Now that you’ve successfully filed your 2017 VETS-4212 reports, it’s time to focus on EEO-1 reporting.  Most employers are not accustomed to focusing on EEO-1 reporting going into a new year, but following the filing reprieve in 2017, employers need to make sure they are prepared to file in 2018.

As previously reported, federal contractors and other Title VII employers sighed collective relief when the federal government announced the indefinite suspension of the requirement to report W-2 pay data in the 2017 reporting cycle.

The EEO-1 Joint Reporting Committee later clarified the following:

  • The deadline to file EEO-1 reports for 2017 is March 31, 2018;
  • The Reports must be based on a payroll period in October, November or December, 2017; and,
  •  Filers may use the same EEO-1 form used in 2016.

Perhaps to atone for separating the VETS-4212 and EEO-1 reporting deadlines VETS has also clarified  that all federal contractors may pull a single data snapshot as of December 31, 2017 for both the EEO-1 report to be filed by March 31, 2018, and for the VETS-4212 report to be filed by September 30, 2018.

While the timing of the submission of the reports will remain different, employers looking for efficiencies can use a single snapshot as of the previous year’s December 31st, but are not required to do so:  employers may use any payroll period in the 4th quarter each year.

There is an added benefit for those contractors using a calendar-year AAP cycle:  the December 31, 2017 workforce snapshot may also be used for your 2018 plans.

The U.S. Department of Labor has quietly identified a new Director of the Office of Federal Contract Compliance Programs.  An industry news outlet is reporting DOL has confirmed Ondray T. Harris will be the new head of the agency.  A new update to OFCCP’s website lists him as the Director of the Agency. Interim Director Tom Dowd is listed as the Deputy Director.

According to his LinkedIn profile, Director Harris has been in a Senior Advisor role with the Department of Labor since this Summer.  Immediately prior to that he was a consultant in the Washing D.C. area.  From 2011 to 2013, Harris served as the Executive Director of the Public Employee Relations Board, a “quasi-judicial independent agency that adjudicates labor cases among agencies, labor unions, and union members.”  During the George W. Bush administration, Director Harris was a deputy chief of employment litigation at the Justice Department where he litigated cases “on behalf of the U.S. and military personnel” and “directed and reviewed investigations conducted by the sections attorneys for Title VII and USERRA cases.”  Director Harris began his career in the Virginia Attorney General’s office, where he spent a number of years consulting with agencies and their counsel on employment law issues and “litigated Title VII, Title VI, ADA, ADEA, First Amendment matters, and other employment law cases.”

We will update as soon as additional information and a formal announcement are available.

As of today, OFCCP remains without a new director.  According to Bloomberg News, an industry news outlet, the Department of Labor has confirmed Craig Leen has begun work as a “senior advisor” within OFCCP.  No additional information regarding his role was provided.  We will provide additional updates and details as we learn them.

In an unexpected, but much awaited move, it is anticipated Craig Leen will be named as the new head of the Office of Federal Contract Compliance Programs (“OFCCP”).  While the Department of Labor has not formally confirmed or commented on this development, Leen’s appointment would come more than a year after Patricia Shiu departed the position in November 2016.  Since that time, Tom Dowd has held the position of interim Director at OFCCP.

Craig Leen currently serves as the City Attorney for Coral Gables, Florida.  During his tenure as the city’s top attorney, Leen reportedly “gained national attention for Coral Gables and its propensity to sue high-profile corporations and use the city’s legal muscle to pursue critics.”  In additional to his position with the City, Leen has also been an adjunct professor at Florida International University College of Law where Secretary of Labor, Alexander Acosta, to whom Leen would report, was Dean.

The City of Coral Gables’ biography of Lean notes he earned his law degree from Columbia Law School in 2000, where he was a Harlan Fiske Stone Scholar, and his undergraduate degree from Georgetown University in 1997, where he double majored in Government and Economics.

Little is known about Leen’s position on OFCCP regulations, policies and practices or his intended direction for the Agency.  We will report any updates or insights as soon as we learn them so stay tuned for the latest developments. . .

Effective January 1, 2018, the minimum wage for federal contractors working on or in connection with contracts covered by Executive Order 13658 will be $10.35/ hour.  The announcement was made via posting in the federal register on September 15, 2017.  The wage rate for tipped employees will also increase to $7.25/hour.

This is the third increase to the minimum wage under the Executive Order which first went into effect January 1, 2015.  At that time the minimum wage was set at $10.10/hour.  In 2016, the rate increased to $10.15/hour.  The current rate, which went into effective January 1, 2017, is $10.20/hour.  Pursuant to the terms of the Executive Order, the U.S. Secretary of Labor reviews the rate on an annual basis to determine whether to increase the wage rate.

VETS has announced a 45-day extension to the 2017 VETS-4212 filing deadline.  The deadline has been extended from September 30, 2017 to November 15, 2017.  In a post on it’s website, VETS stated

NOTICE: In order to accommodate the needs of those impacted by Hurricanes Harvey and Irma, Federal contractors who file their VETS-4212 Reports by November 15, 2017 will not be cited for failure to file a timely Report or failure to comply with Federal regulations

As we previously reported, this year’s VETS reporting is unaffected by the changes to the EEO-1 reporting.  However, next year’s reporting can be filed using a snapshot pulled as of December 31, 2018 – which can also be used for the March 2018 EEO-1 report.

