grants.  Spoiler alert:  a college’s receipt of Pell Grant funds does not constitute a “government contracts” and, thus, do not trigger AAP obligations. 

Anyone interested in following OFCCP’s Opinion Letters can find them by clicking the “Topics” tab at top of OFCCP’s website, and then navigating to the “Opinion Letters” link. 

Keep in mind, OFCCP is now seeking input from federal contractors and their attorneys. 

As the Directive states:

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.

We will continue to monitor OFCCP’s site for further letters and let you know what we learn. 

 

Department of Labor Updates Notification of Employee Rights Under Federal Labor Law Poster

The Department of Labor has announced updates to the Notification of Employee Rights Under Federal Labor Law poster, required to be posted (in 11×17 format) by federal contractors and subcontractors pursuant to Executive Order 13496.

The changes include:

  • a new telephone number for the National Labor Relations Board (NLRB), the agency responsible for enforcing the NLRA – 1-844-762-NLRB (6572)
  • new contact information for individuals who are deaf or hard of hearing through the Federal Relay Service

Though the changes are technical in nature, it is important that you ensure you have the updated poster in place, especially given all of the OFCCP audit activity on the horizon.

EEOC on Target to Open Pay Data Collection Portal In July

In its latest progress report, submitted to the Court on May 24, 2019, the EEOC details its efforts over the past weeks to get the new EEO-1 pay data reporting tool up and running.

The report details meetings between EEOC and NORC to develop training materials and a Help Desk to field questions from filers among other items necessary to open the pay data collection tool.

Per the report, EEOC anticipates the Help Desk to be fully operational by June 17 and is looking to provide an update on the collection of the 2017 and 2018 pay data, as well as contact information for the Help Desk, on or about June 3rd.

The filing also reports

The EEOC is currently on track to open the Component 2 data collections for calendar

years 2017 and 2018 from July 15, 2019 through September 30, 2019.

We will continue to report as we receive more information about the Help Desk and data collection efforts.

OFCCP Adds to 2019 Rulemaking Agenda

This week the Department of Labor announced its spring 2019 Regulatory Agenda.   Included was an new item from OFCCP that was part of its prior published regulatory agenda.  As OFCCP previously announced in 2018, its planned rule-making agenda for the near future includes rulemaking to address affirmative action obligations for TRICARE providers (slated for May 2019) and contractor’s use of religious exemptions (slated for June 2019).

New to the 2019 agenda, OFCCP has announced it will seeks to create regulations for Procedures to Resolve Potential Employment Discrimination. Currently the only information available on the upcoming rulemaking is that it will seek to

increase clarity and certainty for OFCCP stakeholders, and enhance the agency’s efficiency in remedying employment discrimination.

In a recent public appearance, Director Leen hinted at upcoming rulemaking around OFCCP’s Pre-Determination Notice (PDN) process as articulated in Directive 2018-01. Thus, we anticipate this upcoming procedure-oriented rulemaking will seek to codify the processes outlined in the PDN Directive, among potential others.

Per the agenda, this new rulemaking is expected to be proposed in September of 2019.

We will continue to follow and update this and other developments as they occur.

Director Leen Shares OFCCP Update

OFCCP Director Craig Leen thinks the Agency has made good progress on implementing “the four pillars” but there is still work to be done.

Speaking this week in Florida, Director Leen shared accomplishments, and things to come, for each of the four tenants.  However, he noted he was not allowed to comment on the pending proposed changes to the scheduling letters.

Transparency

Referring to it as the “linchpin” of all of the pillars, Director Leen enumerated some of the item the Agency has done to be more transparent (e.g. publication of the scheduling methodology and posting of conciliation agreements) as well as discussed additional guidance and information soon to be released.

These items include Technical Assistance Guides for higher education, compensation and “at  least one other.”  He also previewed that the agency is working on an update to the FCCM (Federal Contractor Compliance Manual) to be released “hopefully soon.”

He also reiterated that OFCCP is putting out new FAQs to provide contractors with additional guidance, including new ones on apprenticeship programs, military spouses and use of the national interest exemption for contractors who are requested to provide services in response to natural disasters.  Director Leen has also been very transparent about his thoughts on the important of practical significance in addition to statistical significance and shared the agency will soon be releasing an FAQ addressing that topic as well.

