A source of insights, news and strategy on workplace law issues for government contractors and subcontractors.
As some of you may have noticed, the current OMB approval for the required disability self-identification form expired January 31, 2017. On the eve of its expiration, OMB approved the form for another three years – until January 31, 2020.
An updated version of the form (in multiple languages) can be found here. According to OFCCP’s website, employers can either download the new form, or update their existing electronic version of the form the reflect the new expiration date.
The New York Times reported this week President Trump will preserve intact President Obama’s LGBT order (Executive Order 13672) protecting applicants and employees from discrimination on the basis of sexual orientation and gender identity. As published by the Times, a White House statement provides:
President Trump continues to be respectful and supportive of L.G.B.T.Q. rights, just as he was throughout the election… The president is proud to have been the first ever G.O.P. nominee to mention the L.G.B.T.Q. community in his nomination acceptance speech, pledging then to protect the community from violence and oppression.
The LGBT Order amended Executive Order 11246, signed by President Johnson in 1965, but beyond its centerpiece anti-discrimination provisions does not require affirmative action from federal contractors. For example, the LGBT Order and regulations impose no outreach, data collection or analysis obligations. Federal contactors must only include “sexual orientation” and “gender identity” in extended EEO taglines, but may continue to use an abbreviated tagline without such references. Contractors must also post an OFCCP-supplement to the “EEO is the Law” poster, until the poster is updated.
By the time the Order was signed in July 2014, many contractors had already implemented EEO policies protecting gender identity and sexual orientation and many contractors have since enshrined these protections in their EEO Policy Statements and handbooks, going beyond the requirements of the LGBT Order.
President Trump’s decision on this Order is not, however, likely to be the last word on the topic. During the campaign, the candidate stated he would support the controversial First Amendment Defense Act (FADA). If passed and signed by the President, FADA would essentially prevent the federal government from taking adverse action against people, businesses or institutions which discriminate based on sexual orientation according to a belief that “marriage is or should be recognized as the union of one man and one woman, or that sexual relations are properly reserved to such a marriage.”
We will provide an update if and when FADA is reintroduced in Congress.
Continuing the fervor of activity that has filled his first days in office, President Trump has appointed Victoria Lipnic as Acting Chair of the Equal Employment Opportunity Commission (EEOC).
Commission Lipnic has served on the Commission since being appointed in 2010 by President Obama. Her current term is set to run through June 2020.
The press release announcing her appointment reports that prior to her role as a Commissioner, Lipnic served as Assistant Secretary of Labor for Employment Standards where she oversaw divisions that “revised regulations on overtime, the Family and Medical Leave Act, and issued the first-ever regulations for OFCCP to evaluate compensation discrimination.”
Recently, Commission Lipnic expressed concern with the Commission’s pay data collection changes to the EEO-1 report. Employer interest in the future of the EEO-1 pay data reporting tool under President Trump is high, and Commissioner Lipic’s appointment as the Acting Chair may give insight into what the future holds for the report; however, nothing definitive has been reported so must continue to wait and see what official action is taken. Stay tuned . . .
Federal agencies soon will be required to engage in affirmative outreach for individuals with disabilities. The final rule issued by EEOC on December 30, 2016, will require federal agencies to take steps to increase the number of its employees that are individuals with disabilities beginning in January 2018.
This is similar to the affirmative action obligations in the revised Section 503 regulations that went into effect for federal contractors in March 2014.
As a reminder, under the disability regulations contractors are required to aspire to meet an annual 7% utilization goal (per job group) for individuals with disabilities. There is a separate veteran hiring benchmark obligation (currently set at 6.9%). While meeting the goals and benchmark are “aspirational” contractors are required to develop action oriented programs aimed at addressing underutilization and missed benchmarks. In connection with this, contractors are required, on an annual basis, to “assess the effectiveness” of each of their outreach efforts.
In addition to the relevantly recent veteran and individuals with disabilities affirmative action requirements, contractors also have good faith outreach effort obligations for minorities and females in areas of underutilization. Where underutilized, employers must likewise create an action oriented program designed to address the underutilizations – which primarily includes developing meaningful relationships with local recruitment organizations.
While many things may change under a Trump administration, it is likely OFCCP’s emphasis on, and enforcement of, good faith outreach efforts will not. As a result, contractors need to make sure they are taking appropriate actions to build compliant and effective outreach programs.
Happy New Year!
As we ring in 2017 and prepare for affirmative action and OFCCP compliance in a Trump administration, many contractors are wondering whether 2017 will bring an OFCCP audit their way.
Some may remember in years past around this time OFCCP would send out Courtesy Scheduling Announcement Letters (CSALs) providing advance notification to contractors of upcoming audits. The list of contractors with establishments to be audited is generated every fiscal year out of the Agency’s national office in Washington D.C. based on an administratively neutral selection criteria. Previously, after the list was generated, OFCCP would voluntarily issue CSALs to notify contractors that one or more of their facilities had been selected to be audited at some point during the agency’s fiscal year (October 1 – September 31). Its actually been quite some time, however, since OFCCP provided employers with this advance notice with the last round going out in 2014.
In the past, not all CSALs resulted in an actual audit but, it was a good indication that a facility would be audited at some point. In fact, since the 2014 CSALs, OFCCP has continued to conduct audits of those identified in the 2014 CSALs, long after the conclusion of the 2014-15 fiscal year. The list however, was not dispositive as recent years have seen OFCCP conduct audits for which it issued no CSAL.
