This week OFCCP sent its final regulations implementing Executive Order 13665 (“Non-Retaliation for Disclosure of Compensation Information”), or commonly referred to as the Pay Transparency Executive Order to the Office of Management and Budget for approval.

OFCCP published the proposed rules on September 17, 2014 and the public comment period closed December 16, 2014.

Final approval is expected from OMB sometime later this summer.  The final rules are not yet available to the public but we will provide updated information as soon as we have it.

The Obama Administration has made it clear that closing the persistent gender “wage gap” is one of its top EEO priorities. As such, OFCCP has ramped up its enforcement of equal pay laws, including rewriting its compensation investigation guidelines with Agency Directive 307, revamping its Division of Statistical Analyses, and reinventing the pay data component of audit submissions with the new compliance evaluation scheduling letter.   Similarly, EEOC has identifies enforcement of the Equal Pay Act as an Agency-wide priority in its 2013-2016 Strategic Enforcement Plan.  As a result, now more than ever, it’s important to proactively analyze your pay data for potential discrimination before the federal government comes knocking on your door.

And if that weren’t enough, President Obama recently announced new tools that will soon make finding pay discrimination even easier for OFCCP and EEOC.   The “Pay Transparency” Executive Order gives employees the ability to freely discuss pay without fear of retaliation from employers. The planned “Equal Pay Report” will require federal contractors to submit summaries of employee pay to the government by EEO-1 category, race, and gender.

And while it is becoming critically important for employers to do EEO pay self-analyses on a proactive basis, and certainly before submitting any compensation data to OFCCP in an audit, it’s equally important to do so under attorney-client privilege.

As our colleague Scott Pechaitis recently wrote for our Wage and Hour blog, Is Your Expert Analysis Protected by the Attorney-Client Privilege?, “when obtaining an analysis from an expert consultant, attorneys must take care to establish and maintain the attorney-client privilege. Otherwise, the analysis may end up becoming your adversary’s best piece of evidence.”

At the end of the day, make sure you are doing your proactive pay analyses and doing them under privilege.

In a week full of front-page news, the United States Supreme Court has agreed to again review the appropriateness of the University of Texas at Austin’s race-based admissions process in the case of Fisher v. University of Texas at Austin.

The Supreme Court first reviewed the school’s consideration of race as a component of its admission process almost a year ago and remanded the case back to the Fifth Circuit Court of Appeals for reconsideration.  Upon re-review the Fifth Circuit again held the University’s practice of using race a factor in its admissions decisions was constitutional. Fisher filed an appeal arguing the Fifth Circuit did not follow the Supreme Court’s direction when conducting the subsequent review.

While the ultimate outcome of this case will certainly impact affirmative action programs of institutions of higher education, its effects on other types of non-admissions affirmative action programs, such as though enforced by OFCCP, remains unknown.

 

Responding to the recent United States Supreme Court decision in Young v. UPS, the U.S. Equal Employment Opportunity Commission has issued revised Enforcement Guidance on Pregnancy Discrimination and Related Issues. In its press release announcing the updated guidance, the Agency explained the update to its previously released guidance were limited in scope and tailored to address the recent Supreme Court decision which dealt with the issue of a woman’s ability to establish pregnancy discrimination based on an employer’s accommodation practices. Early this year the OFCCP relied on EEOC’s initial pregnancy discrimination guidance for  a portion of the Agency’s proposed Sex Discrimination Rules.  With the Supreme Court decision in Young coming days before the close of the public comment period for the proposed rules, OFCCP extended the comment period to allow the public time to comment on the implications of the court ruling on the Agency’s proposal.  How OFCCP will address and/or incorporate the court ruling and EEOC’s revised guidance in its final rules remains to be seen.  The public comment period for the proposed Sex Discrimination Rules closed in April 2015 and the final rules are anticipated late this year.

As part of our continued efforts to analyze and disseminate information about the recently published proposed guidance implementing Executive Order 13673, JL will be hosting a complimentary webinar Tuesday, June 30, 2015 from 2:00 – 3:00 Eastern, entitled “Understanding the Fair Pay and Safe Workplaces (“Blacklisting”) Executive Order – Ten Steps Contractors Should Take Now.”

Join Mickey Silberman, Leslie Stout-Tabackman and Garen Dodge as they discuss the details of the U.S. Department of Labor’s proposed guidance and Federal Acquisition Regulatory Council’s proposed regulations and identify actions contractors should consider taking now in preparation for compliance with the requirements.

For information about the webinar and to register, click here.  Hope you can join us.

The United States Supreme Court has declined to accept Associated Builders & Contractor’s request to review the legality of OFCCP’s recently enacted regulations for individuals with disability.  This rejection signals the end of ABC’s year and a half long challenge of the Agency’s Section 503 regulations.

