As scheduled, OFCCP has announced issuance of its final rules implementing the President’s recent Executive Order prohibiting discrimination for on the basis of sexual orientation and gender identity.

As we previously mentioned, OFCCP is releasing the final rule without a public comment period.

The final rules are not yet available for public review.   However, OFCCP has released FAQs which provide insight into the requirements of the final rules, such as the following:

  • The Final Rule will become effective 120 days after publication in the federal register and will apply to federal contracts entered into or modified after that date.
  • The Final Rule will not require contractors to collect any information about applicants’ or employees’ sexual orientation or gender identity.
  • The Final Rule will not require contractors to conduct any data analysis with respect to the sexual orientation or gender identity of their applicants or employees.

We will make sure to provide an update as soon as the Final Rule is available for review.

According to the DOL’s semi-annual regulatory agenda, OFCCP intends to issue as early as December, final rules implementing Executive Order 13672, providing non-discrimination protection to individuals on the basis of sexual orientation and gender identity.

Our understanding is that OFCCP does not intend to publish the regulations in the federal register for public notice and comment prior to final implementation.  As a result, the assumption is the regulations will become effective upon issuance.

Given this, employers should soon review their policies for compliance and consider training in connection with these new non-discrimination obligations.

We will make sure to alert you once the final regulations have been released.

One of the biggest changes to OFCCP’s recently revised scheduling letter is the requirement that employers must now submit employee-level pay data at the outset of an OFCCP audit.  As the Agency puts 2,500 establishments on notice of upcoming audits, and in response to contractor questions and requests for guidance on the new scheduling letter, OFCCP has published thirteen FAQs addressing the requirements of pay data submissions under Item 19 of the new letter.

Specifically, OFCCP provided guidance on the employee population employers need to include in Item 19 submissions, stating

Contractors must provide employee–level compensation data for all of the employees included in the AAP workforce analysis/organizational display.   The term “employee,” as used in the AAP regulations in 41 C.F.R. part 60–2, is broad enough to include part–time, temporary and full–time employees. . . .Item 19 seeks compensation data for “contract, per diem, or day laborers” as categories of temporary employees on the contractor’s payroll.

OFCCP also clarified the time frame of compensation data which employers should report, stating

For all employees, compensation must include base salary and/or wage rate and hours worked in a typical workweek.  Other compensation or adjustments to salary such as bonuses, incentives, commissions, merit increases, locality pay or overtime should be identified separately from base salary/wage for each employee.

In a later FAQ OFCCP specifically addressed the issue of “other compensation”, stating

for each employee in the workforce analysis/organizational display contractors should provide the actual amount paid in other compensation or adjustments to salary during the 12–month period preceding the date of the analysis/display.

Additionally, OFCCP confirmed that

OFCCP will accept AAPs and supporting records that reflect the five race and ethnicity  categories outlined in 41 CFR Part 60–2 or the seven used in the EEO–1  Report.

As OFCCP undertakes audits under the revised scheduling letter it may put out additional guidance, so stay tuned for further updates.

In the coming days OFCCP will mail approximately 2,500 Courtesy Scheduling Announcement Letters (CSALs) across the country to employer locations slated for audits.

The CSALs do not initiate audits but instead put employers on notice that their establishments have been identified for upcoming OFCCP compliance reviews.

Importantly, audits initiated under this new round of letters are subject to the Agency’s recently revised scheduling letter.  The new letter requires employers to submit detailed pay data (base comp, bonus, commissions, overtime earnings, etc.) separately for all employees in the workforce.  Because of this new requirement, and other significant changes in the new letter, we recommend employers start preparing for audits as soon as possible after receiving CSALs.

Contractors can confirm whether one or more of their establishments were mailed CSAL(s) by faxing a written request on company letterhead to OFCCP’s Division of Program Operations at (202) 693-1305.

Here are Frequently Asked Questions about CSALs from OFCCP’s website http://www.dol.gov/ofccp/regs/compliance/faqs/csalfaqs.htm.

 

OFCCP Director Pat Shiu has appointed Sam Maiden the new director of OFCCP’s Southeast Regional Office.  He will take the reins on December 14 and will oversee a region including four district offices and seven area offices in Kentucky, Tennessee, Mississippi, Alabama, Georgia, Florida, North and South Carolina.

