On Monday, the U.S. Senate confirmed Marty Walsh as the Secretary of the U.S. Department of Labor under President Biden. Secretary Walsh will, of course, also be newly-appointed OFCCP Director Jenny Yang’s new boss. While we have anticipated a change in OFCCP direction under Director Yang, the changes, thus far, have been limited, perhaps because she was waiting for Labor Secretary’s confirmation.
In an interview with Bloomberg News, Director Yang has recently confirmed that pay equity will be the Agency’s top priory and that she disagrees with the ALJ’s decision in the Oracle pay discrimination case regarding appropriate pay equity analysis methodology; she has moved forward with AAP verification; and, perhaps most significantly to date, cancelled all the focused reviews scheduled by the prior OFCCP administration.
While numerous questions remain about the state of OFCCP under Director Yang, one our our first questions, and that of contractors, is if, and when, OFCCP will issue a new Courtesy Scheduling Announcement List (CSAL). OFCCP has historically issued new CSALs in the fall and in late-winter or early spring. Currently, OFCCP is working to complete the establishment audits from the March 2019 CSAL and the September 2020 update. Secondary, to that is the looming question of whether federal contractors with cancelled focused reviews are simply “off the hook” or might OFCCP essentially issue a new CSAL converting some or all of those focused reviews to deeper-dive establishment reviews? Those contractors who found themselves with Focused Reviews “erased” from the scheduling list are likely best served by anticipating audits in the near future.
On the topic of AAP verification, there is a question as to whether OFCCP will seek to use the portal for data collection at some point in the future.
In the area of pay, we are starting to see some OFCCP offices looking more into the issue of “intersectionality” – potential discrimination based on the intersection of an individual’s race/ethnicity and sex: pay or other discrimination against Black women; Hispanic men, etc. Will intersectionality analyses become the norm under the current OFCCP administration?
As with any turnover in OFCCP administration, there will be change. Stay tuned to our blog for updates on these and other changes OFCCP may now be poised to begin implementing.