The U.S. Department of Labor announced today another extension of the public comment period for the proposed guidance and regulations implementing The Fair Pay & Safe Workplaces Executive Order 13673.  The deadline for submitting comments is now August 26, 2015.  This is the second extension for this public comment period.

The notice does not specifically address whether the additional extension was in response to the recent Congress Committee chairs letter to the Agency raising concerns with the proposals but does state the extension is to allow “interested parties” more time to comment.

It’s that time again to file your required VETS reports.  Under the Vietnam Era Veterans’ Readjustment Act of 1972 (VEVRAA), federal contractors and subcontractors with contracts of $100,000 or more are required to file reports annually with Veterans’ Employment and Training Service (VETS).

This year contractors will be filing for the first time the new VETS 4212 form.  The VETS-4212 form reduces the reporting obligations for employers requiring only aggregate numbers of protected veterans by EEO Category to be reported.  The previously used VETS-100 and VETS-100A forms have been discontinued and are no longer being accepted by VETS.

VETS announced the VETS-4212 Reporting Application officially opened on August 3, 2015.  Employers have until September 30, 2015 to file their reports unless an extension is obtained.

Frequently Asked Questions and other information about the form is available on the VETS website or by contacting VETS at 1-866-237-0275 or VETS4212-customersupport@dol.gov.

Today, OFCCP released a new outreach and education poster.    The poster, which the Agency explained was based on feedback received during “stakeholder” listening sessions, is not a mandatory posting but provided by the agency to “increase public awareness of OFCCP and its mission.”  The poster highlights obligations of companies doing business with the federal government, stating these companies

must treat workers fairly & without discrimination

and

must pay all workers fairly

The poster also provides OFCCP’s contact information and encourages individuals who believe they may have experienced discrimination to contact OFCCP.

The 33rd Annual Industry Liaison Group National Conference has officially come to a close.  For four days, conference attendees attended a multitude of sessions providing insight and guidance on the latest EEO and Affirmative Action trends.

Highlights of the conference began with Director Patricia Shiu’s opening remarks as well as the EEOC and OFCCP joint presentation discussion pay discrimination.  In the days that followed, practitioners and vendors continued to educate conference-goers on several “hot button” topics, which included:

  • Applicant tracking
  • Recruitment
  • Compensation
  • Disability and Veteran Outreach
  • Steering
  • LGBT

The conference concluded with a panel of prominent industry experts, including Jackson Lewis’ own Mickey Silberman, who provided their views on key takeaways from the conference.  This always entertaining session touched on the topics highlighted above and was followed by a David Letterman style rundown of the Top 10 Things Overheard at the conference.

From the insights provided by the panel, and comments overheard during the conference, it is apparent companies doing business with the federal government, and particularly those responsible for compliance, have a lot on their plates.  As always, this year’s ILG National conference was a great way for these individuals to network and benchmark with their EEO colleagues about the ever-expanding compliance obligations, and even have a little fun along the way.

Today is the official start to the 2015 Industry Liaison Group National Conference where conference attendees will focus on “lessons from our past, strategies for our future” in the world of affirmative action and equal employment opportunity.

Marking the 50th anniversary of the signing of Executive Order 11246 OFCCP Director Patricia Shiu acknowledged in her keynote address to open the conference,

“this year is no ordinary year.”

Director Shiu’s remarks highlighted the Executive Order’s history and reminded conference attendees

“what history taught us we are wise to remember.”

Director Shiu also remarked on the accomplishment this year of the “full inclusion of LGBT into our workplace communities” and reiterated the Agency’s commitment to “keep working” on issues of inclusion and equal opportunity.

While today marked the first official day of the conference, many attendees attended pre-conference sessions yesterday. One of the highlights was the joint EEOC and OFCCP presentation on compensation. Jeff Burstein, Supervisory Trial Attorney for the EEOC Newark Office and Bob LaJeunesse, Branch Chief, Expert Services for OFCCP, co-presented on pay equity issues impacting federal contractors.

The EEOC’s section of the presentation focused on recent case developments and litigation implications of pay equity while the OFCCP’s portion provided insights and commentary on the Agency’s current approach to compensation discrimination.

Dr. LaJeunesse, who has been in his position with OFCCP for a short six months, detailed the Agency’s three-step investigative process to:

  1. Identify measureable differences in compensation,
  2. Identify if the difference is between “comparable employees”; and
  3. Assess whether there are legitimate explanations for the differences.

He discussed with nice detail the Agency’s view of “similarly situated” employees, utilizing “wage compensating differentials” that include tasks performed, qualifications or skills, effort, and working conditions.

The joint sessions concluded with both speakers fielding questions on a variety of topics, including the applicability of potential pay impacting factors like performance and prior experience.

The sessions scheduled for the remainder of the conference will continue to build upon the information shared and lessons learned from the pre-conference sessions.

Stay tuned for our updates this week as the conference continues.

