Shortly after the U.S. Department of Labor and Federal Acquisition Regulatory Council extended the public comment period for pending proposals implementing Executive Order 13673, a group of Senate Republicans requested the U.S. Department of Labor withdraw its proposed guidance.

This is the second request made by Congressional leadership for withdrawal of the published guidance.  In late July, a group of Senate Committee and Sub-committee chairs made a similar request to the U.S. DOL and the FAR Council for withdrawal of its proposed rule.

Citing concerns with the U.S. DOL’s “incomplete” guidance, Senators Ron Johnson, Lamar Alexander, James Lankford and Johnny Isakson asked the Agency to “immediately withdraw its proposal.”  Specifically, the Senators noted concerns with significant unresolved issues “including which state laws will be covered and whether prime contractors will be required to facilitate subcontractor reporting.”  These omission, the Senators contend, make it impossible for federal contractors to provide useful feedback and prevent the FAR Council from adequately assessing the costs of its proposed rule.

Stay tuned for what happens next . . .

Compensation – it’s on everyone’s mind and it’s what everyone was talking about at the 33rd Annual ILG National Conference in New York City.  Conference attendees, government officials and practitioners alike were all talking about pay and the tools available to employers and agencies to identify and investigate compensation issues.

Our Jackson Lewis colleague Scott M. Pechaitis has put together his thoughts on OFCCP’s use of a new “tool” in its pay enforcement toolbox: the Compensation Manager Interview.

This is what Scott has to say:

As the Obama Administration continues to make headlines promoting “equal pay,” the directive from the White House to EEOC and OFCCP is, “we know pay discrimination exists – go find it.” OFCCP, which historically has not brought back a lot of compensation discrimination findings and settlements, has sharpened the tools in its compensation investigation toolbox, including the following:

Over the last two years, OFCCP has systematically overhauled its approach to investigating pay discrimination. And now, the Agency has developed yet another investigatory tool – compensation manager interviews.

Now, before sending pay data to the Agency’s statisticians, OFCCP is conducting compensation manager interviews to (1) learn how pay is administered (i.e., what larger groups are appropriate for analysis), (2) determine what additional components of compensation comprise total compensation, (3) ascertain what policies, documents, and analyses are available to be requested, and (4) identify any and all variables affecting pay for future data requests.

This makes the compensation manager interview critically important to the success of an OFCCP compensation investigation. The Agency will use the information learned during the interview to analyze your pay data. And yet, many employers are not treating the situation seriously or are otherwise failing to properly prepare for these important interviews. So how should you prepare for a compensation manager interview?   Below are four important tips to help you prepare for and successfully conduct an OFCCP compensation manager interview.

  1.  Review Your Pay Policies

OFCCP will review the policies to determine what data to ask for in subsequent requests, how to group employees, and for other documents and policies referenced therein. Know what they say before you turn them over.

  1. Communicating the Theme: Analyze Your Pay Data to Develop “Talking Points”

The employer’s goal in the compensation manager interview should be to convey themes explaining differences in pay, which is why it pays to do pay analyses in advance of the interview.

Federal contractors are required to analyze their compensation systems for EEO issues at least annually. 41 CFR § 60-2.17(b)(3). You should use your pay analyses to help shape the compensation manager’s talking points. The analyses should tell you what factors affect pay, what groupings look best for your organization, and where there are any issues.

The answers to these questions should become the Compensation Manager’s “talking points” in how pay is administered. Then, when OFCCP goes to analyze pay, it becomes a self-fulfilling prophecy – what we tell OFCCP about how pay is administered is confirmed by their analysis.

  1. Identify and Prepare the Interviewee

The interviewee should be someone who has first-hand knowledge of pay practices at the ground level. Consider conducting a mock interview to get the interviewee used to the format, tone, and types of questions that will be asked. Prepare the interviewee like a formal deposition. Substantively, be prepared to discuss all types of pay, including what groups of employees are eligible for each type of pay. For each grouping and each type of pay, be prepared to discuss how and when pay decisions are made. You do not need to be able to (and should not have to) speak to the pay for each employee included in the audit.

