OFCCP announced today it will launch the Notification of Construction Contract Award Portal (NCAP) on August 26, 2022.  While the NCAP is not yet live, OFCCP has launched an NCAP informational page with background information.  The page will eventually include FAQs, how-to videos, and a User Guide.

The purpose of the NCAP is distinct from the supply and service Contractor Portal for AAP certification (which does not apply to construction contractors) and the new “OFCCP Submitter Notice Response Portal” for submission of federal contractor objections to disclosure of EEO-1 Reports under the Freedom of Information Act (FOIA).

The NCAP is specifically designed to be a more efficient way for federal construction contractors and subcontractors (and others) to fulfill their obligations under OFCCP construction contractor regulations (41 C.F.R. § 60-4.2 Solicitations) to provide notice of contract and subcontract awards of $10,000 or more.

NCAP provides contracting officers, contractors, and applicants seeking federal assistance for construction projects (such as state DOTs), a more efficient and secure electronic means to submit a notice to OFCCP within 10 working days of an award of a federal or federally assisted construction contract or subcontract in excess of $10,000. These notification requirements can be viewed at 41 CFR 60–4.2.

For federal construction contractors and subcontractors, the notice obligation is triggered by a covered contract, which should include the following section of the “Notice of Requirement for Affirmative Action To Ensure Equal Employment Opportunity (Executive Order 11246):”

The Contractor shall provide written notification to the Director of the Office of Federal Contract Compliance Programs within 10 working days of award of any construction subcontract in excess of $10,000 at any tier for construction work under the contract resulting from this solicitation. The notification shall list the name, address and telephone number of the subcontractor; employer identification number of the subcontractor; estimated dollar amount of the subcontract; estimated starting and completion dates of the subcontract; and the geographical area in which the subcontract is to be performed.

Although it may be rare for this notice obligation to apply to non-construction federal contractors, it can in a limited circumstance:

All nonconstruction contractors covered by Executive Order 11246 and the implementing regulations shall include the notice in paragraph (d) of this section [Notice of Requirement for Affirmative Action To Ensure Equal Employment Opportunity (Executive Order 11246)] in all construction agreements which are necessary in whole or in part to the performance of the covered nonconstruction contractnonconstruction contractors shall give written notice to the Director within 10 working days of award of a contract subject to these provisions. The notification shall include the name, address and telephone number of the contractor; employer identification number; dollar amount of the contract, estimated starting and completion dates of the contract; the contract number; and geographical area in which the contract is to be performed.

OFCCP explains the purpose of these notice requirements and the NCAP:

Considering the federal government’s historic investments in the country’s infrastructure, this information will play a critical role in enabling OFCCP to more efficiently schedule and perform compliance reviews to ensure that companies doing business with the federal government fulfill their equal employment opportunity commitments.

We will continue to monitor this and share additional thoughts after the NCAP goes live on August 26th.

According to OFCCP, on June 2, 2022, the Center for Investigative Reporting sent OFCCP a request for the disclosure of

 . . .Type 2 EEO-1 reports for all federal contractors, including first-tier subcontractors, from 2016-2020….

The Center for Investigative Reporting, and other persons and organizations, have a history of requesting EEO-1 reports for various employers and/or industries.  Importantly, this most current request is specifically for the EEO-1 Type 2 reports  – the Consolidated EEO-1 report (as opposed to a headquarters (Type 3) or individual establishment report (Type 4) and is not a request for contractor’s Component 2 pay data.

Under the Freedom of Information Act (FOIA), on which the Center for Investigative Reporting is relying to request the information, requestees are entitled to object to the disclosure of the requested EEO-1 Reports.  The published notice states:

OFCCP has reason to believe that the information requested may be protected from disclosure under FOIA Exemption 4, which protects disclosure of confidential commercial
information, but has not yet determined whether the requested information is protected from disclosure under that exemption. OFCCP is requesting that entities that filed Type 2
Consolidated EEO-1 Reports as federal contractors at any time from 2016-2020, and object to the disclosure of this information, submit those objections to OFCCP within 30 days of the date
of this Notice.

To facilitate noticing contractors of the request and to handle objections, OFCCP has publicly published a Notice of the Request, as well as launched a Response Portal via which federal contractors can submit objections.   The website also includes helpful FAQs.

