Yesterday, the Safer Workforce Taskforce (Task Force) publicized a slew of new FAQs with one set containing surprising information regarding federal contractors.  To be clear, this is not the guidance contractors are waiting for with respect to implementation of President Biden’s Executive Order 14042 – Ensuring Adequate COVID Safety Protocols for Federal Contractors.  With that said, the new FAQs include an FAQ encouraging federal agencies to include vaccine requirements into contracts that are NOT covered by the President’s Executive Order:

  • Q: Can agencies incorporate vaccination requirements into contracts that are not covered by Executive Order 14042 (Ensuring Adequate COVID Safety Protocols for Contractors)?
  • A: Yes. Agencies are strongly encouraged to incorporate vaccination requirements into contracts that are not covered by Executive Order 14042, consistent with applicable law. This might include, for example, incorporating vaccination requirements into contracts in advance of when they are otherwise required by the Executive Order or incorporating requirements into contracts that are not covered by the Executive Order, such as contracts under the Simplified Acquisition Threshold. Implementation of such additional requirements should generally follow the Safer Federal Workforce Task Force’s guidance for implementing the vaccination requirement in Executive Order 14042.

This direction seems to “authorize” agencies to significantly expand the requirements of the Executive Order and undermine its express exclusion for subcontracts solely for the provision of products and, essentially, to expand coverage to any federal contract.  And, while it is unclear whether the Executive Order is limited to workers and employees working “on or in connection with” covered federal contracts, this FAQ might also be read to allow federal agencies to require all federal contractor employees to comply with vaccine requirements.

Given this new wrinkle, all federal contractors – and not those explicitly covered by the Executive Order – will need to review closely any new (or renewed) contracts for vaccine and testing clauses and provisions. 

Adding to the previous guidance for federal contractor employees working on-site at federal sites, another FAQ states that such on-site employees who are not fully vaccinated or refuse to disclose their vaccine status must provide proof of a negative COVID test no older than three days.  However, “if a contractor employee is regularly tested pursuant to an agency testing program, then they do not need to provide proof of a negative COVID-19 test from no later than the previous 3 days prior to entry to a federal building unless required to by the agency testing program.”

The Task Force has also provided an OMB-approved Certification of Vaccination form for on-site federal contractor employees.

[A]gencies will direct onsite contractor employees to complete the Certification of Vaccination form and keep it with them during their time on federal premises—they may be asked to show the form upon entry to a federal building or federally controlled indoor worksite and to a federal employee who oversees their work

[T]he agency will not maintain Certification of Vaccination forms from contractor employees at this time unless an agency has a system of records notice that covers its collection of this information from onsite contractor employees. Any such collection, storage, or maintenance of the attestation disclosure forms may implicate the Privacy Act and Paperwork Reduction Act.

Agencies may also invoke vaccine and testing requirements prior to a contractual requirement for on-site federal employees.

Prior to having a contractual requirement for its employees to be vaccinated and if authorized and consistent with the terms of the contract, an agency may work with a contractor to facilitate compliance by its onsite employees with the agency’s safety protocols, such as by having the company attest that all onsite contractor employees are fully vaccinated.

Federal contractor vaccine requirement information and guidance is evolving quickly, so please stay tuned for additional blogs.

During a press conference Thursday afternoon, President Biden announced a broad plan that will include as-yet undefined guidance to require federal contractors to “provide adequate COVID-19 safeguards to their workers performing on or in connection with a Federal Government contract or contract-like instrument.”  While the President’s remarks and the Administration’s corresponding plan suggest a vaccine mandate, the President’s Executive Order does not explicitly mandate a vaccination requirement.   The requirement, however, is expected to be established by the Safer Federal Workforce Task Force.

The President’s plan is encompassed in an Executive Order covering federal contractors (discussed below) and a White House broader publication entitled “Path Out Of The Pandemic – President Biden’s Covid-19 Action Plan.”  The text of the plan states

the President has signed an Executive Order to take those actions a step further and require all federal executive branch workers to be vaccinated. The President also signed an Executive Order directing that this standard be extended to employees of contractors that do business with the federal government.

President Biden’s broader plan will also include a requirement that all employers with 100 or more employees “ensure” their workforces are either “fully vaccinated” or test negative for COVID-19 at least once a week.  Press outlets briefed on the plan today say that OSHA will issue an emergency rule to implement this aspect of the plan.  Additionally, the plan is to require employers to provide employees paid time off to get vaccinated.

