Category Archives: Compensation

OFCCP Issues Final Rule Promoting Pay Transparency

On September 10, 2015, the Office of Federal Contract Compliance Programs (“OFCCP”) issued the Final Rule (RIN 1250-AA06) on pay transparency, which goes into effect on January 11, 2016.  The Final Rule implements Executive Order 13665, signed by President Obama signed on April 8, 2014, and stems from the Lilly Ledbetter Fair Pay Act.  OFCCP’s press release explains the rationale for the Final Rule is that pay secrecy policies foster the gender pay gap; if individuals do not realize that they are underpaid, then they cannot address the disparity.  OFCCP states that the pay gap for females remains at 23 cents for every dollar earned by males.  OFCCP also cites a pay gap for minorities.

The Final Rule prohibits federal contractors and subcontractors with government contracts in excess of $10,000 from terminating or otherwise discriminating against employees for discussing, disclosing, or inquiring about their own pay or co-workers’ pay. The Final Rule also protects pay discussions by job applicants.  Employees and job applicants who believe that they have been discriminated against for discussing, disclosing, or inquiring about pay may file discrimination complaints with OFCCP.

The Final Rule contains an exception for where the employee makes the disclosure of pay information based on information obtained in the course of performing his or her essential job functions.  For example, an employee in the human resources department may not disclose employee salaries under the guise of the Final Rule.  Likewise, the Final Rule contains an exception for action taken against an employee pursuant to a workplace rule that does not prohibit compensation discussions.  For example, if an employee violates a policy regarding timeliness, the employer may enforce the policy even if the employee was late in beginning his or her shift because he or she was discussing pay with other employees.

Contractors and subcontractors must incorporate this new non-discrimination requirement into the EEO clause in covered contracts and subcontracts, handbooks, and application materials.

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Filed under Affirmative Action Plan (AAP), Compensation, Department of Labor, OFCCP, Office of Federal Contract Compliance Programs

OFCCP Releases Proposed Rule Prohibiting Adverse Action Against Employees and Applicants Discussing Pay

On September 15, 2014, the Office of Federal Contract Compliance Programs (“OFCCP”) released its Notice of Proposed Rulemaking (“Proposed Rule”) implementing President Obama’s Executive Order 13665 (“EO 13665”) banning contractors from taking adverse action against employees and applicants who discuss their pay.  When President Obama signed EO 13665 on April 8, 2014, he instructed OFCCP to issue a proposed rule prohibiting federal contractors from discharging or discriminating against employees or applicants who inquire about, discuss, or disclose their own compensation or compensation of other employees and applicants.  In a Fact Sheet on the Proposed Rule, OFCCP stated that the purpose of the Proposed Rule is to narrow the pay gap disadvantaging women and minorities by allowing them to discuss their pay and know if they are “being underpaid compared to [their] peers.”  OFCCP also believes the Proposed Rule would “reduc[e] pay discrimination and ensur[e] that qualified and productive employees receive fair compensation”, by enabling them to discuss their pay without fear of adverse action.

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OFCCP Releases Proposal Requiring Contractors to Disclose Compensation Data Annually

On August 6, 2014, the Office of Federal Contract Compliance Programs (“OFCCP”) released a Notice of Proposed Rulemaking requiring federal contractors and subcontractors with 100 or more employees to submit an annual equal pay report. This compensation data tool was published in response to President Obama’s April 8, 2014 Presidential Memorandum calling for proposed regulations to be published within 120 days.

The equal pay report will have a significant impact on federal contractors. According to OFCCP, the equal pay report will “enable OFCCP to direct its enforcement resources toward federal contractors whose summary data suggests potential pay violations, while reducing the likelihood of reviewing companies that are less likely to be out of compliance.” The proposed rule was officially published in the Federal Register on August 8, 2014. There is a 90-day public comment period with comments due by November 6, 2014.

Who Must File

The proposed rule applies to prime contractors and first tier subcontractors (and construction subcontractors of any tier) who are required to file EEO-1 Reports, have more than 100 employees, and have a federal contract, subcontract, or purchase order amounting to $50,000 or more lasting for at least 30 days (including modifications).

OFCCP is also considering covering postsecondary academic institutions that file the IPEDS report with the Department of Education.

