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Directed at federal agencies who took action to implement the rescinded Executive Order based on previous OMB guidance, the memo states

agencies must take appropriate actions to ensure the complete reversal of agency action implementing the now-rescinded OMB policy memoranda.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

As part of the many Executive Orders signed his first day in office, President Biden formalized is administration’s commitment to protecting the rights of the LGBTQ+ community by signing an Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.  The Order states:

Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love.

Building on the groundbreaking U.S. Supreme Court decision of Bostock v. Clayton County, Georgia, President Biden has ordered all federal agencies to review” all existing orders, regulations, guidance documents, policies, programs, or other agency actions” that prohibits sex discrimination, including any that relate to the agency’s own compliance with such statutes or regulations and to develop a plan to

revise, suspend, or rescind such agency actions, or promulgate new agency actions, as necessary to fully implement statutes that prohibit sex discrimination . . . .

This Executive Order, in addition to his Executive Order On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government are no doubt only the first set of actions we will see from this Administration in furtherance of diversity and inclusion.

As always, stay tuned for more!

As one of his first actions as President, Joe Biden has issued an executive order overturning the much controversial Executive Order 13950: Combatting Race and Sex Stereotyping.  In addition to additional actions aimed at promoting and ensuring equity, the new Executive Order On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government expressly revokes EO 13950.

We are digesting the full Executive Order and will provide additional details soon.

As suspected, it appears imminent that former EEOC Commissioner will be named as Director of OFCCP under newly inaugurated President Joe Biden.  Ms. Yang’s name appears on the list of Department of Labor leadership as Director of OFCCP though no formal announcement has been made by OFCCP.

We will bring additional details as they develop.

As we are preparing for a change in leadership at OFCCP,  the Agency has published its first Section 503 Focused Reviews Annual Report and issued Section 503 Certificates of Merit.  As many are aware, OFCCP Director Craig Leen is passionate about fighting for and protecting the rights of individuals with disabilities and, as such, has developed a Section 503 compliance and recognition program that no doubt, will be one of his legacies with OFCCP.  We thank Director Leen for his service as OFCCP’s Director and wish him well in his future endeavors.

The Certificates of Merit announced to day go to ten federal contractors which met the established criteria:  (1) meeting the 7% disability goal in at least 50% of all job groups; and, (2) receiving a Section 503 audit closure letter with no violations.  Congratulations go to:

  • Ventech Solutions, Inc.
  • Professional Management Enterprises
  • Quantitech, Inc.
  • Goodwill Industries of Central Indiana
  • Systems Application & Technologies
  • Didlake Incorporated Consolidated
  • Airbus Helicopters, Inc.
  • Centers for Habilitation
  • Paul Hastings, LLP
  • Lighthouse for Blind – New Orleans

These certificates are in addition to the Agency’s highest disability achievement award – the Excellence in Disability Inclusion Award – which the Agency awarded earlier to CVS Health and PepsiCo.

Award of the Certificates of Merit comes on the heels of OFCCP’s first Section 503 Focused Reviews Annual Report, which is a summary of not only audit results but also a summary of the Section 503 audit process, compliance assistance resources and best practices.  Notably, although OFCCP has yet to complete the other 50% of these audits from the March 2019 audit list, as of the end of fiscal year 2020, “OFCCP has not found any discrimination or reasonable accommodation violations in the focused reviews.”  OFCCP has entered into conciliation agreements with contractors to remedy other violations, the top five of which are:

  1. Failure to conduct appropriate outreach and positive recruitment of individuals with disabilities that were reasonably designed to effectively recruit qualified individuals with disabilities;
  2. Failure to invite applicant and employees to self-identify as an individual with a disability;
  3. Failure to document the computations or comparisons pertaining to applicants and hires, as described in 41 CFR 60-741.44(k) and maintain this data for three (3) years;
  4. Failure to design and implement an acceptable audit and reporting system which measured the effectiveness of its affirmative action program; and
  5. Failure to develop and submit acceptable Section 503 AAPs and support data.

As an important note, the Annual Report provides that:

“OFCCP plans to schedule the remaining contractors on the FY 2019 list before scheduling the 250 Section 503 Focused Reviews on the FY 2020 supplement.”

As the new administration and leadership of OFCCP transitions into place we will make sure to continue to bring you update information and insights.