Director Leen also indicated additional guidance for Focused Reviews will be coming – reiterating on-sites for the current round of Section 503 Focused reviews will not be scheduled before September.  He also confirmed the next round of audits will include VEVRAA focused reviews (evaluating the intersection of disability and veteran status) and then the Agency is planning to conduct focused reviews on organizations’ promotion processes, including promotions of individuals with disabilities.  Director Leen does not intend to target any specific industry, as has been reported, but plans to review across all industries.

Certainty

This second pillar “ties into transparency” and reflects the Rule of Law according to Director Leen.  For OFCCP that means engaging in the rulemaking process in the future, specifically TRICARE and religious exemptions in the near term, and “hopefully” something on PDNs and Notices of Violation.  Director Leen noted the absence of any mention in the regulations about the process before the issuance of a Show Cause.

He also spent time discussing the contractors request, and the need, for more guidance from the agency on compensation analyses, stating

If you don’t know how to put together a PAG [that will be acceptable to the Agency] there is no Rule of Law. . . If there is no clear guidance, how can you come into compliance in advance?

He hopes the forthcoming guidance from the agency will assist with certainty around this area.  Interestingly, Director Leen did not mention the Agency’s use of opinion letters.

Efficiency

Director Leen acknowledged he is focusing a lot on this pillar in FY2019, particularly in the area of resolving aged cases.  He believes aged cases disadvantage everyone involved, from contractors to the Agency but especially the employees.

Recognition

Finally, Director Leen reminded attendees that they Agency is working to develop recognition programs and invited feedback through the public comment process on the proposed programs.

 

EEOC Back In Business with New Quorum

As anticipated, the U.S. Senate has confirmed the nomination of Republican Janet Dhillon as the Chairwoman of the EEOC.  Ms. Dhillon joins Republican Victoria Lipnic, who has been Acting Chair, and Democrat Charlotte Burrows.  According to EEOC’s website, Ms. Burrows’ term ends July 1, 2019.

The bipartisan EEOC is comprised of a Chair, Vice Chair, three Commissioners and a General Counsel, each appointed by the President with the consent of the Senate.  With the appointment of Ms. Dhillon, the EEOC still has openings for the Vice Chair, two Commissioners and the General Counsel.

At the top of many of our minds is the pay data component of EEO-1 reporting, which is now due by September 30, 2019 for years 2017 and 2018.  The appointment of Ms. Dhillon does not have any immediate impact on the obligation of employers to comply with the pay data-reporting requirement.  However, EEOC filed a Notice in the pay data case (National Women’s Law Center v. Office of Management and Budget) notifying the court of Ms. Dhillon’s confirmation and stating,

[i]f, once a quorum is restored, the Commission takes action related to the Component 2 data collection that is the subject of this litigation, we will promptly notify the Court.

As always we will continue to monitor this case and bring you any important updates.

OFCCP Provides Resources for Compliance Checks

It’s time to start checking the mail.  As a sure indication of the Agency’s intention to soon start initiating audits from the FY2019 CSAL, OFCCP has published a new Compliance Check website.  OFCCP has published similar guidance for the Section 503 Focused Reviews.

In furtherance of its commitment to provide more technical assistance, OFCCP created with site “to help contractors prepare for compliance checks.”  The Agency describes Compliance Checks as

a type of compliance evaluation in which OFCCP seeks to determine whether the contractor has maintained certain records.

The website provides links to Frequently Asked Questions and a copy of the current letter contractors will receive when they are scheduled for a compliance check.  As we have previously reported, OFCCP has published for Notice and Comment proposed revisions to the Compliance Check scheduling letter.

In its FAQs, OFCCP clarifies the information it will review as part contractors of a Compliance Check.

  • prior year AAP results,
  • job advertisements (including state employment service listings), and
  • examples of accommodations for individuals with disabilities.

Importantly, as previously discussed, the FAQs note that during a compliance check,

OFCCP will also check the General Services Administration System for Award Management database to determine if a contractor has self‐certified that it has AAPs.

