This week OFCCP hosted Webinars on federal contractor obligations with respect to sexual orientation and gender identity under Executive Order 13672.

During the training OFCCP reiterated the following requirements:

  • Contractors are to use the updated EO Clause including sexual orientation and gender identity if the entire EO Clause is incorporated into covered purchase orders and subcontracts.
  • Contractors must include sexual orientation and gender identity in your EEO tagline for job ads only if the tag line lists out all of the protected statuses.
  • As an alternative, contractors may continue to use abbreviated taglines which do not need to include reference to sexual orientation or gender identity; and
  • Contractors must post the updated “EEO is the Law” poster when available. Until it is available, contractors are to use a supplement to the poster when provided by EEOC and OFCCP. The supplement is expected to be available at the EEOC and OFCCP Websites sometime shortly after April 8. As soon as we have access to this supplement we will let you know where to find it.

During the webinar OFCCP clarified while it would be “best practice” to include sexual orientation and gender identity in other anti-discrimination documents such as handbooks, revision of these documents is not required.

OFCCP reiterated that contractors are not required to collect any data regarding sexual orientation or gender identity; engage in any particular outreach or training; or set placement goals based on sexual orientation or gender identity. However, OFCCP informed the audience that if contractors elect to invite applicants and/or employees to voluntarily disclose sexual orientation and gender identity, the collected data could be requested during an OFCCP audit or investigation of a LGBT complaint.

More to Come

OFCCP announced it is working on a set of LGBT FAQs which will soon be available on OFCCP’s Website. While FAQs are non-regulatory, they often provide helpful guidance on the Agency’s expectations. We will be sure to provide an update when these become available.

OFCCP published its long-awaited Sex Discrimination Rules amidst a lot of other activity vying for our attention.  Maybe you’ve not had the chance to review them (yet). But you’ve still got time.  The public comment period is open until Tuesday March 31, 2015 – let your voice be heard.

Comments can be filed via fax or online: Fax: (202) 693–1304 (for comments of six pages or less); or the Federal eRulemaking Portal – www.regulations.gov. Refer to RIN number 1250–AA05.

In summary, the proposed rules would update the 1970’s-era Sex Discrimination Guidelines and impose mandatory obligations on employers.

Below are a few highlights:

  • Purpose: Unlike the former Guidelines, the Rules would create a binding set of EO 11246 regulations.

 

  • Discriminatory Pay: The proposed rules broadly prohibit any practice which denies “equal pay” or “equal access” to opportunities for higher pay on the basis of sex. Title VII prohibits discrimination in pay among similarly-situated employees on the basis of sex or race. The proposed regulations seemingly adopt OFCCP’s current approach to pay discrimination as set out in the Agency’s Directive 307.

 

  • Discrimination Based on Pregnancy, Childbirth and Related Medical Conditions: This proposed Rule states employers “must treat people of childbearing capacity and those affected by pregnancy, childbirth, or related medical conditions the same for all employment-related purposes…as other persons not so affected, but similar in their ability or inability to work.” Perhaps most notable, for example, employers would not be permitted to deny a pregnant employee an accommodation when that accommodation is provided to other employees whose abilities or inabilities to perform their job duties are similarly affected. This prohibition is currently being litigated before the U.S. Supreme Court.

 

  • Harassment and Hostile Work Environment: This Rule clarifies prohibited harassment includes that based on gender identity, pregnancy, childbirth and related medical conditions, and non-sexual harassment which is “because of sex,” such as harassment based on transgendered status. The Rule also suggests but does not mandate anti-harassment best practices.

The NPRM also includes a “Section-by-Section Analysis” portion of OFCCP’s Federal Register. There, OFCCP provides insights on what it believes the Rules mean and how OFCCP may interpret them.

OFCCP announced today a date change for its upcoming sexual orientation and gender identity compliance training.

The webinar previously scheduled for Wednesday, March 18, 2015 will now be held Tuesday, March 24, 2015 at 2:00 Eastern.  The same Webinar will be presented again on Wednesday, March 25, 2015.

If you have already registered for the March 18th webinar there is no need to re-register or take any further actions.

Last spring and summer saw a flurry of Executive Orders and OFCCP actions. With everything that’s going on its hard to keep tabs on the status of all the new regulations and regulatory actions.  In an effort to help keep tabs on it all, here’s an up-to-date recap of the Agency’s agenda:

  •   Minimum Wage for Federal Contractors: The $10.10/hour wage applies to covered contracts arising out of solicitations issued after January 1, 2015.

 

  • LGBT Discrimination: The final rules will be effective for federal contracts/subcontracts entered into after April 8, 2015.  Although you may want to update other documents for consistency, the final regulations only require two primary actions:
    • Inclusion of “sexual orientation” and “gender identity” in your EEO Tagline if the protected statuses are listed. We may still use abbreviated EEO Taglines; and
    • Posting of an updated “EEO is the Law” poster when available.

 

  • Sex Discrimination Proposed Rules: In January, OFCCP proposed binding regulations to replace the decades-old Sex Discrimination Guidelines. The comment period closes March 31, 2015 so you still have time to submit your comments.