Mr. Maiden has a long tenure with OFCCP, most recently as the Northeast Regional Director where Director Shiu credits him with helping lead some of the agency’s “most important investigations of systemic pay discrimination.”

OFCCP has announced a 60-day extension for public comment on the Agency’s proposed Equal Pay Report (EPR). The new deadline for employers and others to provide feedback on the proposed EPR is now January 5, 2015.

In response to the Presidential Memorandum directing the development of a pay data collection tool, the proposed EPR will require for the first time that federal contractors submit pay data to the government on an annual basis. This new obligation, in connection with the recently revised scheduling letter and itemized listing, which requires the submission of detailed individualized pay data at the outset of an audit, means employers will be turning over a lot of pay data to OFCCP.

Take advantage of this extended public comment period to let your voice be heard about OFCCP’s proposed method of collecting your pay data.

 

Effective Today, No Need to Solicit and Track Specific Veteran Category Information

We know you’ve been busy revising your self-id forms for applicants and employees to comply with OFCCP’s recent regulatory changes for veterans and individuals with disabilities.  And you’ve been revising your HRIS and ATS systems to track and maintain the information.

Well, still more changes have arrived, so you may not want to finalize the revisions to your forms and systems just yet.

As we blogged about recently, the VETS-100/VETS-100A has gone away.  Replacing it is the new VETS-4212 Form, which will not require reporting specific categories of “protected veterans,” instead requiring only the reporting on total protected veterans.  Section 60-300.42(b) states that we must solicit only the veteran category data “the contractor is required to report pursuant to 41 CFR part 61–300 [VETS reports].”  Thus, because the new VETS-4212 report does not require reporting of specific veteran category data, we are not required to invite applicants or employees to identify specific veteran category status.

Now, you’re not technically required to revise your veteran self-ID forms for employees and applicants.  You can choose to continue to ask for the specific veteran category information, even though no longer required by law. And, we know it would be less burdensome administratively so you can avoid making yet another round of changes to your self-ID forms and systems.

But, in our experience, soliciting and collecting sensitive employee data – when not required by law – can do more harm than good.  For example, if you choose to continue to ask for, let’s say, “disabled veteran” category status from applicants and employees – even though you don’t have to – applicants rejected for hire or employees denied promotions may allege that you unlawfully used their disabled veteran status to reject them for the hiring and promotion opportunities.  Why else, they might argue, are you asking about their disabled veteran status, if the law doesn’t require it, other than to use it to discriminate against them.

Bottom line:  carefully consider the pros and cons of (once again) revising your forms and systems to minimize exposure that accompanies soliciting sensitive applicant and employee protected category data.

In honor of National Disability Employment Awareness Month, representatives from the U.S. Department of Labor and the Social Security Administration are holding a Twitter Chat to discuss efforts to improve employment opportunities for millions of qualified workers with disabilities.  Details are as follows:

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Save the Date! October 24, 2014 Twitter Chat:

You’re invited to join Ticket to Work for a live Twitter Chat with the Department of Labor (DOL) on Friday, October 24 at 12:00 PM EDT.

This month, we will be discussing Section 503, the new regulations that promise more job opportunities than ever for people with disabilities. Section 503 requires federal contractors to take deliberate steps to recruit, hire, and retain people with disabilities. The new rules also allow you to voluntarily self-identify as a person with a disability. Federal contractors offer a wide variety of jobs, ranging from food service to economic consulting, and everything in between.

Learn what these rules mean for you and how you can find out about these opportunities. We’ll also share information on how Ticket to Work can help you along the way.

Join us on Friday, October 24 at 12:00 PM EDT using #DEchat.

New to Twitter Chats? No problem. Twitter chats are easy ways for people to have a public conversation about a particular topic. To join, go to Twitter.com and search for the hashtag “#DEchat.” Follow the hashtag, or chime in by tweeting a question or comment with “#DEchat” added to your tweets.

In another instance of OFCCP responding to feedback from the contractor community, OFCCP stated today in a FAQ that if you use an electronic version of the required disability self-id form to solicit disability status, you need only retain the data, not the form or copy of the form.