  1. OFCCP Requests for Pay Analyses

And one final word of caution – OFCCP will likely request copies of your pay analysis.  The Agency knows we must conduct annual pay analyses as part of our affirmative action plans and will often ask for these analyses during the compensation manager interview or in subsequent data requests. So it is more important than ever to make sure these analyses are protected by the attorney-client privilege.

And, the Agency will make us “prove” the privilege, which means much more than just having a lawyer involved in the process.  There are certain precautions an attorney must take to establish the privilege and protocols the employer’s team must follow to maintain it. 

While it is important to proactively analyze your pay data, it is equally importantly to take great care in establishing and protecting the privilege when doing so.  Otherwise you risk handing OFCCP the best evidence against you.

As first reported in the New York Times today, the White House, in connection with the U.S. Department of Labor, is working on an executive order requiring federal contractors to provide paid sick leave to their workers.  While a copy of the order was not made available, the article detailed some of the elements of the “pre-decisional and deliberative” draft, including the requirement that employers pay for up to a minimum of 56 hours a year for sick leave.  As currently drafted, the required leave would not be solely for an employee’s personal illness but would cover caring for others, including domestic partners.

Despite its draft form, the Executive Order noted regulations would be issued by the Secretary of Labor by Sept. 30, 2016.  With the Executive Order not yet finalized, it remains to be seen if this date will hold true.

This Executive Order would make the sixth employment-related executive action impacting federal contractors in the past 18 months.  The other actions include:

The U.S. Department of Labor announced today another extension of the public comment period for the proposed guidance and regulations implementing The Fair Pay & Safe Workplaces Executive Order 13673.  The deadline for submitting comments is now August 26, 2015.  This is the second extension for this public comment period.

The notice does not specifically address whether the additional extension was in response to the recent Congress Committee chairs letter to the Agency raising concerns with the proposals but does state the extension is to allow “interested parties” more time to comment.

It’s that time again to file your required VETS reports.  Under the Vietnam Era Veterans’ Readjustment Act of 1972 (VEVRAA), federal contractors and subcontractors with contracts of $100,000 or more are required to file reports annually with Veterans’ Employment and Training Service (VETS).

This year contractors will be filing for the first time the new VETS 4212 form.  The VETS-4212 form reduces the reporting obligations for employers requiring only aggregate numbers of protected veterans by EEO Category to be reported.  The previously used VETS-100 and VETS-100A forms have been discontinued and are no longer being accepted by VETS.

VETS announced the VETS-4212 Reporting Application officially opened on August 3, 2015.  Employers have until September 30, 2015 to file their reports unless an extension is obtained.

Frequently Asked Questions and other information about the form is available on the VETS website or by contacting VETS at 1-866-237-0275 or VETS4212-customersupport@dol.gov.

Today, OFCCP released a new outreach and education poster.    The poster, which the Agency explained was based on feedback received during “stakeholder” listening sessions, is not a mandatory posting but provided by the agency to “increase public awareness of OFCCP and its mission.”  The poster highlights obligations of companies doing business with the federal government, stating these companies

must treat workers fairly & without discrimination

and

must pay all workers fairly

The poster also provides OFCCP’s contact information and encourages individuals who believe they may have experienced discrimination to contact OFCCP.

The 33rd Annual Industry Liaison Group National Conference has officially come to a close.  For four days, conference attendees attended a multitude of sessions providing insight and guidance on the latest EEO and Affirmative Action trends.

Highlights of the conference began with Director Patricia Shiu’s opening remarks as well as the EEOC and OFCCP joint presentation discussion pay discrimination.  In the days that followed, practitioners and vendors continued to educate conference-goers on several “hot button” topics, which included:

  • Applicant tracking
  • Recruitment
  • Compensation
  • Disability and Veteran Outreach
  • Steering
  • LGBT

The conference concluded with a panel of prominent industry experts, including Jackson Lewis’ own Mickey Silberman, who provided their views on key takeaways from the conference.  This always entertaining session touched on the topics highlighted above and was followed by a David Letterman style rundown of the Top 10 Things Overheard at the conference.

From the insights provided by the panel, and comments overheard during the conference, it is apparent companies doing business with the federal government, and particularly those responsible for compliance, have a lot on their plates.  As always, this year’s ILG National conference was a great way for these individuals to network and benchmark with their EEO colleagues about the ever-expanding compliance obligations, and even have a little fun along the way.