We do not know whether OFCCP will again choose to issue CSALs in the future, possibly once a new Director is in place, but in response to our inquiry on the topic to the National Office, it appears, for the time being, the Agency will maintain the status quo and not issue CSALs.
As a result, as contractors prepare to turn over their calendar year affirmative action plans, as well as those who have recently updated or will be soon updating their AAP, its imperative to ensure you are prepared for an OFCCP audit, including the compensation elements of Item 19 and the veterans and individuals with disability requirements set forth in the Scheduling Letter.
Who will lead the OFCCP under a new Trump administration? The short is answer is we still don’t know.
As we previously reported, OFCCP Director Pat Shiu left the Agency in the days following the election. Deputy Director, Tom Dowd, a seasoned OFCCP official, has now taken the reins as the “Interim Acting Director” and will remain in place until a new leader is announced by the incoming administration. Shortly before Director Shiu announced her departure, she obtained approval for the creation of a new leadership position within OFCCP – Director of Enforcement. This position, which was given to Marika Litras, a senior OFCCP official, was created to “help the agency remain steadfast in carrying out its enforcement mission.” Dr. Litras was previously the Director of the Division of Program Operations (DPO) for OFCCP.
In the past, the new Secretary of Labor has provided input on the selection of Department directors, including OFCCP. Present-elect Trump recently announced Andy Puzder, a pro-employer businessman, as his nominee for Secretary of Labor. Puzder’s impact on OFCCP remains to be seen, however, his selection is certainly being touted as a “good thing” for employers in terms of reversing the recent trend of increased regulation on contractors. Even now that Present-elect Trump has identified Puzder to head up the Department of Labor we will still have to wait to see who gets the nod to head up OFCCP. As always, stay tuned for future developments.
President-elect Trump has announced many Cabinet appointments and last week announced Andy Puzder, head of fast food brands Hardee’s and Carl’s Jr., for Secretary of Labor. Several names were circulated in recent weeks as possible successors to outgoing Secretary Thomas Perez, including Vicki Lipnic, a current EEOC Commissioner. However, in recent days it became clearer that Puzder was the top choice.
Puzder, a lawyer, is well published on topics of employment law and represents a pro-employer perspective, with previously expressed views in opposition to significantly increasing minimum wage and the recently enjoined changes to the FLSA overtime regulations. He has also been critical of the recent rulings on joint employment relationships. Viewed as a mainstream Republican – he served as Mitt Romney’s economic advisor during the 2011-2012 campaign season – Puzder will bring years of corporate management experience to the roll of running the Department of Labor
Predicting what any new presidential administration will or won’t do based on campaign statements is risky. Nonetheless, we may glean some insights. For instance, of the equal employment opportunity priorities mentioned during the campaign, the President-elect and his daughter, Ivanka, spent time talking about wage equality and childcare. For example, on the news program, 60 Minutes, Ms. Trump stated, “I’ve said throughout the campaign that I am very passionate about certain issues. And that I want to fight for them… Wage equality, childcare. These are things that are very important for me… Really promoting more opportunities for women.”
Does this suggest the new EEO-1 report will survive, despite its burdens? There are a few likely options: (1) Throw the baby out with the bath water – get rid of the whole thing – which EEOC and OFCCP could accomplish with relative ease; (2) Leave the report as is. This option appears unlikely because of the burden imposed on employers: gathering the data from multiple employer systems – HRIS (race, gender and position information), payroll (W-2 earnings) and timekeeping (hours worked); or, (3) Modify the report to decrease the burden by, for example, replacing W-2 data with annualized base pay. Annualized pay is accessible from the HRIS with race/gender and job information, and, because pay is annualized, it alleviates the need for work hours reporting.
So what do employers do now? As with the recently enjoined overtime regulations, there are downsides to each option. Some are sitting tight, waiting to see what happens. Others are moving forward in preparation by testing their reporting systems and making adjustments and planning a trial run in first quarter 2017 to mimic the 2018 reporting requirements. As is the case in many situations, a compromise approach may be the best choice.
The fate of the report must, of course, await new leadership from EEOC and OFCCP conferring and determining the best path forward. We will provide updates as they develop … stay tuned.
In a much anticipated, last minute ruling, a U.S. District Court Judge has ordered a nationwide preliminary injunction blocking the labor law violation disclosure requirements and restriction on use of arbitration agreements portions of the Fair Pay and Safe Workplaces Final Rule and Guidance (“Final Rule”), which were set to take effect today.
The pay transparency requirement, effective January 1, 2017 for covered bids, remains intact.
As this is only a preliminary injunction next steps will likely involve an appeal by the government of the order as well as briefing and a full hearing on the request for a permanent injunction.
We will bring you further updates as they develop.
EEO-1 Annual Pay Data Reporting Has Arrived: What Should Employers Do Now?
As we’ve been reporting, the new EEO-1 reporting rules require employers with 100 or more employees to annually report W-2 earnings, work hours, race/ethnicity and gender for all U.S. employees, separately for each location.
First reporting will be on 2017 data. The first annual filing deadline is March 31, 2018. EEOC and OFCCP will use the newly-reported pay data to launch targeted systemic pay investigations and intend to publish the reported pay data. So, now is the time to prepare for this new reporting obligation and potential ramifications.
Join Jackson Lewis pay equity experts, Jennifer L. Seda and Mickey Silberman, on November 3, from 2:00 – 3:00 Eastern for this timely and important webinar during which they will explain the new requirements, increased administrative burdens, and strategic implications of the EEO-1 pay data report.
Registration for this complimentary webinar can be found here.