With respect to the “prior year AAP results” OFCCP is specifically looking for the following:

  • For Executive Order 11246, OFCCP will review the contractor’s report on goals for women and minorities, as well as the good faith efforts it undertook to remove barriers and expand employment opportunities for those groups.
  • Under the Section 503 and VEVRAA regulations, contractors must assess the effectiveness of their external outreach and recruitment efforts. See 41 CFR 60‐300.44(f)(3), 60‐741.44(f)(3). OFCCP will review the documentation of these assessments during a compliance check.

Our understanding is the scheduling of these Compliance Checks and other establishment reviews, is imminent as the 45 day grace period from the release of the CSAL list has come to an end and we’ve had reports of contractors receiving reach outs from the Agency confirmation contact information. These reach outs are a typical pre-cursor to the sending of a scheduling letter.

EEOC Provides Pay Data Reporting Update

The past few weeks have seen a flow of new developments involving the recently reinstated EEO-1 pay data reporting obligations.  And Friday, May 3rd, was no exception.  At the same time EEOC was announcing its decision to collect pay data for 2017 as well as 2018, the Office of Management and Budget (OMB) was filing a Notice of Appeal of Judge Tanya S. Chutkan’s Order reinstating the pay data reporting obligation.

EEOC has, however, posted a notice on its website taking the position the Notice of Appeal does not impact employers’ EEO-1 pay data reporting requirement, stating the following:

On May 3, 2019, the Department of Justice filed a Notice of Appeal in National Women’s Law Center.  The filing of this Notice of Appeal does not stay the district court orders or alter EEO-1 filers’ obligations to submit Component 2 data. EEO-1 filers should begin preparing to submit Component 2 data as described above.

In addition to posting the updated notice on its website, EEOC also filed the first of its required status reports with the Court.  The first of Defendant EEOC’s Report of Steps to Implement the EEO-1 Component 2 Data Collection, filed on May 3, 2019, details, among other things, the initial steps it has taken to comply with the Court’s Order to collect Component 2 (pay data) of the EEO-1 report by September 30, 2019.

As of Friday, EEOC reported it has selected a third party vendor, NORC at the University of Chicago, to develop the reporting tool and detailed how it will work with NORC in the coming weeks.  As part of these efforts, EEOC indicated:

[i]n the next three weeks, the EEOC plans to oversee preparation and planning for the launch
of the NORC email and phone helpdesk to assist filers with questions and concerns about the
collection of Component 2 data for 2017 and 2018. The EEOC anticipates that the helpdesk will
launch sometime in the next three weeks.

EEOC also notified the Court that the long-awaited confirmation of EEOC Commissioner Janet Dhillon may occur as early as next week.  Her nomination has been pending since June 2017.  With Dhillon’s confirmation, EEOC would finally have a quorum with three confirmed CommissionersActing Chair Victoria Lipnic and Charlotte Burrows.  Though two vacant seats would still remain.

We will continue to monitor this matter and will provide any updates as they become available.

EEOC Decides to Collect 2017 Pay Data In Addition to Data for 2018

One of the biggest outstanding questions about the recently reinstated pay data reporting obligation was whether employers will be required to provide more than one year of pay data during this reporting cycle.  EEOC has made its decision.  In an advance copy of a notice to be posted in the federal register May 3, EEOC puts employers on notice that it will seek to collect data for 2017 in addition to 2018.

EEO-1 filers should begin preparing to submit Component 2 data for calendar year 2017, in addition to data for calendar year 2018, by September 30, 2019, in light of the court’s recent decision in National Women’s Law Center, et al., v. Office of Management and Budget, et al., Civil Action No. 17-cv-2458 (D.D.C.). The EEOC expects to begin collecting EEO-1 Component 2 data for calendar years 2017 and 2018 in mid-July, 2019, and will notify filers of the precise date the survey will open as soon as it is available.

Judge Tanya Chutkan gave EEOC the option to collect 2017 and 2018 data during the 2019 reporting cycle, or to collect 2018 data this year and 2019 data by March 31, 2019.

This is a developing story.  Additional updates will be forthcoming.

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