The multi-faceted plan the President announced today comes on the heels of a mandate announced in August that all federal employees and on-site federal contractor employees either be vaccinated against COVID-19 or face repeated testing, and comply with strict social distancing and masking requirements.  A recorded webinar regarding the on-site federal contractor mandate can be found here.

Today’s Federal Contractor Executive Order

The President’s Executive Order, “Ensuring Adequate COVID Safety Protocols for Federal Contractors,” provides and outline, but stops short of requiring the vaccine and leaves the most critical details to a contract clause to be crafted by the Safer Federal Workforce Task Force.  Specifically, the Order the states:

[b]y September 24, 2021, the Safer Federal Workforce Task Force (Task Force) shall, as part of its issuance of Task Force Guidance, provide definitions of relevant terms for contractors and subcontractors, explanations of protocols required of contractors and subcontractors to comply with workplace safety guidance, and any exceptions to Task Force Guidance that apply to contractor and subcontractor workplace locations and individuals in those locations working on or in connection with a Federal Government contract or contract-like instrument (as described in section 5(a) of this order).

The Order does make clear that federal contracting agencies shall

ensure that contracts and contract-like instruments (as described in section 5(a) of this order) include a clause that the contractor and any subcontractors (at any tier) shall incorporate into lower-tier subcontracts.  This clause shall specify that the contractor or subcontractor shall, for the duration of the contract, comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force (Task Force Guidance or Guidance).

It goes on to state the clause will:

…provide definitions of relevant terms for contractors and subcontractors, explanations of protocols required of contractors and subcontractors to comply with workplace safety guidance, and any exceptions to Task Force Guidance that apply to contractor and subcontractor workplace locations and individuals in those locations working on or in connection with a Federal Government contract or contract-like instrument (as described in section 5(a) of this order).

The Order is similar in many respects to the President’s federal contractor minimum wage order.  For example, “[t]his clause shall apply to any workplace locations (as specified by the Task Force Guidance) in which an individual is working on or in connection with a Federal Government contract.  Thus, the mandate will not apply to a federal contractor’s entire workforce.

As with the federal minimum wage, the COVID Order will apply to any new contract, as well as “new solicitation for a contract or contract-like instrument; extension or renewal of an existing contract or contract-like instrument; and exercise of an option on an existing contract or contract-like instrument…”

Notably, the Order does not apply to manufacturers or suppliers of goods, to grants, to contracts with Indian Tribes under the Indian Self-Determination and Education Assistance Act, or to employees who perform work outside the United States or its outlying areas.

Rather, the Order applies to:

  • Procurement contracts for services, construction, or a leasehold interest in real property;
  • Contracts for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.;
  • Contracts for concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. 4.133(b); and
  • Contracts entered into with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public.

And explicitly does not apply to:

  •  grants;
  •  contracts, contract-like instruments, or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act (Public Law 93-638), as amended;
  • contracts or subcontracts whose value is equal to or less than the simplified acquisition threshold, as that term is defined in section 2.101 of the Federal Acquisition Regulation;
  • employees who perform work outside the United States or its outlying areas, as those terms are defined in section 2.101 of the Federal Acquisition Regulation; or
  • subcontracts solely for the provision of products.

Milestone and Effective Dates

  • September 24, 2021: the Safer Federal Workforce Task Force will issue its guidance/draft clause;
  • October 8, 2021: contracting agencies shall take steps to include the clause in contracts entered into on or after October 15, 2021 that are not covered by the Federal Acquisition Regulation;
  • October 15, 2021: the date when the clause should begin appearing in covered contracts.

As we know you are, we are anxious to learn more about the task force guidance and clause and will keep you posted as we learn more.

On the eve of the Labor Day weekend, OFCCP notified federal contractors of the availability of updated census data for use in determining the AAP availability of women and minorities:  Equal Employment Opportunity Tabulation (EEO Tab).  While the data is not 2020 census data, it is based on 2014 through 2018 American Community Survey census data, which is updated from the 2006 through 2010 data OFCCP has previously required contractors to use for availability in AAPs.  According to OFCCP, this is the most current availability data accessible.  OFCCP makes no mention of when 2020 census data may be accessible.

The Agency has also posted a website notice regarding the new data, including the requirement that federal contractors “must begin using the 2014–2018 EEO Tabulation (2018 EEO Tab) to develop all written affirmative action programs (AAPs) that commence on or after January 1, 2022.”

