OFCCP has published another updated “List of Non-Objectors” for which it intends to release EEO-1 Type 2 data from 2016 to 2020 in response to the FOIA request from the Center for Investigative Reporting. Any contractors who objected through March 3, 2023, were removed from the updated list.

OFCCP first released a list of non-objectors over a month ago. Contractors then had about a week to respond if they believed they should be removed from the list because they were not a federal contractor or had submitted objections last fall. The updated list comes about one month after OFCCP released a second version of the list of non-objectors, removing any contractors who had responded to OFCCP by the previous mid-February deadline.

WHY IT MATTERS

OFCCP states this “will be the final posting of a list of non-objectors.” Any entities remaining on the latest list have until March 17, 2023, to notify OFCCP if they are improperly on the list.

If a response is not submitted by the deadline, OFCCP will release the Type 2 data for each contractor on the list. The data will be released to the Center for Investigative Reporting and posted on the OFCCP’s website at https://www.dol.gov/agencies/ofccp/foia/library/Employment-Information-Reports.

THE BOTTOM LINE

Any entity remaining on OFCCP’s list that objects to releasing the requested EEO-1 data must notify OFCCP by March 17, 2023, at 11:59 PM EST.

Objections must be sent to OFCCP-FOIA-EEO1-Questions@dol.gov and include, at a minimum:

  1. All addresses associated with the entity for the reporting years in which the entity is listed;
  2. The entity’s EEO-1 unit number; and
  3. Any other entities associated with the organization that are covered in the objection, with the EEO-1-unit numbers and addresses for those entities (subsidiaries, merged companies, acquisitions, and so on).

BETWEEN THE LINES

OFCCP notes it has “not yet made any determinations regarding the substance or merit” of contractors’ objections. The contractors who submitted an objection have been removed from this initial disclosure to the Center for Investigative Reporting, but their Type 2 data may still be released later, following OFCCP’s review and determination of the objections.

Jackson Lewis’ attorneys will continue to monitor this matter. If you have questions, please contact the Jackson Lewis attorney with whom you regularly work or a member of the Affirmative Action, OFCCP and Government Contract Compliance Group to discuss.

This year, employers in California have updated pay data reports to submit to the state’s Civil Rights Department (CRD). Senate Bill (SB) 1162, passed in 2022, updated previous employee pay data reporting obligations and created an entirely new obligation to pay data reporting related to “employees hired through labor contractors.” This year, these pay data reports are due by May 10th.

In January, the state issued Frequently Asked Questions to assist employers to navigate these new requirements—in particular regarding the requirement to submit pay data reports on “labor contractor employees.” Read more.

OFCCP has announced the rescission of the Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption rule adopted in January 2021 by President Donald Trump. The rescission is to be posted in the Federal Register on March 1, 2023.

In November 2021 OFCCP published a proposal to rescind the rule on the basis the rule was inconsistent with Title VII. In its communications announcing the rescission, the Agency stated

the rescission ensures a return to the department’s prior policy and practice in place during the presidencies of George W. Bush and Barack Obama – of interpreting and applying the religious exemption in Executive Order 11246 consistent with Title VII principles and case law.

OFCCP Director Jenny Yang published a blog entitled Protecting Workers and Safeguarding Religious Freedom, coinciding with the rescission of the rule in which she explained

[t]he 2020 rule also weakened nondiscrimination protections for employees of federal contractors, objectives of Executive Order 11246 to ensure economy and efficiency in federal contracting and to promote equal employment opportunity. With the rescission of the rule, we are returning to a longstanding policy in place for more than 17 years, under the administrations of both George W. Bush and Barack Obama, to determine the applicability of the religious exemption by applying established case law and principles to the facts and circumstances of particular cases.

Director Yang’s blog went on to explain that the rescission of the entire rule means the Agency will return to its “prior approach of aligning the Executive Order 11246 religious exemption with Title VII case law as applied to the facts and circumstances of each case.” To be clear, the rescission of the rule preserves the Executive Order 11246 religious exemption and

does not change religious entities’ ability to pursue federal contracts.

OFCCP has created a landing page to house information about the rescission of the rule.

As yet another update to this ongoing story, OFCCP has again pushed out the date by which contractors can notify OFCCP of their desire to object to production by the Agency of EEO-1 data in response to the Center for Investigative Reporting.

By way of notice on its OFCCP Submitter Notice Response Portal, the Agency has posted this update of actions the Agency will taking:

  • OFCCP is extending the time for contractors to respond from February 17, 2023, until March 3, 2023.
  • OFCCP will post an updated list of non-objectors no later than February 17, 2023. This updated list will remove contractors that OFCCP has identified as incorrectly included on the February 2, 2023 list, including contractor responses submitted by February 10, 2023. It will also remove all contractors that submitted objections after the publication of the February 2, 2023 list until February 10, 2023, while OFCCP evaluates these objections.
  • After the close of the response period on March 3, 2023, OFCCP will publish a second updated list by March 10, 2023, which will remove contractors that submitted objections after February 10, 2023 and by March 3, 2023, while OFCCP evaluates these objections. Contractors will then have one final opportunity to contact OFCCP no later than March 17, 2023, if they believe their company was improperly listed.