As OFCCP explains in its Notice of Request, “Exemption 4 to the FOIA protects against the disclosure of ‘trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.’ 5 U.S.C. 552(b)(4).”  If a federal contractor objects to release of an EEO-1 Report, it is “required to submit a detailed written statement as to why the information is a trade secret or commercial or financial information that is privileged or confidential.”  OFCCP will evaluate the contractor’s responses received to determine whether the requested information includes confidential trade secret, commercial, or financial information that should be withheld pursuant to FOIA Exemption 4.  If a contractor does not object, OFCCP will not have a basis to withhold the information.

In order to facilitate their review, OFCCP advises that objections submitted via the Response Portal must include:

  • The contractor’s name, address, contact information for the contractor (or its representative);
  • Should, at minimum, address the following questions in detail so that OFCCP may evaluate the objection to determine whether the information should be withheld or disclosed pursuant to FOIA Exemption 4:
    • What specific information from the EEO-1 Report does the contractor consider to be a trade secret or commercial or financial information?
    • What facts support the contractor’s belief that this information is commercial or financial in nature?
    • Does the contractor customarily keep the requested information private or closely-held?
    • What steps have been taken by the contractor to protect the confidentiality of the requested data, and to whom has it been disclosed?
    • Does the contractor contend that the government provided an express or implied assurance of confidentiality? If no, were there express or implied indications at the time the information was submitted that the government would publicly disclose the information?
    • How would disclosure of this information harm an interest of the contractor protected by Exemption 4 (such as by causing foreseeable harm to the contractor’s economic or business interests)?

Some federal contractors and subcontractors already share EEO-1 Report data with stakeholders and/or the public which may likely impact a decision to object, or to successfully argue that these data are confidential. For those federal contractors and first-tier subcontractors who do not already share EEO-1 data, the Center for Investigative Reporting and others continued pursuit of EEO-1 Report data may bring to a focal point what organizations want to, and can do, about sharing EEO-1 with the first consideration being whether the contractor wants to object and then the implications of objecting.

For those contractors who wish to object to disclosure it is imperative they submit the requested information by the September 19, 2022 deadline. If a contractor does not object, OFCCP will not have a basis to withhold the information.  Thus, the decision should be based on careful consideration of individual contractor situations; a review of EEO-1 Report data; as well as on the advice of legal counsel

We will continue to monitor this situation and provide any notable updates.

There has been lot of talk in the months since OFCCP released Directive 2022-01: Advancing Pay Equity Through Compensation Analysis, with the topic of attorney-client privilege being the primary topic of concern.  So much so that OFCCP Director Jenny Yang addressed the issue in her remarks last month at the NILG National Conference.  Today, OFCCP  released a revised version of Directive 2022-01 that addresses the issue further and describes additional types of documentation contractors can provide in the course of an audit to demonstrate compliance with their obligation to review their “compensation system(s)” under 41 CFR 60-2.17(b)(3), including submission of a detailed affidavit in lieu of producing an analysis.

Director Yang shared in a blog post the major changes of the revised directive:

  1. It explicitly reaffirms the agency’s position that it does not require the production of attorney-client privileged communications or attorney work product.
  2. It  identifies the documentation that OFCCP requires from a contractor to determine that the contractor has satisfied its obligation to perform a compensation analysis.
  3. It explains the documentation required from a contractor when its compensation analysis identifies problem areas to demonstrate that it has implemented action-oriented programs.

In addition, Director Yang explained

(i)n addition, although the original Directive used the phrase “pay equity audit” to refer to contractors’ obligations under 41 CFR 60-2.17(b)(3), this revised Directive instead uses the term “compensation analysis” to avoid any confusion regarding the nature of a contractor’s obligations.

With respect to acceptable documentation demonstrating compliance “[i]f a contractor believes its full compensation analysis contains privileged attorney-client communications or attorney work product” , the Directive provides that contractors now have three options to demonstrate compliance:

  1. A contractor may make available a redacted version of its compensation analysis, provided that the non-redacted portions include the required facts described below.
  2. A contractor may conduct a separate analysis during the relevant AAP period that does not implicate privilege concerns and provide that analysis to OFCCP in full.
  3. A contractor may generate a detailed affidavit that sets forth the required facts described below but does not contain privileged material.

