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.

 

Following up on Interim Director Tom Dowd’s recent commitment for more agency transparency and communication, OFCCP has announced three upcoming town hall meetings.  In its announcement, OFCCP stated the purpose of the town halls were to obtain contractor views and learn about contractor experiences implementing and managing nondiscrimination and equal employment opportunity requirements to allow OFCCP “”to enhance the scope and quality of [its]compliance assistance through contractor outreach and education materials.”  The announcement also shared that OFCCP is redesigning all of its “fact sheets, educational webinars, frequently asked questions, and staffed Help Desk to assist contractors with understanding and implementing these obligations.”

The meetings will be open to the public, but registration will be required.  The registration details are as follows:

1. Date: September 19, 2017
Time: 8:30 AM to 1:00 PM
City Location: Washington, DC
Registration Link: https://www.eventbrite.com/e/ofccp-compliance-assistance-town-hall-registration-35797146228

2. Date: September 26, 2017
Time: 8:30 AM to 1:00 PM
City Location: San Francisco, California
Registration Link: https://www.eventbrite.com/e/ofccp-compliance-assistance-town-hall-registration-36208818551

3. Date: September 28, 2017
Time: 8:30 AM to 1:00 PM
City Location: Chicago, Illinois
Registration Link: https://www.eventbrite.com/e/ofccp-compliance-assistance-town-hall-registration-36209277925

 

Day two of the 2017 ILG National Conference is in the books.  Conference attendees had a variety of sessions to choose from that covered topics across the spectrum.  The morning, however, kicked-off with a much anticipated keynote address from Acting EEOC Commissioner Victoria Lipnic.  Commission Lipnic spoke at last year’s conference, prior to being appointed Acting Chair, where she shared her thoughts about the role of EEOC, it’s goals and her personal thoughts on the EEO-1 pay data reporting tool.

And she did much the same this year, spending a good portion of her allotted time speaking on the need of employers to address ageism in the workplace.  But she did not shy away from recognizing the “most important thing” conference attendees wanted to talk about was the EEO-1 pay data reporting tool. Giving a nod to the historical significance of the Alamo, Commissioner Lipnic questioned whether she was Davy Crockett or The Mexican Army.

All joking aside, Commissioner Lipnic acknowledged that “time is of the essence” and contractors need to know soon what will be done with the report so they can start making investments and system changes necessary to comply.  She reported that in response to a petition by the U.S Chamber, the Office of Management and Budget is re-evaluating the burden estimate associated with the revised EEO-1 report.  In connection with its review, Commission Lipnic shared she has written to the newly appointed head of the Office of Information and Regulatory Affairs (OIRA), the office within the OMB tasked with review of the report, pointing out the impeding March 2018 reporting deadline, requesting OIRA have a response by the end of month – before the Labor Day holiday.  In Commissioner Lipnic’s words

“I have done everything I can think of to do to get people to focus on this.”

She went on to share that while she continues to believe the regulation is a “poster-child” for the kind of regulation the President campaigned against, she believes it is a “false choice” that if you are “not in favor of this [regulation] that you are not in favor of equal pay.”

Recognizing at the beginning of her remarks that the Agency is operating in a

“deeply divided country where so many people feel left out,”

and that this is a “critical time” for the country and the Agency, Commissioner Lipnic assured the audience at the conclusion of her address that the Agency’s core mission and core value’s remain.

As a side note, speculating on the topic of the proposed merger between EEOC and OFCCP, Commissioner Lipnic said she did not think it would happen.  No official decision, either way, has been reported.

Hello everyone and welcome to Texas!

While activities technically started yesterday with pre-conference sessions and the vendor reception last night, today is the official start of the 2017 ILG National Conference.  The conference kicked-off with a live Mariachi Band and festive dancers in brightly colored traditional outfits – a great welcome to San Antonio for all in attendance.

The morning’s keynote address was given by OFCCP Interim Director Tom Dowd.  Tom mentioned briefly the Agency’s work to transition under the Trump administration, stating the process was still on-going and stated only that he’s been asked to speak to both the Senate and the House regarding the proposed merger of OFCCP with EEOC, without commenting further.

Tom spent the majority of his address emphasizing his vision for the agency to work harder on compliance assistance and communicating with the contractor community. For the first time in ILG conference history, Tom asked all of the OFCCP Regional Directors to attend the conference so they could hear from the contractor community directly.

