This week, OFCCP created a webpage to provide contractors more information about the “new” compliance check reviews that will be completed as part of the current round of audits. OFCCP has had the capability to conduct compliance checks for many years but has not opted to schedule them in the recent past. With this round of reviews, OFCCP re-introduced the Compliance Check, to be used in 500 of the 3,000 audits to be scheduled in the coming months. The agency has indicated they intend to schedule up to 1,000 Checks per audit list in the coming years, as a means of ensuring compliance across more contractor establishments.
The EEOC announced that it intends to collect pay data and hours worked (Component 2) for 2017 and 2018. This news settles the question that has been looming for weeks about what year(s) of pay data would be collected.
Pay data refers to the amount paid on an employee’s W2 form in Box 1. Hours worked are the actual hours worked for employees reported in the data. Remember the EEO-1 is filed using a snapshot of the employee population for one pay period between October 1 and December 31 of the EEO-1 year-to-be-filed. Using employees from the snapshot, the pay and hours worked should be filed for the entire year, through December 31 of 2017 and 2018.
On Thursday April 25, 2019, a federal judge ordered that the EEOC begin collecting employee pay data by race, ethnicity, and sex. Also referred to as Component 2 of the EEO-1 report, employers will need to submit their 2018 pay and hours worked data by September 30, 2019. The judge also ordered the agency to collect a second year of pay data, giving it a choice between collecting employers’ 2017 or 2019 pay data. By April 29, the EEOC will post a statement on its website informing employers of the 2018 data submission requirement, and by May 3 it will inform the judge and employers if the 2017 or 2019 pay data will be collected.
The U.S. Supreme Court has agreed to take on two issues that directly impact Federal Contractors this week. The first case is based on the Civil Rights Act of 1964 and debates the question of if that statue extends anti-discrimination provisions based on sexual orientation or transgender status. Federal appeals courts have come to opposing conclusions on this provision, from New York, Georgia, and Illinois.
Register for the final webinar of Berkshire's Section 503 series taking place on April 24, 2019 at 1 p.m. In the last of the webinars, Lynn Clements, a former OFCCP and EEOC official who now serves as the Director of Regulatory Affairs at Berkshire Associates, closes out the series by discussing common employer practices that might come under scrutiny this year. Register today, and listen to Lynn review what the government thinks of employer policies related to use of leaves of absence as an accommodation, attendance practices, and pregnancy-related restrictions.
This week, OFCCP published a request to extend the Functional Affirmative Action Program (FAAP) process with no changes to the existing requirements. The FAAP is an alternative to typical establishment-based AAPs; contractors provide detailed information to the agency and can receive approval to create functional, rather than geographic, plans. The current Office of Management and Budget (OMB) approval for the FAAP documents expires on April 30, and OFCCP has applied to extend the authorization for another three years.
Continuing its focus of ensuring the agency is covering all types of government contractors’ compliance with their affirmative action obligations, OFCCP has proposed to conduct compliance checks for construction contractors with direct federal contracts and federally assisted contracts. Comments on the proposal are due June 7, 2019.
The Office of Federal Contract Compliance Programs (“OFCCP”) held two town hall sessions in New York City this week, focused on the financial and legal industries. The town halls followed the format of earlier sessions, with attendees being asked to provide feedback about several topics, including the agency’s current enforcement practices and ideas for how the OFCCP could help contractors promote diversity in hiring, fairness in promotions and disability inclusion.