The FAQ sets out the self-id options and retention obligations for employers:

Paper Forms:  If we use paper forms, we must either retain the forms or a reproducible electronic copy of the forms (e.g. PDF), as well as “any log, spreadsheet, or database that it may have developed to record the data from the self-identification forms.”

Electronic Forms:  Contractors using electronic forms may choose one of three options:

  • Keep an electronic version of the form (e.g. PDF) as well as the log or spreadsheet referenced above; or
  • Keep hardcopy printouts of the electronic form, and the log or spreadsheet; or
  • Keep only “a log detailed log, spreadsheet or database of the data collected from each electronically completed form, without copies of each individually completed form…”  In this case, contractors must be able to demonstrate for OFCCP how the information was collected, meaning provide a copy of the form used and show OFCCP the electronic process implemented for inviting applicants/employees to self-identify.

In another FAQ, OFCCP also clarified that where contractors have openings for a remote position, that opening should be listed with the state workforce agency “where the work unit, division, department or supervisor to which the employee will report or be assigned is located.” This may also give us more than one option.

Logging in at 338 pages, the Department of Labor (DOL) released final rules implementing Executive Order 13658 “Establishing a Minimum Wage for Contractors.”  The Rules are due to be published in the Federal Register on October 7, and will be effective on December 6, 2014.  However, as specified in the Executive Order, the minimum wage applies only to “new” covered contracts resulting from solicitations on or after January 1, 2015, or contracts awarded outside the solicitation process after January 1, 2015.

By-and-large, the final Rules adhere closely to the regulations proposed in June 2014.  DOL found most of the 6,500 comments to be helpful but unpersuasive and so rejected them.  However, DOL was persuaded by a number of comments.  Notable revisions include:

  •  The definition of “contractor” has been “simplified” and narrowed to mean only individuals and legal entities awarded a Federal Government Contract or subcontract under a Federal Government Contract.  The proposed regulation would have included prospective and former contractors who did not hold a current contract.
  • The term “new contract” has also been clarified and refined.  The Rules apply only to new contracts after January 1, 2015 but amendments or modifications to pre-existing contracts may make them new contracts.
  • In one of the more controversial aspects of the proposed rules, DOL stated that workers who perform support services “in connection with a covered contract” who are covered by the Fair Labor Standards Act (FLSA) must also be paid the minimum wage even though they are not “service workers” covered by the Service Contract Act (SCA) or onsite “laborers and mechanics” covered by the Davis-Bacon Act (DBA).  As a compromise, DOL has added new subsection 10.4(f) which provides that workers performing support work “in connection with a covered contract” less than 20% of their hours in a workweek are not entitled to the minimum wage.
  • Section 10.4(d) clarifies that if a contract is exempt from the SCA, it is also exempt from the Executive Order, unless the contract is covered by one of the three other coverage provisions:  a covered concession contract or a contract in connection with Federal land and related to service offerings.
  • While not explicitly stating that the minimum wage contract clause may be incorporated by reference into covered subcontracts, DOL acknowledges that the full contract clause will be deemed to have been incorporated by reference in a covered contract if the contract provides that “Executive Order 13658 – Establishing a Minimum Wage for Contractors, and its implementing regulations, including the applicable contract clause, are incorporated by reference into this contract as if fully set forth in this contract,’ with a citation to a webpage that contains the contract clause in full, to the provision of the Code of Federal Regulations containing the contract clause set forth at Appendix A of this part, or to the provision of the FAR containing the contract clause promulgated by the FARC to implement this rule.”
  • If a contracting agency fails to put the minimum wage clause into a contract, and thus the contractor has no notice of the wage requirement, the contractor may be entitled to a contract adjustment to cover the additional costs.  This is clarified in Section 10.44(e).
  • DOL has also added two new recordkeeping requirements to Section 10.26(a):  the requirement to maintain records reflecting each worker’s occupation or classification, and the requirement to maintain records reflecting total wages paid.
  • Finally, DOL has imposed yet another notice requirement.  This may be accomplished in two ways:  prominently posting of the applicable wage determination which will include notice of minimum wage rights; and displaying a poster (to be provided by DOL) for support workers which may be posted electronically.

There remains a lot to be digested with these new Rules.  Fact sheets, FAQs and other resources can be found at the WHD Website.  Stay tuned to our Blog as we provide further insights.