As employers are working to file their 2014 Vets-100A Reports, the Veterans’ Employment and Training Service (VETS) is already looking ahead to the future and finalizing the form and filing requirements for 2015.

Finalizing rules proposed earlier this year, in 2015, the VETS-100A Report will be re-named the VETS-4212 Report (named after the U.S. Code section for the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) 38 U.S. Code Section 4212). Additionally, employers will no longer have the ability to file a VETS-100 Report.  This is consistent with OFCCP’s deletion of Section 250 (addressing contracts pre-dating December 1, 2003) from the VEVRAA Regulations.

Additionally, and more importantly, going forward federal contractors will no longer need to report on the different categories of protected veterans.  Instead, employers will be required to provide only aggregate numbers of protected veterans by EEO Category.

VETS says this decision provides at least two advantages.  Under current regulations it was not possible to get an accurate picture of total veterans covered by VEVRAA because a veteran might fall into more than one category and the VETS-100A Report didn’t require a total veteran workforce or hiring number.  Moreover, this change fosters confidentiality as it will be harder to discern the identity of a “disabled veteran” in a small EEO Category.

These new rules will apply to your VETS-4212 Report next year.  For 2014, your VETS-100A remains the same and must be filed by September 30, 2014 unless an extension is obtained.

Via  blog post on the day the proposed pay transparency regulations were officially published in the federal register, OFCCP Director Pat Shiu encouraged “all interested parties” to provide feedback on the Agency’s proposed rules.  The public comment period is open for 90 days and will close December 16, 2014. Let your voice be heard.

 

 

OFCCP recently mailed out close to 2,500 Courtesy Scheduling Announcement Letters to employers providing advance notice of upcoming audits. Up against the fast-approaching end of the Agency’s fiscal year, OFCCP began initiating actual audits immediately after the CSALs were mailed.

While we can certainly expect OFCCP to continue to focus their enforcement efforts on traditional areas of concern (e.g., compensation and new hires adverse impact), employers must craft their defenses to respond to OFCCP’s latest enforcement plays, including in-depth interviews of compensation professionals, robust statistical analyses of pay practices, novel investigations into steering issues, and close scrutiny of compliance with the new veterans and disability regulations. OFCCP’s offense has changed and so must your defense.

Join us for a complimentary webinar on September 24 as we bring you up to date on OFCCP’s new enforcement techniques and offer practical strategies for defending your next compliance review.

As directed by President Obama’s recent Executive Order (EO 13665) on Non-Retaliation for Disclosure of Compensation Information, OFCCP has released its proposed rule addressing Pay Transparency.  The proposed rule sets out how OFCCP proposes to implement the EO’s requirement prohibiting federal contractors and subcontractors from retaliating or otherwise discriminating against employees and applicants for talking about pay.

We are in the process of digesting the 93-page document and will be back soon with a detailed analysis so stay tuned . . .

In connection with its revisions to the regulations covering individuals with disabilities, OFCCP requires employers to use a Voluntary Self-Identification of Disability form to collect information from applicants and employees.  Based on initial feedback from the contractor community, OFCCP provided an electronic, writeable, version of the form.

OFCCP recently requested approval to modify the form to allow for a drop-down menu of the three possible responses, rather than checkboxes or radio buttons.  OFCCP states in its request justification that the requested change comes in response to contractor suggestions.  The revised form would ask the question, “Do you have a disability” followed by a drop-down menu with the three response options:  Yes, I have a disability (or previously had a disability); No, I don’t have a disability; and I don’t wish to answer.  The functionality of the proposed form would also apparently allow an individual to leave the drop-down box empty, as with a hardcopy form.

However, there remains an open question which OFCCP has yet to officially answer:  Do we need to retain a copy of the completed disability form, or simply maintain the responsive data?  At the recent NILG conference, OFCCP unofficially suggested the disability form is a “personnel or employment record” which must be preserved.  However, the provision regarding the disability self-identification form provides that such information shall be maintained “in a data analysis file (rather than in the medical files of individual employees.)  See § 60-741.23(d).”  Subsection 23(d) provides that the information “shall be collected and maintained on separate forms and in separate medical files…”  Thus, the requirement that the information be maintained in a data analysis file appears to be a specific exception to the requirement that a “form” be maintained.   Hopefully OFCCP will clarify this requirement in future FAQs.

In addition to the addition of the drop-down box, OFCCP has also requested approval of the form in 7 languages in addition to English and Spanish.

So come join us at The OFCCP Institute Fall Symposium in Chicago on October 1st & 2nd.  

We will do a deep dive into the many new obligations emerging from President Obama’s recent series of executive orders. We also will examine and explain the OFCCP’s latest enforcement trends.

As you know (if you’ve been reading our blog) the President recently signed several executive orders imposing significant new requirements on employers that do business with the federal government, either as direct “prime” contractors or as subcontractors. These new executive orders will require a quick review and often wide-ranging changes to your employment and human resources policies and practices. In addition, OFCCP is embarking on a wave of compliance audits this Fall during which the Agency will for the first time enforce the new veterans and disability regulations and continue its rapidly changing approach to investigating your pay systems for potential discrimination.

