It’s here.  OFCCP’s New Scheduling Letter and Itemized Listing has been released and is effective for any audits initiated today, October 1, 2014, and going forward.  OFCCP has announced, however, that it will not schedule audits from October 1 through October 15 to allow contractors time to “become acquainted” with the new scheduling letter and itemized listing.  We’ve learned from an official at OFCCP that the Agency is in the process of developing FAQs surrounding the new letter.  The FAQs should be released some time during this 15-day “audit moratorium.”

As we noted yesterday, the revised scheduling letter and itemized listing changes a number of the audit submission requirements.  Here’s a summary of the changes:

  • Compliance with the new veteran and disability regulations:
    • Results of the effectiveness of outreach evaluation;
    • Documentation of the audit and reporting system;
    • Data collection and analysis, including an additional six months if more than six months into the plan year;
    • Disability utilization analysis, including progress for the current year if more than six months into the plan year; and,
    • Veteran hiring benchmark, including progress for the current year if more than six months into the plan year.
  • Support Data:
    • Policy statements, employee notices and handbooks implementing the CBA;
    • All personnel activity data shall be submitted by sub-minority group (OFCCP lists the traditional 5 groups);
    • All unknowns shall be included in the submission; and,
    • Include a definition of promotion.
  • Compensation:
    • Employee-level (not summary) compensation data;
    • As of the WFA date;
    • Defined “employees” to include (FT, PT, contract, per diem, day labor, temporary);
    • For each, provide JT, EEO-1, JG and DOH;
    • Additional columns for bonuses, incentive, commissions, merit increases, locality pay, and OT; and,
    • Compensation policies.
  • Additional New Items:
    • Accommodation policies, requests and how resolution;
    • Assessment of personnel process; and,
    • Assessment of physical and mental qualifications.

We have learned that Patrick Patterson will soon be announced as the new Deputy Director of OFCCP in the Agency’s national office, replacing Les Jin.  Since 2010, Deputy Director Patterson has served as Senior Counsel to EEOC Chair Jacqueline Berrien, who recently announced her departure from the Commission.  Consistent with other recent OFCCP appointments, Deputy Director Patterson has a lengthy history of plaintiff-side civil rights advocacy, including holding positions as Regional Counsel for the NAACP Legal Defense and Educational Fund.  In addition, he taught at the University of Wisconsin Law School and UCLA Law School.

Deputy Director Patterson’s official “start date” with OFCCP is not known at this time, but with everything going on with the Agency these days, (from new regulations to increased audit activity) we except he will jump in very soon.

Although no copy has yet been made available, OFCCP has announced that the Office of Management and Budget (OMB) has approved a revised scheduling letter and the itemized listing of documents and data required to be submitted at the outset of an OFCCP desk audit.

According to the Notice, the new scheduling letter will contain a number of substantive changes:

  • Individualized Compensation Data:  Most significantly, contractors may no longer submit annualized, aggregate compensation data. Rather, contractors must provide individualized employee compensation data as of the date of the workforce analysis in their AAP, including job title, job group and EEO-1 category.
  • Definition of Compensation:  Compensation data to be submitted now includes hours worked, incentive pay, merit increases, locality pay, and overtime.
  • Job Group or Job Title, But Not Both:  Contractors may continue to submit personnel activity data by Job Group or Job Title.  The scheduling letter amendments proposed in 2011 would have required submission of data by both Job Group and Job Title.
  • Minority Sub-Groups:  Rather than identifying applicants and employees by “minority” and “non-minority,” contractors must provide specific race or ethnicity for each using the five categories of the Uniform Guidelines on Employee Selection Procedures.
  • VEVRAA & Section 503 Changes:  The revised scheduling letter incorporates the changes to the VEVRAA and Section 503 regulations, including new data collection, recordkeeping and reporting requirements.
  • Electronic format:  Data must be provided electronically if it is maintained in an electronic format which is “useable and readable.”

As soon as we have the opportunity to review the new scheduling letter and itemized listing we’ll provide a copy and an updated analysis so stay tuned for more.

As employers are working to file their 2014 Vets-100A Reports, the Veterans’ Employment and Training Service (VETS) is already looking ahead to the future and finalizing the form and filing requirements for 2015.

Finalizing rules proposed earlier this year, in 2015, the VETS-100A Report will be re-named the VETS-4212 Report (named after the U.S. Code section for the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) 38 U.S. Code Section 4212). Additionally, employers will no longer have the ability to file a VETS-100 Report.  This is consistent with OFCCP’s deletion of Section 250 (addressing contracts pre-dating December 1, 2003) from the VEVRAA Regulations.

Additionally, and more importantly, going forward federal contractors will no longer need to report on the different categories of protected veterans.  Instead, employers will be required to provide only aggregate numbers of protected veterans by EEO Category.

VETS says this decision provides at least two advantages.  Under current regulations it was not possible to get an accurate picture of total veterans covered by VEVRAA because a veteran might fall into more than one category and the VETS-100A Report didn’t require a total veteran workforce or hiring number.  Moreover, this change fosters confidentiality as it will be harder to discern the identity of a “disabled veteran” in a small EEO Category.

These new rules will apply to your VETS-4212 Report next year.  For 2014, your VETS-100A remains the same and must be filed by September 30, 2014 unless an extension is obtained.