With the latest update, OFCCP has indicated it will now accept objections filed by contractors for the first time. However, the objection “must include an explanation as to why the contractor did not object in response to previous notices that OFCCP has issued, and why there is good cause for OFCCP to accept the objection at this point.”

OFCCP will then determine if there is good cause for why the objection was not filed in response to the previous notices provided by the agency, and as a result may, at its discretion, consider the substance of the late-filed objection.

All responses must be received no later than March 3, 2023, at 11:59 p.m. EST, via the OFCCP-FOIA-EEO1-Questions@dol.gov e-mail address and must include your organization’s EEO-1 unit number(s). 

The notice also provided an update on the on-going litigation involving the FOIA request reporting that “the Department of Labor filed an Answer to the Complaint on January 18, 2023. An initial Case Management Conference before Senior Judge William Alsup is scheduled for February 16, 2023.”

We will continue to report updates – stay tuned!

As an update to our report last week, OFCCP has announced an extension of the deadline for contractors to confirm their desire to have their EEO-1 data withheld from production in response to the pending Center for Investigative Reporting FOIA request.

In a statement posted on the FOIA objection portal, OFCCP instructed:

This is a final notice to all contractors that we are extending the deadline to February 17, 2023, to respond to OFCCP for any of the following reasons:

  • Your organization has previously submitted an objection to the disclosure of their EEO-1 data;
  • Your organization is on our list of non-objectors and you believe your organization was not a federal contractor during the relevant period; or
  • There are entities associated with your organization that should be covered within the objection that you have already filed. This includes merged companies, subsidiaries, and any additional entity information needed to confirm the objection.

If you believe that your entity is incorrectly included on this list, you must respond to our office as soon as possible, but no later than 11:59 p.m. EST on February 17, 2023, via the email address: OFCCP-FOIA-EEO1-Questions@dol.gov.

OFCCP stated contractors response

must include your organizations’ EEO-1 unit numbers and include information supporting your contention that your entity was not a federal contractor during this period or has previously submitted an objection to release.

In an attempt to give contractors a final opportunity to object to release of their EEO-1 data, OFCCP has posted a list of contractors for whom the Agency will release the reports in response to the FOIA request filed by the Center for Investigative Reporting.

OFCCP’s e-mail message states:

To ensure the accuracy of our list, we are providing one final opportunity for entities to assert that their data should not be released because (a) they were not a federal contractor during the relevant time period; or (b) they believe they previously submitted an objection to the disclosure of their EEO-1 data.

OFCCP is encouraging contactors to consult the posted list. If you believe that your entity is incorrectly included on this list, you must respond to OFCCP’s office by e-mail at OFCCP-FOIA-EEO1-Questions@dol.gov as soon as possible, but no later than 11:59 p.m. EST on February 7, 2023.

OFCCP also has a dedicated Help Desk number (1-800-397-6251) and website with more information about the FOIA request.

In an update on its EEO-1 Component 1 Data Collection landing page, EEOC announced

“the 2022 EEO-1 Component 1 Data Collection is tentatively scheduled to open in mid-July 2023. Updates regarding the 2022 EEO-1 Component 1 Data Collection, including the opening date, will be posted to www.eeocdata.org/eeo1 as they become available.

Last year the reporting period began in April.

We will keep monitoring developments in this area and will update as more information becomes available.

It’s here! OFCCP has finally released the long-awaited latest Courtesy Scheduling Announcement List. As a reminder this is the list of contractors and their establishments that have been selected for upcoming audit by the Agency. This is the second CSAL issued under the leadership of OFCCP Director Jenny Yang.

Per OFCCP, the list comprises 500 contractors and subcontractors that

“OFCCP selected that are required to maintain an Affirmative Action Program (AAP) but did not complete their mandatory annual certification in the OFCCP Contractor Portal as of December 1, 2022”

OFCCP explains in its published its selection methodology that it generated the list

“by downloading federal contracts valued at $50,000 or more from the USAspending database it removed contracts awarded to federal, state, local, municipal, tribal, city, and
foreign governments, school districts, universities and colleges, and construction companies as well as healthcare contracts that fall under OFCCP’s Final Rule: Affirmative Action and Nondiscrimination Obligations of Federal Contractors and Subcontractors: TRICARE Providers, 85 FR 39834 (July 2, 2020). Contract records expiring on or before March 31, 2023, were also removed.”

Per the methodology, OFCCP considered contractor and subcontractor establishments with at least 200 employees as reported in contractors’ 2020 EEO‐1 filings, up from the 50 employee threshold used in the prior list

As a reminder, OFCCP’s Directive 2022-02: Effective Compliance Evaluations and Enforcement will govern OFCP’s administration of this CSAL and the audits initiated from it. This means OFCCP can start initiating audits from the list immediately. Generally, OFCCP District Offices schedule audits as they have capacity to handle them and as the audits from the previous CSAL have been exhausted. As a result, scheduling from this latest list will vary.