Today is the official start to the 2015 Industry Liaison Group National Conference where conference attendees will focus on “lessons from our past, strategies for our future” in the world of affirmative action and equal employment opportunity.

Marking the 50th anniversary of the signing of Executive Order 11246 OFCCP Director Patricia Shiu acknowledged in her keynote address to open the conference,

“this year is no ordinary year.”

Director Shiu’s remarks highlighted the Executive Order’s history and reminded conference attendees

“what history taught us we are wise to remember.”

Director Shiu also remarked on the accomplishment this year of the “full inclusion of LGBT into our workplace communities” and reiterated the Agency’s commitment to “keep working” on issues of inclusion and equal opportunity.

While today marked the first official day of the conference, many attendees attended pre-conference sessions yesterday. One of the highlights was the joint EEOC and OFCCP presentation on compensation. Jeff Burstein, Supervisory Trial Attorney for the EEOC Newark Office and Bob LaJeunesse, Branch Chief, Expert Services for OFCCP, co-presented on pay equity issues impacting federal contractors.

The EEOC’s section of the presentation focused on recent case developments and litigation implications of pay equity while the OFCCP’s portion provided insights and commentary on the Agency’s current approach to compensation discrimination.

Dr. LaJeunesse, who has been in his position with OFCCP for a short six months, detailed the Agency’s three-step investigative process to:

  1. Identify measureable differences in compensation,
  2. Identify if the difference is between “comparable employees”; and
  3. Assess whether there are legitimate explanations for the differences.

He discussed with nice detail the Agency’s view of “similarly situated” employees, utilizing “wage compensating differentials” that include tasks performed, qualifications or skills, effort, and working conditions.

The joint sessions concluded with both speakers fielding questions on a variety of topics, including the applicability of potential pay impacting factors like performance and prior experience.

The sessions scheduled for the remainder of the conference will continue to build upon the information shared and lessons learned from the pre-conference sessions.

Stay tuned for our updates this week as the conference continues.

Following announcement of a two-week extension of the public comment period for proposals implementing Executive Order 13673, on July 15, 2015, a group of Congressional Chairs submitted a letter to the U.S. Department of Labor and the Federal Acquisition Regulatory Council requesting the agencies withdraw their pending proposed guidance and rule.

The letter, signed by eight congressional committee and sub-committee chairs, requested withdrawal of the agencies proposals for implementing the Fair Pay and Safe Workplaces Executive Order citing concerns the proposals put into place

“new burdensome and unnecessary requirements that will delay an already cumbersome federal procurement process and will impose additional costs on employers, federal agencies, and American taxpayers.”

In the event the DOL and FAR Council decline to withdraw the guidance and rule, the Committee Chairs requested a 90-day extension of the public comment period to

“ensure that interested parties have adequate time to review, assess and provide meaningful input.”

The Chairs requested the Agencies respond to the letter by July 29, 2015.   We will provide an update on the Agencies’ response as soon as it is available.  Stay tuned.

The Department of Labor has extended the public comment period for the U.S. Department of Labor’s proposed guidance (“DOL Guidance”) implementing President Obama’s “Fair Pay and Safe Workplaces” Executive Order (E.O. 13673).  The Department of Defense has done the same with respect to the Federal Acquisition Regulatory (“FAR”) Council  proposed regulations (“FAR Proposed Rule”) implementing the Executive Order.  The public comment period now closes August 11, 2015.

The extension of the deadline allows employers more time to evaluate the effect of the new obligations and potential unintended consequences.  Mickey Silberman was quoted this morning in the Wall Street Journal’s Risk and Compliance Journal speaking about the reality of companies taking the time

to assess the value of the government contracts they have and weighing that against the greatly increased cost of doing business with the federal government.

In preparation for the new regulations, Mickey suggested companies:

need to budget for higher costs, should identify a person or team to handle coordinating the collecting of information from its various departments and subcontractors, and should make sure its lawyers understand the ramifications of setting cases versus the larger-picture risk of adding a violation to the total.

With today’s extension, there’s still plenty of time to comment on the impact of these proposed rules and guidance – let your voice be heard.