Via  blog post on the day the proposed pay transparency regulations were officially published in the federal register, OFCCP Director Pat Shiu encouraged “all interested parties” to provide feedback on the Agency’s proposed rules.  The public comment period is open for 90 days and will close December 16, 2014. Let your voice be heard.

 

 

OFCCP recently mailed out close to 2,500 Courtesy Scheduling Announcement Letters to employers providing advance notice of upcoming audits. Up against the fast-approaching end of the Agency’s fiscal year, OFCCP began initiating actual audits immediately after the CSALs were mailed.

While we can certainly expect OFCCP to continue to focus their enforcement efforts on traditional areas of concern (e.g., compensation and new hires adverse impact), employers must craft their defenses to respond to OFCCP’s latest enforcement plays, including in-depth interviews of compensation professionals, robust statistical analyses of pay practices, novel investigations into steering issues, and close scrutiny of compliance with the new veterans and disability regulations. OFCCP’s offense has changed and so must your defense.

Join us for a complimentary webinar on September 24 as we bring you up to date on OFCCP’s new enforcement techniques and offer practical strategies for defending your next compliance review.

As directed by President Obama’s recent Executive Order (EO 13665) on Non-Retaliation for Disclosure of Compensation Information, OFCCP has released its proposed rule addressing Pay Transparency.  The proposed rule sets out how OFCCP proposes to implement the EO’s requirement prohibiting federal contractors and subcontractors from retaliating or otherwise discriminating against employees and applicants for talking about pay.

We are in the process of digesting the 93-page document and will be back soon with a detailed analysis so stay tuned . . .

In connection with its revisions to the regulations covering individuals with disabilities, OFCCP requires employers to use a Voluntary Self-Identification of Disability form to collect information from applicants and employees.  Based on initial feedback from the contractor community, OFCCP provided an electronic, writeable, version of the form.

OFCCP recently requested approval to modify the form to allow for a drop-down menu of the three possible responses, rather than checkboxes or radio buttons.  OFCCP states in its request justification that the requested change comes in response to contractor suggestions.  The revised form would ask the question, “Do you have a disability” followed by a drop-down menu with the three response options:  Yes, I have a disability (or previously had a disability); No, I don’t have a disability; and I don’t wish to answer.  The functionality of the proposed form would also apparently allow an individual to leave the drop-down box empty, as with a hardcopy form.

However, there remains an open question which OFCCP has yet to officially answer:  Do we need to retain a copy of the completed disability form, or simply maintain the responsive data?  At the recent NILG conference, OFCCP unofficially suggested the disability form is a “personnel or employment record” which must be preserved.  However, the provision regarding the disability self-identification form provides that such information shall be maintained “in a data analysis file (rather than in the medical files of individual employees.)  See § 60-741.23(d).”  Subsection 23(d) provides that the information “shall be collected and maintained on separate forms and in separate medical files…”  Thus, the requirement that the information be maintained in a data analysis file appears to be a specific exception to the requirement that a “form” be maintained.   Hopefully OFCCP will clarify this requirement in future FAQs.

In addition to the addition of the drop-down box, OFCCP has also requested approval of the form in 7 languages in addition to English and Spanish.

So come join us at The OFCCP Institute Fall Symposium in Chicago on October 1st & 2nd.  

We will do a deep dive into the many new obligations emerging from President Obama’s recent series of executive orders. We also will examine and explain the OFCCP’s latest enforcement trends.

As you know (if you’ve been reading our blog) the President recently signed several executive orders imposing significant new requirements on employers that do business with the federal government, either as direct “prime” contractors or as subcontractors. These new executive orders will require a quick review and often wide-ranging changes to your employment and human resources policies and practices. In addition, OFCCP is embarking on a wave of compliance audits this Fall during which the Agency will for the first time enforce the new veterans and disability regulations and continue its rapidly changing approach to investigating your pay systems for potential discrimination.

Its time to get educated about the changing (and, let’s face it, expanding) obligations of government contractors.  So come join me and a distinguished faculty of speakers in Chicago for The OFCCP Institute’s Fall Compliance Symposium on October 1-2.   In addition to our faculty of private-sector speakers, we’re fortunate to have Salvador Guerrero Jr. – OFCCP Director of Regional Operations, Midwest Region – as our featured speaker to provide the OFCCP’s perspective.

For the conference agenda and to register, click here.  Hope to see you in Chicago.

As Secretary of Labor Thomas Perez recently announced, OFCCP has updated its guidance to “make clear that discrimination on the basis of transgender status is discrimination based on sex” under Title VII and existing case law.  By e-mail Director Patricia Shiu announced the release of Directive 2014-02, the purpose of which is to “clarify that existing agency guidance on discrimination on the basis of sex under Executive Order 11246, as amended, includes discrimination on the basis of gender identity and transgender status.”  Interestingly the directive does not address protections on the basis of “sexual orientation,” (specifically covered by President Obama’s recent Executive Order) and instead focuses on gender identity and transgender status, which was the subject of a recently decided EEOC decision.  The Directive is effective immediately.

OFCCP’s Directive appears to be additional guidance bridging the gap until the release and implementation of the anticipated regulations addressing Executive Order 13672.  The proposed regulations are due to be published by mid-October.