Transparency and direct communications with contractors were two big themes of Tom’s speech which fed into his larger goal for the agency – to improve its relationship with contractors.  Tom shared several of his visions for the agency, including a training program, where by contractors could “earn” a pass from compliance reviews for 2 -3 years if they successfully completed a yet-to-be-developed agency training program.  Another is the idea to bring back public acknowledgement for contractors that demonstrate commitment to EEO.  Throughout his speech, Tom reaffirmed that a “vast majority’ of contractors – approximately 98% – are in compliance.

In closing, Tom emphasized his desire to use the conference as a way for OFCCP and the contractor community to interact – asking specifically for contractor suggestions and comments on creative and innovative ways for the two groups to work together.  This week should offer lots of opportunities to do just that.

It’s that time of year again to start preparing for the annual required VETS-4212 filing. Nothing will change for this year (2017) reporting cycle.  Starting August 1, 2017, contractors will be able to file their 2017 reports through the reporting portal.  Note, anything filed before August 1, 2017 will be recorded as part of the 2016 filing cycle.

While most employers have focused their attention on the new EEO-1 pay data reporting requirements for 2018, and the burden that comes with it, there has been little attention paid to the burden created by two separate reporting periods and two separate submission dates for government contractors required to file both EEO-1 and VETS-4212 reports in 2018 and beyond.  On this lesser focused point, we have some good news to share.

Historically, for the VETS-4212 report, contractors have been required to pull a workforce snapshot between July 1 and August 31 of the year the report is to be filed.  So, if the rules remained the same, for 2018, contractors would pull a workforce report between July 1, 2018 and August 31, 2018 to be filed between August 1, 2018 and September 30, 2018.

However, there is a specific exception, which until now had been granted only on “previous written approval.”  In finalizing the changes to the EEO-1 report in 2017, the EEOC explicitly stated that for government contractors with VETS-4212 reporting obligations, the EEO-1 final notice accompanying the changed EEO-1 reporting serves as a blanket “written approval.”  Therefore, 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.

And don’t forget that for the VETS-4212 report, in addition to single-day snapshot reporting, contractors also must report on hires for the 12 months preceding their snapshot date.  Therefore if, as an example, you use December 31, 2017 as your snapshot date for your 2018 VETS reporting, you will also then need to pull veteran hiring data for 1/1/2017 through 12/31/2017.

So, to recap for 2018:

  • Traditional workforce snapshot needs to be pulled between July 1, 2017 and August 31, 2017
  • Exception available to instead pull snapshot as of December 31, 2017.  This snapshot can also be used for EEO-1 filling
  • Veteran hiring data needs to be pulled for 12 months preceding snapshot, regardless of date
  • EEO-1 filing by March 31, 2018
  • VETS-4212 filing between August 1, 2018 and September 30, 2018

While all of this remains confusing, the Agency’s clarification at least helps to lessen the burden for contractors who are looking to streamline their processes as much as they are able, and will likely spawn good questions at next week’s ILG National Conference.  Look forward to seeing you there!

The short answer to this question is not much, or so it seems.

Part of the reason for this is likely the fact we are still awaiting selection of a new OFCCP Director.  Deputy OFCCP Director Thomas M. Dowd currently continues in the position of Acting Director and we’ve not heard any news regarding DOL Secretary Acosta’s plans for appointment of a new Director.  Of course, that may be due to the Trump Administration’s budget proposal to merge OFCCP into the EEOC.

The White House’s recent Regulatory Agenda for DOL, which contained no regulatory agenda for OFCCP (literally nothing), also indicates OFCCP is in somewhat of a temporary holding pattern during the transition.  Additionally, if OFCCP is to be merged into EEOC, which remains to be seen, it was not evidenced in the regulatory agenda as EEOC did not mention OFCCP in it’s upcoming plans.

Both Tom Dowd and EEOC Commissioner Victoria Lipnic are scheduled to speak at next weeks Industry Liaison Group National Conference in San Antonio, Texas.  Hopefully they will be able to share insights as to the agencies’ focus and agenda.

With that said, it does appear OFCCP is taking this time to focus on assisting contractors.  A couple of recent OFCCP communications suggest OFCCP is reemphasizing technical assistance.  For example, on July 14, OFCCP sent an email – “Contractors Never Have to Pay a Third Party for OFCCP’s EEO Poster” – reminding contractors of the obligation to “prominently post the ‘Equal Employment Opportunity is the Law’ poster…” (and the OFCCP supplement) which are free at OFCCP’s Website.