At a minimum, contractors must provide the following details to OFCCP to demonstrate compliance:

  1. when the compensation analysis was completed;
  2. the number of employees the compensation analysis included and the number and categories of employees the compensation analysis excluded;9
  3. which forms of compensation were analyzed and, where applicable, how the different forms of compensation were separated or combined for analysis (e.g., base pay alone, base pay combined with bonuses, etc.);10
  4. that compensation was analyzed by gender, race, and ethnicity; and
  5. the method of analysis employed by the contractor (e.g., multiple regression analysis, decomposition regression analysis, meta-analytic tests of z-scores, compa-ratio regression analysis, rank-sums tests, career-stall analysis, average pay ratio, cohort analysis, etc.).

In the course of the review, if a contractor’s compensation analysis identifies any problem areas (including gender-, race-, or ethnicity-based pay disparities), the Directive explains OFCCP will require documentation that demonstrates compliance with the regulations at 41 CFR 60-2.17(c) that require the contractor to develop and execute action-oriented programs to correct them.  To demonstrate compliance, OFCCP will require at minimum:

  1. the nature and extent of any pay disparities found, including the categories of jobs for which disparities were found, the degree of the disparities, and the groups adversely affected;
  2. whether the contractor investigated the reasons for any pay disparities found;
  3. that the contractor has instituted action-oriented programs designed to correct any problem areas identified;
  4. the nature and scope of these programs, including the job(s) for which the programs apply and any changes (e.g., pay increases, amendments to compensation policies and procedures) the contractor made to the compensation system; and
  5. how the contractor intends to measure the impact of these programs on employment opportunities and identified barriers.

The intent of OFCCP is not to obtain contractor’s privileged analysis, but the Directive makes it clear that

if a contractor does not provide OFCCP with documentation sufficient to demonstrate its compliance with 41 CFR 2.17(b)(3) on the basis that the required categories of information outlined in Section 7(b) are subject to the attorney-client privilege or work-product doctrine, OFCCP will find the contractor has not satisfied its obligations under 41 CFR 60-2.17(b)(3) and 41 CFR 60-2.10(c). OFCCP will not require the production of privileged attorney-client communications or attorney work product.

We will continue to analyze the Directive and share any further insights and clarifications as they develop.

It’s been a busy morning for government contractors!  As the NILG 2022 National Conference in Boston, Massachusetts was coming to a close and EEOC was releasing the NAS study on the EEO-1 Component 2 pay data collection tool, OFCCP was communicating with contractors about the OFCCP Contractor Portal.

In an e-mail communication, OFCCP provided a number of clarifications and additional information about the portal.

First, the Agency confirmed

OFCCP has not extended the June 30 deadline. Contractors that have not yet registered and certified whether they are in compliance with their AAP obligations should do so as soon as possible.

Second, OFCCP warned that

[c]ontractors that have not certified will be more likely to appear on OFCCP’s scheduling list than those that have certified their compliance with AAP requirements. Contractors that have not certified compliance include those that have not utilized the Portal to certify whether they are meeting their AAP requirements, as well as those contractors that have certified they have not developed or maintained an AAP.

Additionally, the notice reported, as reported by OFCCP Director Jenny Yang during her NILG National Conference keynote speech, that

contractors that have not certified compliance by September 1, 2022, will be included on a list provided to federal agency contracting officers. The purpose of this list is to enable contracting agencies to notify contractors of their certification obligations, thereby assisting OFCCP in securing compliance.

OFCCP continues to offer technical assistance for contractor who have not yet certified.  OFCCP offers a user guide and frequently asked questions and directs contractors to contact the OFCCP Contractor Portal Technical Help Desk  or call 1-800-397-6251 with any questions.

As announced, as the 2022 NILG National Conference was coming to a close, EEOC released the long-awaited National Academy of Sciences report on the EEOC’s Pay Data Collection Completed in 2020. The study, titled Evaluation of Compensation Data Collected Through the EEO-1 Form, is a dense read at over 275 pages.

The high level conclusion from EEOC’s perspective is the study

confirms pay data collection is a key tool to fight discrimination.

The report found however, that the process of collection, as well as the actual data to be collected had flaws.  The report also recommends EEOC embark in a trial to field test the process if  decides to roll out a nationwide data collection tool.

Former EEOC Commissioner Vicki Lipnic, who previously addressed pay equity at previous NILG National Conferences and was on stage as part of the conference’s wrap up, offered her insight that the process to develop, test and implement a new pay data collection tool is a lengthy process that can take years to complete.