Given this, in connection with the fact that OFCCP has rolled back the automatic 30-day extensions of the data submission (after timely submission of the AAP), identified contractors should use the advance notice to ensure that their AAP compliance efforts are in order. OFCCP will now grant deadline extensions only in  “extraordinary circumstances.”

We are reviewing the list and methodology and will provide any additional updates or insights as we have them.

On the heels of the filing of the Center of Investigative Reporting lawsuit alleging OFCCP is not properly responding to its FOIA request for federal contractor 2016-2022 EEO-1 Type 2 Reports, the Agency is notifying companies for which it does not have a record of an objection, that the Agency intends to release the requested EEO-1 Data after the start of the new year.

In an e-mail message sent today OFCCP states:

The objection period is now closed, and we are sending this message to confirm we have not received an objection from your organization regarding release of the requested data. Because we have received no objection, we are providing your organization with notice that its Type 2 EEO-1 data is subject to release under FOIA, and OFCCP intends to release this data after January 2, 2023.  

The message goes on to provide instructions for organizations to contact OFCCP as soon as possible but no later than January 2, 2023 if they believe OFCCP has reached this determination in error (e.g., the company did in fact file objections by the deadline or believes it was not a federal contractor during the requested time period). We are aware of a number of contractors who have received this message despite filing objections during the 60-day objection period earlier this fall.

The notice goes further to explain:

If you object to release for any other reason, you may provide the basis for your objection, as well as any explanation as to why an objection was not submitted within the 60-day timeframe that ended on October 19, 2022, that OFCCP provided. If OFCCP determines that there is good cause for why your organization’s objection was not filed during the original 60-day objection period, OFCCP may, at its discretion, consider the substance of the late-filed objection.

In acknowledgement that OFCCP’s contact information may not be accurate, the notice states in bold, underline text that if the recipient of the e-mail is “not the appropriate contact for this notice, please forward this message to the appropriate department within your organization.”

The contact information for OFCCP is:

National FOIA Office
Office of Federal Contract Compliance Programs
U.S. Department of Labor
Helpdesk Number: 1-800-397-6251
Email: OFCCP-FOIA-EEO1-Questions@dol.gov

On the eve of the Thanksgiving holiday, OFCCP has published proposed modifications to the Scheduling Letter and accompanying Itemized Listing. The deadline to submit comments on the proposed changes is January 20, 2023.

As a reminder, while OFCCP gives advance notice of audits through the CSAL, a contractor’s audit does not commence until it receives the official, OMB approved Scheduling Letter and Itemized listing which sets forth the data and documentation required for submission.

The last substantial revision to the scheduling letter occurred in 2014 when OFCCP added, among other things, individualized-level compensation data (Item 19) to the required audit submissions.

The Agency’s current proposed changes to the Scheduling Letter and Itemized Listing eclipse the 2014 addendums.

Just a few of the proposed changes include:

  • Item 19 (new) Documentation of policies and practices regarding all employment recruiting, screening, and hiring mechanisms, including the use of artificial intelligence, algorithms, automated systems or other technology-based selection procedures. (emphasis added)
  • Item 20(c)(previously Item 18)Promotions: For each job group or job title, provide the total number of promotions by gender and race/ethnicity, and identify whether each promotion was competitive or non-competitive. Provide documentation that includes established policies and describes practices related to promotions in the submission. Also include the previous supervisor, current supervisor, previous compensation, current compensation, department, job group, and job title from which and to which the person(s) was promoted. (emphasis added)
  • (new Item 20(d)(previously Item 18)Terminations: For each job group or job title, provide the total number of employee terminations, broken down by reason(s) for termination (e.g., retirement, resignation, conduct, etc.) including gender and race/ethnicity information for each. When presenting terminations by job title, also include the department and job group from which the person(s) terminated. emphasis added)

With respect to compensation, OFCCP is proposing several substantial modifications and additions, including a requirement mirroring the requirements set forth in the Agency’s recent Compensation Directive 2022-01.

  • Item 21 (previously Item 19) Employee level compensation data for all employees (including but not limited to full-time, part-time, contract, per diem or day labor, and temporary employees, including those provided by staffing agencies) as of (1) the date of the organizational display or workforce analysis and (2) as of the date of the prior year’s organizational display or workforce analysis. (emphasis added)
  • Item 22 (new) Documentation that the contractor has satisfied its obligation to evaluate its “compensation system(s) to determine whether there are gender-, race-, or ethnicity-based disparities,” as part of the contractor’s “in-depth analyses of its total employment process” required by 41 CFR 60-2.17(b)(3). Include documentation that demonstrates at least the following:
    • When the compensation analysis was completed;
    • The number of employees the compensation analysis included and the number and categories of employees the compensation analysis excluded;
    • 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.);
    • That compensation was analyzed by gender, race, and ethnicity; and
    • 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.).

The above are just a few of the highlights of the proposed changes. We are continuing to digest all of the proposed changes to the Scheduling Letter and Itemized Listing as well as the supporting statement and will be back soon with additional insights.