Following announcement of a two-week extension of the public comment period for proposals implementing Executive Order 13673, on July 15, 2015, a group of Congressional Chairs submitted a letter to the U.S. Department of Labor and the Federal Acquisition Regulatory Council requesting the agencies withdraw their pending proposed guidance and rule.

The letter, signed by eight congressional committee and sub-committee chairs, requested withdrawal of the agencies proposals for implementing the Fair Pay and Safe Workplaces Executive Order citing concerns the proposals put into place

“new burdensome and unnecessary requirements that will delay an already cumbersome federal procurement process and will impose additional costs on employers, federal agencies, and American taxpayers.”

In the event the DOL and FAR Council decline to withdraw the guidance and rule, the Committee Chairs requested a 90-day extension of the public comment period to

“ensure that interested parties have adequate time to review, assess and provide meaningful input.”

The Chairs requested the Agencies respond to the letter by July 29, 2015.   We will provide an update on the Agencies’ response as soon as it is available.  Stay tuned.

The Department of Labor has extended the public comment period for the U.S. Department of Labor’s proposed guidance (“DOL Guidance”) implementing President Obama’s “Fair Pay and Safe Workplaces” Executive Order (E.O. 13673).  The Department of Defense has done the same with respect to the Federal Acquisition Regulatory (“FAR”) Council  proposed regulations (“FAR Proposed Rule”) implementing the Executive Order.  The public comment period now closes August 11, 2015.

The extension of the deadline allows employers more time to evaluate the effect of the new obligations and potential unintended consequences.  Mickey Silberman was quoted this morning in the Wall Street Journal’s Risk and Compliance Journal speaking about the reality of companies taking the time

to assess the value of the government contracts they have and weighing that against the greatly increased cost of doing business with the federal government.

In preparation for the new regulations, Mickey suggested companies:

need to budget for higher costs, should identify a person or team to handle coordinating the collecting of information from its various departments and subcontractors, and should make sure its lawyers understand the ramifications of setting cases versus the larger-picture risk of adding a violation to the total.

With today’s extension, there’s still plenty of time to comment on the impact of these proposed rules and guidance – let your voice be heard.

 

This week OFCCP sent its final regulations implementing Executive Order 13665 (“Non-Retaliation for Disclosure of Compensation Information”), or commonly referred to as the Pay Transparency Executive Order to the Office of Management and Budget for approval.

OFCCP published the proposed rules on September 17, 2014 and the public comment period closed December 16, 2014.

Final approval is expected from OMB sometime later this summer.  The final rules are not yet available to the public but we will provide updated information as soon as we have it.

The Obama Administration has made it clear that closing the persistent gender “wage gap” is one of its top EEO priorities. As such, OFCCP has ramped up its enforcement of equal pay laws, including rewriting its compensation investigation guidelines with Agency Directive 307, revamping its Division of Statistical Analyses, and reinventing the pay data component of audit submissions with the new compliance evaluation scheduling letter.   Similarly, EEOC has identifies enforcement of the Equal Pay Act as an Agency-wide priority in its 2013-2016 Strategic Enforcement Plan.  As a result, now more than ever, it’s important to proactively analyze your pay data for potential discrimination before the federal government comes knocking on your door.

And if that weren’t enough, President Obama recently announced new tools that will soon make finding pay discrimination even easier for OFCCP and EEOC.   The “Pay Transparency” Executive Order gives employees the ability to freely discuss pay without fear of retaliation from employers. The planned “Equal Pay Report” will require federal contractors to submit summaries of employee pay to the government by EEO-1 category, race, and gender.

And while it is becoming critically important for employers to do EEO pay self-analyses on a proactive basis, and certainly before submitting any compensation data to OFCCP in an audit, it’s equally important to do so under attorney-client privilege.

As our colleague Scott Pechaitis recently wrote for our Wage and Hour blog, Is Your Expert Analysis Protected by the Attorney-Client Privilege?, “when obtaining an analysis from an expert consultant, attorneys must take care to establish and maintain the attorney-client privilege. Otherwise, the analysis may end up becoming your adversary’s best piece of evidence.”

At the end of the day, make sure you are doing your proactive pay analyses and doing them under privilege.

In a week full of front-page news, the United States Supreme Court has agreed to again review the appropriateness of the University of Texas at Austin’s race-based admissions process in the case of Fisher v. University of Texas at Austin.

The Supreme Court first reviewed the school’s consideration of race as a component of its admission process almost a year ago and remanded the case back to the Fifth Circuit Court of Appeals for reconsideration.  Upon re-review the Fifth Circuit again held the University’s practice of using race a factor in its admissions decisions was constitutional. Fisher filed an appeal arguing the Fifth Circuit did not follow the Supreme Court’s direction when conducting the subsequent review.

While the ultimate outcome of this case will certainly impact affirmative action programs of institutions of higher education, its effects on other types of non-admissions affirmative action programs, such as though enforced by OFCCP, remains unknown.