There will undoubtedly be a variety of thoughts, opinions and take-aways from the report shared by many in the coming days and weeks.  We will be reviewing the detailed report and will be back with our insights.

The National Academies’ webinar about the report will be held on August 2 from 1 pm – 3 pm (ET), and people can register here.

 

 

The final day of the NILG 2022 National Conference is upon us.  As has become  tradition, conference attendees heard from a panel of the OFCCP Regional Directors who shared insights from their respective regions and provided thoughts and recommendations for contractors.

The themes of early resolution, continued focus on systemic pay and hiring cases and increasing resources as well as cross-region coordination in audits prevailed in the RDs comments.

The Director’s reported the continued work on proactive communications and analysis by contractors is appreciated and helpful during the audit process.

Following a presentation about Thompson Island, the destination of the conference’s gala, the 2022 conference concluded with a recap discussion by the NILG’s Advisory Committee.

As this year’s conference comes to a close, we reflect on the good times reconnecting with friends, the information sharing amongst the agency and contractors and Boston’s hospitality.

We look forward to seeing everyone next year in Phoenix, Arizona!

During her keynote speech to open the second day of the NILG 2022 National Conference, EEOC Vice Chair Jocelyn Samuels hinted that an announcement involving the Agency and pay equity would be coming soon.

True to her word, this afternoon EEOC announced it will be holding a press conference tomorrow at 12:00 ET to discuss the results of an independent study conducted by the National Acad­emies of Sciences, Engineering, and Medicine’s Committee on National Statistics.  As a reminder, following the contentious collection of pay data in 2020, the EEOC commissioned the study to examine the EEO-1 Component 2 pay data reporting and recommend the most effective use for the pay data as well as identify areas of improvement for future collections.  The release of the report has been anticipated for months.

With respect to pay data collection, the Vice Chair explained  the tool is intended to assist employers identify issues to allow them to address pay discrimination.

Vice Chair Samuels also shared with conference attendees the Agency’s thoughts on the impact of COVID on workforces, its position on vaccines and testing as well as its stance on COVID related accommodations.  She spoke about the impact of recent U.S. Supreme Court cases on gender identify, sexual orientation and non-binary individuals and pregnancy discrimination.  She also spoke to the Agency’s Artificial Intelligence strategic initiative and enforcement of retaliation and harassment.  She noted that the Agency is in the process of updating its Strategic Enforcement plan and is planning to seek input from stakeholders into its development.

Noting that

[e]quity is the rising tide that lifts all boats.

Vice Chair Samuels’ message shared the sentiment and the overall theme and focus of the conference.

Stay tuned for more updates tomorrow!

Hello from the opening day of the NILG 2022 National Conference in Boston, Massachusetts and it seems like the crowds have returned following last year’s hybrid conference in Nashville, TN.

With the theme of “Be the Beacon of Change” the first full day of this year’s conference kicked off with a full slate of great sessions.

OFCCP Director Jenny Yang started the day with the morning’s keynote address – and while she has attended the conference in the past in her role with the EEOC, and addressed the conference last year via video, this was her first time attending the NILG in person in her current OFCCP Director role.  Addressing attendees from the Boston-themed stage, Director Yang shared her vision for the Agency’s continued work to assist employees of federal contractors and continually emphasized her desire to get feedback and input from the contractor community along the way as OFCCP works to increase its “strategic impact.”

Director Yang spoke intently about the Agency’s work, noting

equality of opportunity is not a zero sum game.

Detailing OFCCP’s focus of the change occurring in the working world, Director Yang shared the Agency will have 100 new hires by the end of September and will be working to train the new compliance officers as well as strengthen the field’s data analytics skills.

Talking specifically about some of the Agency’s initiatives, she noted OFCCP is revisiting scheduling methodology and admitted its been “a difficult nut to crack.”  The Agency has been focusing on a more risk-based approach to scheduling with emphasis on industries/contractors who have received or will be receiving infrastructure moneys.  Director Yang detailed how the Agency will be focusing on construction contractors as part of this, including reviving the Mega Projects program as well as looking into analyzing job across multiple works sites within a MSA.

