Among the many “hot” topics for federal contractors, OFCCP’s intention for AAP verification and/or certification ranks among the top.  In September 2020, OFCCP published a notice seeking comment on the possibility of an annual AAP certification and verification process.  Towards that end, the Agency also sought Office of Management and Budget (OMB) approval for an “AAP Verification Interface” (AAP-VI).

Yesterday, OFCCP cleared a major hurdle toward AAP verification with OMB’s approval of the “AAP-VI.”  Although the AAP-VI is not “live,” a page at OFCCP’s website explains:

Affirmative Action Program Verification Interface (AAP-VI) is a secure web based interface created to improve communication and the transfer of Affirmative Action Program data, between Federal Contractors and the Office of Federal Contract Compliance Programs.

As part of its approval, OMB also approved a User Guide and an “Admin Guide.”  At 23 and 22 pages in length, respectively, there is a lot to digest in these documents but not much clarification about the context in which the information will be submitted.

In the Purpose & Scope section of the User Guide, OFCCP says:

Currently, federal contractors submit their AAPs via mail or email. The AAP-VI system will be the primary source for entering, tracking and submitting your Affirmative Action Programs for review by OFCCP. AAP-VI will provide federal contractors a system to submit their Programs in a more efficient manner and provide visibility and reporting capabilities of the data submitted by the Programs.

Stay tuned as we dive into the User Guides and await further information from the Agency, including when the certification obligation will commence.

In November 2019, OFCCP announced it would not “request, accept or use” Component 2 pay data submitted by employers as part of EEOC’s previous pay data collection reporting obligation.  OFCCP’s notice followed on the heels of EEOC’s notice that it would not be seeking renewal of approval to collect pay data beyond 2017 and 2018.

OFCCP is now revisiting it’s November 2019 decision.  In a Notice to be published in the federal register on September 2, 2021 OFCCP notes it

believes the position taken by [OFCCP] in the November 2019 notice was premature and counter to the agency’s interests in ensuring pay equity.

The Notice explains that OFCCP “intends to devote further agency resources to evaluate the data’s utility because the joint collection and analysis of compensation data could improve OFCCP’s ability to efficiently and effectively investigate potential pay discrimination.”

To be clear, OFCCP has not gone as far as to say that it is in fact using the pay data for any enforcement activities, only that it is studying the utility in doing so.

We, like you, will be interested to see what conclusions the Agency comes to following its review.

 

 

The EEOC has announced on its EEO-1 Data Collection website that it has, again, extended the deadline for filing EEO-1 Reports this year—this time to October 25.  Employers still rushing to finalize and upload their 2019 and 2020 EEO-1 reports by the prior August 23 deadline will certainly welcome this extra breathing room.

But EEOC’s announcement makes clear that there will be no more extensions:

Please note that this new deadline is the FINAL DEADLINE and all eligible filers MUST submit data by this date.  No additional changes to the filing deadline will be made.

So it is wise for employers to continue to finalize these reports with urgency.  This year, the EEO Joint Reporting Commission must review and approve each company’s 2019 filing before it may file its 2020 data, which also must be approved.   This, among other things, has caused delays in certifying filings this year.  As the deadline approaches beware of this added step and be sure to plan ahead.

 

The final day of the 2021 NILG National Conference ended on a high note with presentations from, and panel discussions with, OFCCP Regional Directors Melissa Speer (SWARM), Aida Collins (SE), Michele Hodge (MidAtlantic) and Diana Sen (NE).  The four women represented the six OFCCP regions, speaking on behalf of Jane Suhr (Pacific) and Carmen Navarro (Midwest), who could not be in attendance.

Each Director shared statistics and highlights from their region, and those they were speaking on behalf of, from FY2020 and 2021 to-date.

Not surprisingly, the settlement numbers show an increase in pay discrimination settlements – which is reflective of the Agency’s focus on compensation discrimination.

Each of the Directors separately remarked on the value and benefit of early resolution in audits.  Noting there are benefits for both parties, Director Sen shared her belief that

the earlier the resolution the better

because it allows OFCCP to preserve resources and allows companies to tailor the remedy.

In response to a direct question as to the future of early resolution in the new administration, each Director confirmed early resolution is still available and noted it should occur during the beginning phases of the review.  The success of early resolution before the issuance of a Pre-Determination Notice (PDN) or Notice of Violation was reiterated throughout the session.

Reading from notes provided by Jane Suhr for the Pacific Region, Director Sen noted the Pacific Region has been successful in early resolution in multi-establishment reviews with corporate-wide conciliation agreements.  To this point, in her remarks Aida Collins highlighted the fact that

OFCCP does not operate in silos

and that there is inter-regional sharing of information within the Agency.

The panel also touched a bit on scheduling of new audits.  Melissa Speer shared the SWARM region schedules audits regionally out of the Dallas office (as opposed to at the District level) and for contractors with multiple establishments within SWARM, she is trying to schedule them out of the same District office as she believes there is “benefits for both sides” in doing so.   Diana Sen noted the Northeast Region will likely begin scheduling off of the most recent CSAL in mid-August (45 days after the list was published) as the region has only a few audits left to be scheduled from the previous list.

In the last moments of the session, the panel shared examples of the “good” things they’ve seen from contractors and recommendations to experience shorter and quicker audits.  Examples of “the good” included detailed STEM program collaboration at local schools, C-Suite communications regarding an organization’s commitment to EEO and participation in Employee Resource Groups (ERGs).

The collective words of wisdom for shortening the duration of an audit is to “be prepared.”  And in the eyes of the Regional Directors “being prepared” can range from reviewing the CSAL list to see if your organization has been selected for upcoming audit, to pulling down the scheduling letter template to start gathering the information need for submission, or even as Michele Hodge suggested for companies to

run [your analyses] as OFCCP will run it so you are not surprised.

The Regional Directors shared a wealth of information and insights with conference attendees and it was a great way to end the conference.  We looking forward to doing it all again in 2022!  Until then, be well and take care of yourself and each other.

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.