A week later, OFCCP sent an email touting its Employment Referral Resource Directory (ERRD).  “This free contractor tool lists governmental and non-governmental (not-for-profit) organizations that have agreed to be recruitment and job referral resources for contractors seeking qualified job applicants… OFCCP is inviting more organizations to participate in the ERRD so that we can continue to grow the directory and possibly help even more contractors with their hiring challenges.”

Keep in mind, however, Labor Secretary Acosta has said an OFCCP/EEOC merger would not reduce OFCCP’s enforcement efforts, and there is no reason to believe otherwise.  OFCCP issued Courtesy Scheduling Announcement Letters (CSALs) in February 2017 and audits continue without much change, particularly in the Pacific Region.

Thus, contractors should take advantage of the ERRD and other OFCCP compliance outreach efforts, and not become complacent.  As always, audits are coming and the best way to defend an OFCCP audit is to be prepared.

 

As we speculated yesterday, the White House’s proposed budget for fiscal year 2018 proposes to merge the Office of Federal Contract Compliance Programs (OFCCP) with the Equal Employment Opportunity Commission (EEOC).

In the proposed budget, released this morning, the OFCCP would see its budget reduced from $105 million to approximately $88 million and have its operations merged with those of the EEOC, another federal civil rights enforcement agency.  Funding for the EEOC is proposed to essentially stay the same at roughly $364 million.

Just a few hours after the budget was released, the House Subcommittee on Workforce Protections held a previously scheduled hearing regarding the EEOC.  Taking advantage of the opportunity to discuss the newly released proposal to merger OFCCP with EEOC, representatives from both civil rights organizations as well as employer organizations spoke out against the merger.  Not often do you have the NAACP and the U.S. Chamber of Commerce align (quickly) in opposition to an administration’s proposal.  In fact one media outlet reported the occurrence as the “moment of strange bedfellows.”

And it appears the concern about this consolidation is not isolated to those in attendance at the hearing.  In anticipation of the proposal, Jackson Lewis has previously discussed the possible merger with employers, employer associations focused on AAP compliance, business and industry associations and other stakeholders and learned that the business community is squarely against the merger.  This, coupled with the fact that it appears civil rights/women’s rights organizations and other employee advocates are opposed as well, looks to present an uphill battle for this proposal to actually come to fruition.  But, in an unpredictable administration unpredictable things happen so stay tuned for updates.

 

In February 2017, we speculated whether the Trump Administration would eliminate the OFCCP as a possible cost-cutting measure.  The discussion has continued since that time, and has, in the past weeks gathered more interest.

The latest on the topic of the Office of Federal Contract Compliance Programs’ (OFCCP) fate stems from a recommendation by the Heritage Foundation that OFCCP be merged into the Equal Employment Opportunity Commission (EEOC). According to the Heritage Foundation report the EEOC and OFCCP are redundant:

Taxpayers should not fund two separate and duplicative anti-discrimination agencies, one for federal contractors and one for all employers.

There are differing opinions, of course, but the Foundation’s premise above overlooks many fundamental distinctions between the two agencies, the primary one being OFCCP unique authorization to oversee and enforce compliance with affirmative action obligations stemming from the federal procurement process.

As federal contractors know well, anti-discrimination, as handled by EEOC, is not the same as the affirmative action obligations faced by contractors. Nor do the come from the same source of authority.  While Executive Order 11246 can be amended by executive order, the statutory authority to enforce the Vietnam Veterans Readjustment Assistance Act and Section 503 of the Rehabilitation Act is provided to the Department of Labor.  Thus, enforcement authority over VEVRAA and Section 503 cannot be shifted to EEOC by executive order; rather, congressional action would be necessary.

And, if the obligations of the two agencies do not align, the question looms whether shifting OFCCP under the wing of EEOC would actually achieve any economic benefit – which seems to be an intended benefit of the consolidation. The Trump Administration has issued a number of cost-cutting executive orders and taken various actions aimed at minimizing burdens on the business community.  In fact, the White House  is soliciting input until June 2017 on this very topic as part of President Trump’s Executive Order on a Comprehensive Plan for Reorganizing the Executive Branch.

Also timely is the anticipated release of the Administration’s fiscal year 2018 budget, due out this week. The budget’s suggested funding level for OFCCP may signal whether the Trump Administration has an OFCCP/EEOC merger on its mind.  Specifically, OFCCP might be eliminated from the budget or have its budget significantly reduced as a signal that its days are numbered.

As soon as the budget is released by the Office of Management and Budget (OMB) we’ll provide an update so stay tuned.