Notably, as reflected in OFCCP’s FAQs, the Agency has slightly modified the race and ethnicity categories:

In this tabulation, there are a total of 7 race and ethnicity (Hispanic origin) categories:

  1. Hispanic or Latino origin

Not Hispanic or Latino, one race-

  1. White alone
  2. Black or African American alone
  3. American Indian and Alaska Native alone
  4. Asian alone
  5. Native Hawaiian and Other Pacific Islander alone

And-

  1. Balance of not Hispanic or Latino

OFCCP explains that federal contractors must use the “Balance of not Hispanic or Latino” numbers when determining total minority availability (as they did for “Two or More Races).  As Director Yang alluded to in her remarks last month at the NILG National Conference,  contractors “may” also be required to set utilization goals for specific minorities:

  • The 2014-2018 EEO Tabulation includes a column labeled “Balance of not Hispanic or Latino,” which includes the balance of non-Hispanic individuals who reported multiple races or reported some other race alone. For OFCCP AAP purposes, when determining minority availability, contractors must include the information from the “Balance of not Hispanic or Latino” column. However, when the percentage of a particular minority group is substantially less than would be reasonably expected given the availability of that particular group, OFCCP may require the contractor to establish separate goals for that particular group. Therefore, when determining the availability of disaggregated race or ethnicity groups, do not use the information included in the “Balance of not Hispanic or Latino” column. For more information on disaggregated goal-setting, visit OFCCP’s FAQ website for https://www.dol.gov/agencies/ofccp/faqs/placement-goals

The FAQs are filled with additional information regarding the census data.  For example, what are “worksite-to-residence commuting flows”?

  • The worksite-to-residence commuting flows focus on where people work (worksite) and provide additional information on where people commute from (place of residence). County-to-county flows are included in tables EEO 1w through EEO 7w. Contractors should consider this data when establishing the reasonable recruitment area for determining availability, see 41 CFR 60-2.14(b)(1).

It is also interesting to note that the number of occupation codes has decreased.  Why?

  • In an effort to reduce the number of empty (suppressed) cells and to increase the reliability of the estimates, the federal consortium reduced the number of detailed occupations from 488 in the 2006-2010 EEO Tabulation to 237 in the 2014-2018 EEO Tabulation. (The number of industrial estimates was also reduced from 90 to 20.) The process was influenced by many factors including, revisions to the 2018 ACS PUMS Occupation Code and more stringent data disclosure rules. More technical information and a crosswalk of occupations from the 2006-2010 EEO Tabulation and the 2014-2018 EEO Tabulation can be found at the Census EEO website here: https://www.census.gov/acs/www/data/eeo-data/eeo-tables-2018/

This change will require some reworking of availability analyses and will likely impact the resulting utilization analyses, and goal setting.

As we dive into the new census data, we will share our insights and thoughts so stay tuned for more.

September is starting off in a hurry with a flurry of activity from OFCCP.  In addition to notices involving pay data and AAP verification, OFCCP also issued a new federal construction contractor Courtesy Scheduling Announcement List (CSAL) identifying an additional 400 construction compliance reviews.  Simultaneously, OFCCP disclosed its Methodology for Developing the CSAL.

Notably, the new CSAL does not replace the 2020 construction contractor CSAL.

Recall that in 2020, OFCCP issued a construction contractor CSAL identifying 200 planned “compliance checks” and a corresponding Methodology document.  While OFCCP subsequently removed compliance checks and focused reviews from the supply and service 2020 CSAL, it did not remove the construction compliance checks from the 2020 construction CSAL, as reflected in a current Agency FAQ.

  • OFCCP has removed compliance checks from the Supply and Service FY 2020, Release – 1 list. Does OFCCP plan to remove compliance checks from the Construction FY 2020, Release – 1 list as well?
  • No. OFCCP plans to proceed with the scheduling of compliance checks on the Construction FY 2020, Release – 1 list.

Thus, those entities identified on the 2020 list must still prepare for compliance checks, while the construction contractors on the 2021 CSAL must anticipate full compliance reviews.  This move is consistent with OFCCP Director Jenny Yang’s statements that the Agency is looking to reinvigorate its oversight of construction contractor AAP compliance efforts.

As with any CSAL, the Agency provides construction contractors with advance notice of an audit so they can take advantage of the time to improve compliance and take advantage of OFCCP’s compliance resources, including the construction contractor Compliance/Technical Assistance Guide and other “best practices.”

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.