Director Yang discussed OFCCP’s enforcement agenda, including discussion of the recent March 2022 Directives on Compensation and Enforcement .  She specifically took a moment to confirm and clarify OFCCP’s position regarding privileged pay analyses – OFCCP does not intend to seek a contractor’s privileged analysis.  Instead, the Agency is looking only for evidence of compliance with contractor’s regulatory obligation to evaluate its compensation systems, which she noted

is one of the most important steps in addressing pay discrimination

With respect to the enforcement directive, Director Yang explained the rationale behind the Agency’s rescission of the automatic audit submission extension, explaining with the advent of the Contractor Portal contractors “don’t have much need for extensions.”

With respect to the Portal, Director Yang announced OFCCP has shared the Agency’s list of those that have not certified compliance with contracting agencies so they are aware of those that are not in compliance.

Director Yang announced the Agency intends to hold a listening session, (much like it did with respect to pay, establishment based reporting and non-binary gender data collection) on “tech-based hiring.”

In her closing remarks Director Yang asked for “grace of understanding” as OFCCP seeks to continue to collaborate and encourages those to be candid about their challenges.

Following her keynote, Director Yang joined EEOC Chair Charlotte Burrows and Wendy Chun-Hoon, Director, Women’s Bureau, for a panel discussion regarding building a culture of equity for women and people of color in the workplace.

We were thrilled to have Director Yang kick off this year’s conference and look forward the next few days together.

Today, OFCCP under new Director Jenny Yang published a 2022 Corporate Scheduling Announcement List (CSAL) identifying those establishments of federal contractors and subcontractors that it will schedule for compliance evaluations – more commonly known as “audits” – over the next year or more.  Included with the new CSAL is OFCCP’s methodology for selecting contractors for audit.

New for this CSAL is OFCCP’s Directive that contractors may not enjoy a 45-day grace period before the Agency begins to schedule the audits, as has been the case for years.  Directive 2022-02 – Effective Compliance Evaluations and Enforcement provides that “OFCCP may begin scheduling contractors upon the publication of the CSAL.”  While the apparent intent of the CSAL is to provide advance notice, those who are scheduled for an audit on the heels of this 2022 CSAL may not receive much of a heads up.  Nonetheless, it remains to be seen whether the Agency will immediately begin scheduling audits from the 2022 CSAL, given that it is still working to schedule or complete audits from the 2021 CSALs.

Generally speaking, OFCCP will schedule new audits from the 2022 CSAL as District Offices have capacity to handle them, which means the timing of the receipt of a “scheduling letter” triggering the audit is unpredictable.  However, OFCCP will often reach out to the contractor shortly before the sending a scheduling letter to confirm contact information for the company official to whom the scheduling letter will be sent.

Where possible, identified contractors should use the advance notice to ensure that their AAP compliance efforts are in order and that data will be ready to supply to OFCCP.

That is especially true now, given that automatic 30-day extensions of the data submission deadline are a thing of the past.  As also included in Directive 2022-02 – Effective Compliance Evaluations and Enforcement, OFCCP will now grant deadline extensions only in  “extraordinary circumstances.”

The June 30, 2022 deadline is quickly approaching for covered supply and service federal contractors and subcontractors to certify in the Contractor Portal they have developed and maintained AAPs.  This week, OFCCP added an option allowing bulk upload and modification of establishments and functional affirmative action plan (FAAP) business units.

Notably, OFCCP limits this functionality to contractors with 100 or more establishments or FAAP business units:

Companies with 100 or more establishments or functional/business units may request to have their establishments or functional/business units modified or uploaded in bulk by using the Bulk Upload/Modification Template.

Also notable is that this option is not self-executing.  Rather, any contractor wishing to use the bulk option must complete the data template and “Email the completed Bulk Upload/Modification Template as an attachment to OFCCPAppsSupport@dol.gov. In the subject line enter ‘Bulk Upload/Modification Request’.”  The contractor must also request bulk upload on company letterhead and include contact information for a responsible company representative.

OFCCP will then notify the contractor by email when the upload is complete, at which point the contractor must, “Register the Parent Company again using the ‘Identifiers Known Path’” and then check for and remove any establishments that have closed since the contractor filed its 2018 EEO-1 Report.  Even though those establishments will not appear in the bulk upload template, OFCCP will not remove them from the Portal.

Thus, while the bulk upload/modification option is more cumbersome than it might be, it may still offer some efficiencies to contractors with 100 or more establishments or FAAPs.

In support of this option, OFCCP has offered:

We will continue to provide updates and insights as we learn of them.