Its time to get educated about the changing (and, let’s face it, expanding) obligations of government contractors.  So come join me and a distinguished faculty of speakers in Chicago for The OFCCP Institute’s Fall Compliance Symposium on October 1-2.   In addition to our faculty of private-sector speakers, we’re fortunate to have Salvador Guerrero Jr. – OFCCP Director of Regional Operations, Midwest Region – as our featured speaker to provide the OFCCP’s perspective.

For the conference agenda and to register, click here.  Hope to see you in Chicago.

As Secretary of Labor Thomas Perez recently announced, OFCCP has updated its guidance to “make clear that discrimination on the basis of transgender status is discrimination based on sex” under Title VII and existing case law.  By e-mail Director Patricia Shiu announced the release of Directive 2014-02, the purpose of which is to “clarify that existing agency guidance on discrimination on the basis of sex under Executive Order 11246, as amended, includes discrimination on the basis of gender identity and transgender status.”  Interestingly the directive does not address protections on the basis of “sexual orientation,” (specifically covered by President Obama’s recent Executive Order) and instead focuses on gender identity and transgender status, which was the subject of a recently decided EEOC decision.  The Directive is effective immediately.

OFCCP’s Directive appears to be additional guidance bridging the gap until the release and implementation of the anticipated regulations addressing Executive Order 13672.  The proposed regulations are due to be published by mid-October.

In connection with the publication of the NPRM on the pay data reporting tool last week, today the proposed Equal Pay Report (Equal Pay Report) and Instructions, as well as a Supporting Statement, were released to the public.  The Equal Pay Report is to be filled annually by employers through a yet-to-be released online filing system.

As set forth in the proposed regulations, the form is designed to collect summary pay data by EEO-1 category for males and females by race/ethnicity. Race, ethnicity and job categories are the same as in the EEO-1 Report.

Additional details are as follows:

  • The filing period for the Report is January 1 to March 31 of each year.  The Report must be submitted annually to OFCCP no later than March 31 of each year.
  •  The Report must include total W-2 Wage and Tax Statement (W-2) earnings and total work hours for the calendar year, January 1 – December 31, for all employees included in your most recent EEO-1 Report.
  • The Report must include all employees whether or not they are still employed on December 31st.
  • Total work hours means all work hours for each employee in each race/ethnicity and job category during the calendar year.

Work hours are calculated as follows:

  • For salaried workers actual hours of work must be provided, if available.  Otherwise, you may use 2,080 hours for full-time employees and 1,040 for part-time employees.
  • For hourly workers, provide actual hours of work.
  • Reported hours may also be adjusted for part year work using date of hire or dates of absence (e.g., vacation or leave), but this is not required.

As with the EEO-1 Report, the EPR will require employers to provide Dun and Bradstreet numbers as well as North American Industry Classification System (NAICS) codes.  OFCCP has indicated its plans to make data received in the EPRs public by industry.

Similar to the EEO-1 Report, employers have the option to file a single-establishment report or multiple-establishment reports for each establishment “regardless of the establishment’s size” as well as a headquarters report.  There is no “consolidated report” requirement as is the case with the EEO-1.

The report will also require employers to certify the accuracy of the report prior to submission.

The window to submit public comments on the NPRM and associated form and instructions will remain open until early November.

Rounding out the festivities in Washington, D.C., OFCCP Director Pat Shiu addressed attendees on the closing morning of the 32nd Annual ILG National conference.  Keeping to the conference theme of “Learning from the Legacy, Focusing on the Future,” Director Shiu’s remarks centered around the “unfinished business of America” to address issues of pay, sexual orientation and gender identity non-discrimination and other areas President Obama has addressed in recent months through his Executive Actions.

Speaking to the federal contractors in the room, Director Shiu impressed upon them her believe that, as employers, they have “the power to create the ripples of hope” and that government contractors can lead the way in effectuating change by modeling best behaviors and best practices.  Director Shiu committed to “facilitating [contractor] success” and acknowledged OFCCP “does not operate in a vacuum.”

This past year has certainly brought a lot of change for the contractor community with still more changes to come.  We will continue to keep you updated on any new developments and additional insights into these “world changing” obligations.  So, as always, stay tuned for more . . .

The second full day of the 32nd Annual ILG National Conference was filled with a multitude of presentations by practitioners and government officials.

The day started with a joint agency presentation by representatives from EEOC, Department of Justice and OFCCP.  One of the “hot topics” discussed was the anticipated release of the long-awaited proposed revisions to OFCCP Scheduling Letter.  Debra Carr, Director of Policy and Program Development for OFCCP, reported she expected release of the Scheduling Letter, currently sitting with OMB, in the next couple of months.

After a day of informative discussions about enforcement topics including, steering, compensation and adverse impact, OFCCP Regional Directors and National Leadership held a panel discussion with attendees.

This year’s conference wraps-up tomorrow with an address from OFCCP Director Patricia Shiu.  We’ll be sure to share any newsworthy notes from her address so be on the lookout for tomorrow’s post.