While this may be the final chapter for ABC’s challenge, the Agency and employers are still navigating through the initial “transition” year of both the Section 503 and VEVRAA regulations.  Though the regulations went into effect March 24, 2014, contractors have until they next regularly update their AAP to implement compliance with the data collection and some of the other obligations of the regulations.  This “transition” period is where contractors are working towards full implementation and have started collecting, but may not have a full year’s worth of data to report in their AAP.  OFCCP recently offered sample VEVRAA and Section 503 Transition Year AAPs to give contractors an idea of what a compliant transition year AAP might look like.

How the Agency will enforce these regulations going forward is yet to be seen but OFCCP but we will be sure to keep you updated on any enforcement trends or insights as we learn of them.

 

 

 

With the official start of summer roughly a week away, it’s not too early to start planning for the upcoming ILG National Conference.  This year, the 33rd Annual Conference will be held in New York City from July 28-31, 2015 at the Marriott Marquis Times Square.

With the theme “Onward and Upward: Building the Future of Compliance”, this year’s conference will focus on “lessons from our past, strategies for our future” and promises an information packed agenda.  The scheduled sessions and panel discussions will be led by leading experts in the field, including Jackson Lewis attorneys Mickey Silberman, Joy Chin, Eric Felsberg, Jennifer Seda, and Michelle Duncan.

With all that is going on in the world of affirmative action and the regulatory agenda items currently on deck for OFCCP, this year’s conference will be full of practical insights, front-line strategies and invaluable information about contractor compliance obligations and OFCCP enforcement trends.  The conference also offers the ultimate opportunity to network with hundreds of employer representatives who have the same goal of staying up to speed on the latest affirmative action and EEO developments affecting federal contractors.

For more information about the conference and to register, visit the 2015 ILG National Conference website.  Hope to see you in the Big Apple.

After continuing uncertainty about how employers should track Recently Separated Veterans, we have learned OFCCP and VETS agreed this week that employers’ post-offer self-identification forms need only solicit whether the new employee is or is not a Protected Veteran.

The uncertainty around collecting more specific information about Recently Separated Veterans arose when OFCCP issued an FAQ earlier this year stating that, in light of the new reporting requirements associated with the VETS-4212 form, employers were not required to solicit the specific type of Protected Veteran post-offer. Rather, employers could simply ask individuals to fall into any of the Protected Veteran categories.

Following this, many employers expressed concerns about how to properly track Recently Separated Veterans, defined as “discharged or released from active duty within the last three years” for VETS-4212 Reporting. Because the Recently Separated Veteran category is tied to a defined period of time following discharge, many employers asked for date of separation and if the employee belonged to protected veteran categories other than Recently Separated to determine when, and if, the employee would need to be removed from the list of protected veterans at some point in the future.

This week OFCCP and VETS confirmed – employers do not need to (1) ask these additional questions or (2) track when and how to move employees from Recently Separated Veterans status in their systems. Like the veteran pre-offer (applicant) form, the post-offer self-identification form need only provide “yes/no/decline to answer” options as to whether the new employee is a Protected Veteran.

From an administrative standpoint, this allows employers to streamline their veteran self-identification forms, utilizing the same form both pre- and post-offer (just like with race/ethnicity, gender and disability) and eliminates the need to track whether an employee no longer qualifies as protected due to discharge date. This will be much easier to administer from a systems perspective since employers will no longer need to manually track and make changes in HRIS systems to protected veteran status on an individual employee level.

OFCCP and VETS have stated that they will not issue any formal announcements or additional FAQs on this issue as they feel the OFCCP’s previously-provided FAQ is consistent with, and sufficiently addresses this decision.

While we all hope that our OFCCP compliance reviews will end with a Notice of Closure with no violations, many employers are faced with a Notice of Violation citing technical or discrimination-based violations. In these instances, OFCCP will demand the contractor enter into a Conciliation Agreement to remedy the violations. But what happens when negotiations breakdown and conciliation fails?

  • What should you expect?
  • Who should be involved?
  • What steps should you take?

Join Jackson Lewis attorneys Michelle Duncan, former Senior Trial Attorney for OFCCP, and Stacey Bastone, former Assistant District Attorney in Manhattan, on Wednesday, June 24th 2:00 – 3:30 EST / 1:00 – 2:30 CST / 11:00 – 12:30 PST for a discussion of what happens when conciliation fails and a case moves toward enforcement proceedings.

Click here to register for this complimentary webinar.

As we previously reported, the U.S. Department of Labor has published proposed guidance (“DOL Guidance”) and the Federal Acquisition Regulatory (“FAR”) Council has published proposed regulations (“FAR Proposed Rule”) implementing President Obama’s “Fair Pay and Safe Workplaces” Executive Order (E.O. 13673), often called the “Blacklisting” or “Bad Actors” executive order.  The Order requires government contractors and subcontractors to report regularly on workplace law violations found by administrative agencies, the courts, and arbitrators.

We’ve summarized the proposals and will continue to analyze each document and provide additional insights in the coming weeks.  Stay tuned.