In budget measures last week both the U.S. Senate and House signaled the proposed merger between OFCCP and EEOC will soon be nothing but a distant memory.  This action comes on the heels of a recent letter from OFCCP Acting Director Tom Dowd who also questioned the efficiency of the proposed merger in light of available alternatives.

In its approval of the U.S. Department of Labor’s appropriations bill for Fiscal Year 2018, the Appropriations Committee Report from the U.S. Senate reported the following: 

 The Committee rejects the budget’s proposal to begin plans to merge the OFCCP with the Equal Employment Opportunity Commission. The Committee strongly urges OFCCP to find efficiencies and cost savings, including the consolidation of offices, within its current budget structure. This should include a review of the current OFCCP office locations and infrastructure across the country and whether these offices align with current workload needs.

The committee directed OFCCP to report to the Committee with an inventory of current infrastructure and a plan to consolidate and right-size the agency 180 days after enactment of the Act.

On the House of Representative side of things, its recent appropriations bill does not directly address the merger but instead directs “OFCCP to submit a report to the Committees on Appropriations of the House of Representatives and the Senate within 160 days of enactment of this Act on its efforts and the status of implementing each of the GAO recommendations.”

As we previously shared, a September 2016 General Accounting Office report made six recommendations for OFCCP improvements, including to the audit-selection process.

While the wrangling over the OFCCP budget continues, it is important to note that pursuant to an ultimate resolution of proposals, OFCCP’s budget could be significantly reduced from the FY 2017 figure of $105 million.  President Trump proposed a budget of $88 million; the Senate currently proposes a budget of $103.5 million; and the House proposes $94.5 million.

Stay tuned as we continue to monitor the OFCCP/EEOC merger proposal and OFCCP’s budget.

 

 

Following the announcement placing the EEO-1 pay data requirement on indefinite hold, the EEO-1 Joint Reporting Committee has clarified open questions regarding the details for 2017 EEO-1 Reports.  In an e-mail sent to report filers, the Committee clarified:

  • The deadline to file EEO-1 reports for 2017 is March 31, 2018;
  • The Reports must be based on a payroll period in October, November or December, 2017; and,
  •  Filers may use the same EEO-1 form used in 2016.

Keep in mind that EEOC has not yet fully updated its website (FAQs, Fact Sheet, etc.) to reflect this new information, although this clarification has been included on the home page.

As we mentioned in our prior blog post, that based on the recently received clarification from VETS, government contractors for their reporting in 2018 and going forward, will gain the efficiency of pulling a single data snapshot as of December 31 for reporting on both EEO-1 (filed by 3/31/2018) and VETS-4212 (filed between 8/1 – 9/30/2018) reports.  While the timing of the submission of the reports will remain different, employers looking for efficiencies can use a single snapshot as of the previous year’s December 31st.

In a recent letter responding to an inquiry regarding the proposed merger between OFCCP and EEOC, Acting OFCCP Director Tom Dowd detailed the regulatory requirements to undertake a merger, which would take effect in 2019.  He also suggested interim alternatives exist to achieve the efficiencies intended by the merger, implying the proposed merger is unlikely to occur.

Director Dowd’s letter points out that consolidating the two agencies would require:

  • Congressional amendments to VEVRAA and Section 503 to shift enforcement authority to EEOC;
  • Followed by approval of regulations to implement those changes; and,
  • Reconciling the disparate enforcement mechanisms of the two agencies.

Director Dowd states in his letter:

Bridging these and other differences will likely prove time consuming and could delay the expected FY 2019 start for the proposed consolidation, which would result in the concomitant delay in the realization of the intended benefits.

The existing Memorandum of Understanding (MOU) between EEOC and OFCCP could be an alternative vehicle for achieving the efficiencies behind the proposed merger in the short term, says Director Dowd, noting the MOU provides for “contemporaneous opportunities to improve effectiveness and efficiency.”  The MOU currently allows the two agencies to coordinate the handling of complaints, as well as share information and data.

Director Dowd highlights that the MOU provides the agencies with the opportunity to

 be able to achieve desired reforms in the near term, without immediate recourse to legislative and regulatory action.

As discussed in our previous posts, there is widespread opposition to the proposed merger.  More active coordination between OFCCP and EEOC, particularly in the area of systemic discrimination cases, could also raise concerns for contractors.  This is likely not the last we will hear about the proposed merger so make sure to check back for updates.

We have learned the Office of Information Regulatory Affairs (OIRA) has decided to postpone indefinitely effectiveness of the newly created pay data reporting component of the annual EEO-1 report.  In a letter addressed to Acting EEOC Chair, Victoria Lipnic, OIRA explained it has stayed the effectiveness of the new obligation to take time to review data collection requirements and burden estimates associated with the new data reporting obligations.

The letter confirmed EEOC may continue to use the previously approved form to collect race/ethnicity and gender information.  In response, the EEOC issued a statement whereby it confirmed

[t]he previously approved EEO-1 form which collects data on race, ethnicity and gender by occupational category will remain in effect. Employers should plan to comply with the earlier approved EEO-1 (Component 1) by the previously set filing date of March 2018.

This means no EEO-1 report is due in 2017 and the report filed in March 2018 will include only race/ethnicity and gender information, not pay data or hours worked.

We will continue to monitor this situation for further developments so stay tuned for updates.