 

  • Equal Pay Report: OFCCP’s Regulatory Agenda projects August 2015 for publication of the final rules.  More about the Report can be found here.

 

  • Pay Transparency: According to OFCCP’s Regulatory Agenda, final regulations are targeted for September 2015.  In addition to prohibiting discrimination/retaliation against applicants and employees who discuss pay, the proposed rules require:
    • Inclusion in employee handbooks of an anti-discrimination policy; and
    • Physical or electronic posting of the policy for applicants and employees.

 

  • Construction Contractor Affirmative Action Requirements: OFCCP has for years been preparing updated regulations governing affirmative action for federal construction contractors. OFCCP’s latest projection is to release the proposed rules in September 2015.

 

  • Fair Pay and Safe Workplaces: As we recently reported, a Congressional hearing addressed the complexity of and potential burdens on federal contractors imposed by this Order. No date has been published for proposed regulations but a White House Fact Sheet states this Executive Order will be “implemented on new contracts in stages, on a prioritized basis, during 2016.”

 

We will continue to provide updates with developments on the above so stay tuned.

In connection with the April 8, 2015 effective date of OFCCP’s implementation of Executive Order 13672, OFCCP announced today training sessions on compliance with the new sexual orientation and gender identity regulations.

The Agency will be presenting a webinar on Wednesday March 18, 2015 on the Agency’s implementation of the new sexual orientation and gender identity non-discrimination requirements.  The webinar will be presented again on Wednesday, March 25, 2015.  The Agency will provide a Q&A session during both webinars.

 

 

In October 2014, OFCCP issued a new scheduling letter that significantly impacts what employers must submit during an audit.  As we suspected, OFCCP’s enforcement under the new letter is a “game changer” for federal contractors.

Join us on March 24, 2015 from 2:00 PM – 3:30 PM Eastern as we share our experiences in audits initiated under the new scheduling letter, including OFCCP requests, how to respond, and how to prepare for an upcoming compliance review.

Topics to be discussed include:

  • What forms of compensation should be submitted?
  • What types of issues arise when specific minority group data is submitted?
  • How should employers demonstrate compliance with the new veteran and disability regulations? . . . and many more.

We hope you can join us for this informative and practical presentation.

Today, the congressional Subcommittees on Workforce Protections and Health, Employment, Labor, and Pensions heard testimony in connection with Executive Order 13673 – Fair Pay and Safe Workplaces, signed in July 2014 by President Obama.

This Executive Order requires contracting agencies to take into account violations of 14 Federal statues (and equivalent state laws) when considering contract awards. Under the Executive Order, contractors and subcontractors will be required to report three years of violations of these laws during the bidding process and then provide updates every six months.

In addition, the Executive Order prohibits contractors with contracts in excess of $1million from utilizing pre-dispute mandatory arbitration agreements with employees for disputes arising out of Title VII and from torts related to sexual assault or harassment.

As anticipated there are concerns about the implications of these requirements for the contractor community.

The hearing provided committee members an opportunity to examine the effect of the president’s executive order as well as concerns raised by employers and stakeholders including the Orders implications on a contractor’s due process rights and inter-play with the Federal Arbitration Act.

We will continue to track developments in connection with this Executive Order and provide updates as we learn of them.

In response to requests following publication of the final regulations implementing President Obama’s recent Executive Order addressing non-discrimination and affirmative action on the basis of sexual orientation and gender identity, OFCCP has published a directory of resources to assist federal contractors

 “around issues relating to creating an inclusive workplace of lesbian, gay, bisexual, and transgender employees.”

The directory includes information from both public and private sectors and OFCCP indicates it will be updated periodically.

These resources can be useful as you train and educate managers and hiring personnel on the implications of these new protections.  The final regulations are set to go into effect on April 8, 2015.

On February 3, 2015 the Department of Labor published a second request for public comments on how it can increase regulatory effectiveness and minimize burdens.  DOL’s request is made pursuant to President Obama’s 2011 Executive Order 13563, requiring federal agencies to review their regulations for ways to make them more effective and less burdensome.  A copy of DOL’s preliminary plan, including OFCCP rules, is here.

OFCCP has already updated VEVRAA and Section 503 regulations, and proposed new rules regarding sex discrimination, pay transparency and pay data collection.  Nonetheless, this request provides another opportunity for federal contractors to directly voice insights and suggestions to OFCCP.

While not asking about specific regulations, OFCCP seeks responses to six particular questions, such as:  “What reporting requirements and information collections can be streamlined or reduced in frequency while achieving the same level of protections…?”

DOL has set up an Internet Portal specifically designed to capture your suggestions.  The Portal is open for input and suggestions from January 28, 2015 through February 25, 2015 and all comments will be available to the public through the Portal.  Let your voice be heard.

As anticipated, OFCCP published on Friday, January 30, 2015 the Agency’s proposed Sex Discrimination Rules in the Federal Register.  The public comment period is open until March 31, 2015.

We are in the process of digesting the new rules so check back soon for an in-depth analysis, including a section-by-section review of the new obligations.