As anticipated EEOC has announced the opening of the 2019 and 2020 EEO-1 data collection portal today.  The deadline for submission will be Monday, July 19, 2021.  As a reminder, employers are to submit only Component 1 (race and gender) data for these two years.  There is currently no obligation for pay data (Component 2) submissions.

EEOC mailed out notification letters to contact persons and addresses on file.  EEOC states eligible employers that have not received a 2019 and 2020 EEO-1 Component 1 notification letter via U.S. mail should contact the EEOC’s Filer Support Team at FilerSupport@eeocdata.org for assistance.  Employers that have received the notification letter, may now create user accounts using the “Company ID” and “Passcode” provided in the notification letter.

EEOC has also announced that while the on-line portal is available starting today, the large file batch upload will not be available until May 26, 2021.  Until that time filers can use to online form to file.  However, the majority of filers will need to wait until the end of may when filers may upload data files through the EEO-1 Component 1 Online Filing System. The format of the uploaded data file(s) must follow the file layout(s) set forth in the EEOC-approved specifications available beginning Wednesday, May 26, 2021 at EEOCdata.org/eeo1.

EEOC  has also launched a revised website and encourages employers to visit EEOCdata.org/eeo1 for the latest filing updates and additional information.  Additionally,  employers can request assistance as well as find helpful resources, including fact sheets and FAQs through the Filer Support Center located at EEOCdata.org/eeo1/support.

 

 

OFCCP has updated the annual veteran benchmark for 2021.  The new benchmark is now set at 5.6%.  This is down 0.1% from last year’s mark of 5.7%.  The OFCCP relies on the annual national percentage of veterans in the civilian labor force to set the benchmark.

As a reminder, the benchmark is the percentage of total hires who are protected veterans that the contractor seeks to hire in the following AAP year.  The new benchmark is effective for affirmative action plans developed after March 31, 2021.

 

EEOC has finally announced the opening date for the collection of 2019 and 2020 EEO-1 data.  The portal is slated to open April 26 and employers will have until July 19, 2021 to file both years reports.  The agency has extended the duration of the time to file in recognition

of the continuing differential impacts of the pandemic on workplaces nationwide and the requirement to submit two years of EEO-1 data, the EEOC is extending the data collection period this year from 10 weeks to 12 weeks

EEOC directs filers to https://EEOCdata.org for updates and assistance with filing once the portal opens.

We will continue to update with any new develops as well.

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.

In an announcement (EEOCdata.org) that flew under the radar and has, yet, to appear on the EEO-1 reporting webpage, or EEOC’s home page, EEOC now says the filing deadline will be in sometime in July.  When in July?  EEOC had not said:

The EEO-1 Component 1 data collection will open at the end of April 2021 and close in July 2021. The exact closing date will be posted when the data collection launches. Employers will be notified of additional details and how to access the online filing system in April.

The month of April will be busy as EEOC opens the filing window and publishes guidance materials, which may include whether we can report employees who self-identify as a non-binary gender.

This extension offers some reprieve for employers who have been simultaneously working on compliance with the new California Pay Data reporting and Colorado Pay Transparency obligations.

Stayed tuned to this blog and to EEOCdata.org for additional details.

 

As a follow up to the Inauguration Day recession of former President Trump’s Combatting Race and Sex Stereotyping Executive Order, the Biden Administration has issued a White House Diversity memo providing further direction on rolling back any remaining tenants of Executive Order 13950.

The memo, dated March 2, 2021, was published by the Office of Management and Budget (OMB) and

provides detailed instructions for agencies to ensure the complete rollback of agency actions that were taken pursuant to E.O. 13950.

Directed at federal agencies who took action to implement the rescinded Executive Order based on previous OMB guidance, the memo states

agencies must take appropriate actions to ensure the complete reversal of agency action implementing the now-rescinded OMB policy memoranda.

This includes removal of authorization for agencies to include language referencing the Executive Order in contracts and the treatment of contracts which may already include reference to the Order.

The memo also notes that The Office of Personnel Management will “rescind its guidance to Chief Human Capital Officers and Human Resources Directors issued on October 2, 2020, and cease reviewing diversity and inclusion training for compliance with E.O. 13950.”

