In FY 2016, Office of Federal Contract Compliance Programs (OFCCP) quietly settled twelve compliance reviews without a press release. This is unusual. Historically, OFCCP publishes a press release with each conciliation agreement. If you missed reading about these resolutions, you missed out on some valuable lessons.
The Trump Administration signals it may revisit the government’s position regarding whether transgender students be allowed to use the bathroom of the sex with which they identify. In May 2016 the Obama administration informed schools that “schools receiving federal money may not discriminate based on a student’s sex, including a student’s transgender status.” Pursuant to joint guidance issued by the Department of Education and Department of Justice, schools were advised they should allow students to use bathrooms consistent with the gender they identify with, rather than their biological sex.
A core component of a federal contractor’s affirmative action plan (AAP) is the creation of a job group structure. Office of Federal Contract Compliance Program’s (OFCCP) regulations state the “job group analysis is a method of combining job titles within the contractor’s establishment” (41 CFR 60-2.12). However, what does this mean? What is the best way to do this? Why does this matter?
In the last two years, federal contractors started tracking and reporting the workforce percentage that self-identified as being an Individual with a Disability (IWD). Time and time again, we hear from employers that applicants and current employees are unlikely or uncomfortable providing their disability status as part of the employment process. Employers are consistently reporting low numbers of employees who self-identified as an IWD.
The Office of Management Budget (OMB) has renewed the voluntary self-identification form federal contractors must use to solicit disability status information from applicants and employees. The new form was approved without change and is valid until January 31, 2020. Federal contractors are required to either download the renewed form(s) or update their electronic version(s) of the form to reflect the new OMB approval expiration date.
Office of Federal Contract Compliance Programs (OFCCP) has struck hard against California’s high tech industry again, this time quietly settling hiring discrimination claims against California technology company—Splunk Inc., located in San Francisco, California. The $2.7 million settlement resolves claims by the agency that Splunk Inc. selected Asians and African Americans applicants less often for certain Technical and Administrative Professional positions. This case follows OFCCP’s recent high profile lawsuits against Palantir Technologies, in which OFCCP alleged the company’s hiring practices disproportionately excluded Asians, and Oracle America Inc., in which OFCCP alleged that the company disproportionately favored Asians, specifically Asians of Indian descent, when hiring.
On January 30, 2017, the Trump Administration released its Executive Order (EO), “Reducing Regulation and Controlling Regulatory Costs,” an EO intended to cut regulations by removing two existing regulations for each new regulation enacted. The EO intends to “manage the costs associated with the governmental imposition of private expenditures required to comply with federal regulations” through gradual attrition of regulation:
Office of Federal Contract Compliance Programs (OFCCP) recently entered into a conciliation agreement with Crossmatch Technologies in Palm Gardens, Florida to resolve allegations of pay discrimination. As has been the case with other recent conciliation agreements, OFCCP did not issue a press release regarding this resolution. The conciliation agreement follows OFCCP’s recent filing of two administrative lawsuits alleging pay discrimination against Oracle America Inc. and JPMorgan Chase & Co. and is a good reminder pay discrimination continues to be an enforcement priority for OFCCP.
On January 31, 2017, the White House shared that President Trump will not override the Executive Order (EO) signed during the Obama administration providing workplace protections for LGBT employees working on federal contracts. EO 13672, signed by President Obama in 2014, extended existing EO 11246 protections for federal contract employees to also prohibit employment discrimination based on sexual orientation and gender identity. When the order was signed by President Obama, it applied to 28 million workers, or about a fifth of America’s workforce. OFCCP subsequently issued regulations to implement EO 13672, which can be found at https://www.dol.gov/ofccp/LGBT.html. In announcing that the new administration would not rescind these protections, the White House stated President Trump “is determined to protect the rights of all Americans, including the LGBTQ community.”
Now that the transfer of power has taken place in Washington, D.C., the only certainty the Federal government contractor community can count on is change. For OFCCP and DOL watchers, the extent of that change and the areas where it will be concentrated is up for debate, so we have summarized a few fearless predictions about what may come in the new year.