In addition to reversing the Executive Order, the White House is taking the affirmative step of establishing a White House Gender Policy Council.  By Executive Order signed March 8, 2021, President Biden has directed the creation of the council to

establish and pursue a comprehensive approach to ensure that the Federal Government is working to advance equal rights and opportunities, regardless of gender or gender identity.

In recognizing that “advancing gender equity and equality is a matter of human rights, justice, and fairness” as well as “a strategic imperative that reduces poverty and promotes economic growth, increases access to education, improves health outcomes, advances political stability, and fosters democracy”, the administration believes “the full participation of all people — including women and girls — across all aspects of our society is essential to the economic well-being, health, and security of our Nation and of the world.”  The Gender Policy Council has a multi-faceted list of responsibilities and will involve cross-Agency participation and representation.

And President Biden is calling for quick action.  Within 200 days, the Council is ordered to develop and submit to the President a “government-wide strategy for advancing gender equity and equality in the United States.”

Stay tuned for updates on this, and other actions, by this Administration.

OFCCP has just announced it has revised its Supply and Service FY 2020 audit scheduling list by removing all establishments selected to receive focused reviews and compliance checks.

An amended Corporate Scheduling Announcement List (CSAL)  and amended methodology  have been posted on the agency website.

The evaluations that will proceed include establishment-based compliance reviews, CMCE reviews, FAAP reviews and university compliance reviews.

This is a breaking story.  We will provide an update with more details.

In an e-mail sent out to registered stakeholders OFCCP announced in an effort to “improve efficiency and better integrate compliance assistance efforts,” it is discontinuing the Agency’s Contractor Assistance Portal as of March 1, 2021.

The notice emphasized OFCCP

remains committed to quality compliance assistance

and notes it will strengthen its efforts through improvements to various means of providing assistance, including Compliance Assistance Guides, FAQs, webinars and training through the Contractor Compliance Institute.

The communication encourages stakeholders to contact OFCCP with questions (Toll-Free Help Line: 1-800-397-6251 (TTY 1-877-889-5627) and to utilize the agency’s Help Desk to ask questions on-line.

 

As yet another confirmation that pay equity will be a priority for the Biden-Harris administration, the proposed Paycheck Fairness Act has been reintroduced in the U.S. House of Representatives as H.R. 7.  The proposed legislation has a long history but has never been given a vote in the Senate – it last passed in the House of Representatives in 2019.

In summary, the current version of the Act would address the gender wage gap by amending the equal pay provisions of the Fair Labor Standards Act of 1938 to:

  1. restrict the bases on which pay disparities may be legally justified and exclude “any factor other than sex”;
  2. enhance nonretaliation prohibitions,
  3. make it unlawful to require an employee to sign a contract or waiver prohibiting the employee from disclosing information about the employee’s wages, and
  4. increase civil penalties for violations of equal pay provisions.

Notably, this version of the Act would require OFCCP to:

implement a survey to collect compensation data and other employment-related data (including hiring, termination, and promotion data) and designate not less than half of all nonconstruction contractor establishments each year to prepare and file such survey, and shall review and utilize the responses to such survey to identify contractor establishments for further evaluation and for other enforcement purposes as appropriate.

It seems this new OFCCP obligation could supplement OFCCP plans to require contractors to annually certify their AAP compliance, and seeks to fill the gap while EEOC studies the viability of collecting pay data for all employers through the EEO-1 reporting mechanism. For those of you who recall, this has remnants of the retired EO survey of years past.

There will likely be changes to the bill as it passes through the legislative process.  As always, we will keep you updated with further developments.

Following on the heels of President Biden’s inaugural day revocation of President Trump’s Executive Order on Combatting Race and Sex Stereotyping, OFCCP has officially ceased all activities in connection with enforcement of Executive Order 13950.

Specifically:

  • OFCCP has rescinded the Frequently Asked Questions regarding Executive Order 13950.
  • OFCCP will completely shut down the phone hotline and email address established to accept complaints under Executive Order 13950.
  • OFCCP will administratively close all complaints regarding alleged noncompliance with Executive Order 13950 received through the hotline or any other means

Additionally, the Agency has explicitly stated that

OFCCP will not enforce any of the provisions required by Section 4(a) of Executive Order 13950 contained in government contracts or subcontracts to the extent those provisions have already been included.

To be clear, contractors are not required to provide notice of any commitments under the executive order or include provisions or provide notice in contracts or subcontracts.