Requirements of Equal Pay Report

The NPRM contemplates requiring covered federal contractors to submit an equal pay report that includes the following information:

  • Total number of workers within each EEO-1 job category by race/ethnicity and sex;
  • Total W-2 wages for all workers in each EEO-1 job category broken down by race/ethnicity and gender; and
  • Total hours worked for all employees in each EEO-1 category by race/ethnicity and gender.

No individual employee pay data will be required.

Reporting Method

OFCCP plans to design a web-based portal for covered contractors to report and maintain compensation information. OFCCP indicates that the webportal would be protected by applicable government IT security standards where contractors key in their data electronically or upload their forms into the system using the standard formats provided by OFCCP.

Data May be Basis for Audit Not Sanctions

Data from the proposed equal pay report would not in itself result in any sanction or adverse action against the contractor for compensation discrimination, according to OFCCP. However, OFCCP will use the information to prioritize contractors for compliance evaluations. If OFCCP selects a contractor for a compliance evaluation, that review would cover compensation data beyond what is in the contractor’s equal pay report and would involve a more specific and detailed data request that are typical in an OFCCP compliance evaluation.

Aggregate Data

OFCCP is also considering publishing aggregate information based on pay data collected from the equal pay report, but the data will not be specific to any particular contractor. The data could include ranges or averages by industry, labor market, or other groupings.

Effective Date/Comments

OFCCP is proposing an annual reporting window of January 1 to March 31. The data in this report would be based on W-2 earnings for the prior calendar year (Jan. 1- Dec 31) for all employees included in the contractor’s EEO-1 report for that year, which will generally align with the time period covered under a contractor’s W-2 filings.

Implications

The practice of OFCCP using the equal pay report to target its enforcement efforts could potentially eliminate OFCCP’s current random audit selection process and replace it with a targeted selection process. Despite the potential constitutional concerns, contractors should strongly consider conducting proactive pay equity analyses now, so that any areas of concern can be addressed before data is reported to OFCCP. This should include a total compensation analysis since contractors will need to report total compensation (i.e., all wages contained in the Form W-2) rather than just base salary.

Contractors should also be wary of potential confidentiality issues. Although OFCCP attempted to allay contractors’ confidentiality fears, the data, much like EEO-1 reports, could be turned over to private plaintiff’s attorneys for use in civil litigation. OFCCP believes that the Freedom of Information Act (“FOIA”) would exempt the disclosure of contractor data if it can be shown that (1) the contractor is still in business (2) the data is confidential and sensitive, and (3) the release of data would subject the contractor to commercial harm. For now, it is unclear whether these exemptions would actually shield contractors’ pay data in all cases.

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President Obama Takes Executive Action Reinforcing the Regulatory Agenda on Investigating Federal Contractors’ Compensation Practices

In recognition of National Pay Equity Day, President Obama took two executive actions on April 8, 2014 to continue his pay equity agenda: (1) President Obama signed Executive Order on Non-Retaliation for Disclosure of Compensation Information (“Executive Order”) amending Executive Order 11246 to prohibit federal contractors from discriminating or retaliating against employees or applicants for discussing their compensation with one another; and (2) President Obama issued a memorandum directing the Department of Labor (“DOL”) to publish regulations requiring federal contractors and subcontractors to submit pay data, by race and gender, for their employees (“Compensation Memorandum”). These executive actions, along with President Obama’s Executive Order to increase the minimum wage for employees working on federal contracts, mark another significant step in this Administration’s push for increasing enforcement and oversight over federal contractors’ compensation practices.

Executive Order

The Executive Order mandates that federal contractors cannot “discharge or in any manner discriminate against” employees and applicants who have “inquired about, discussed, or disclosed” their own or another employee’s or applicant’s compensation information. The Executive Order explains that the reason for this change is that it will “enhance the ability of Federal contractors and their employees to detect and remediate unlawful discriminatory practices, which will contribute to a more efficient market in Federal contracting.”

The Executive Order excludes from this protection unauthorized disclosures by employees who learn of the compensation information as part of their essential job functions (e.g., HR and compensation managers) unless (1) they are disclosing compensation information to someone who already has access to that information; or (2) they are disclosing that in response to a formal complaint or charge in furtherance of an investigation. DOL will be required to issue regulations implementing this requirement by September 15, 2014.

Compensation Memorandum

The Compensation Memorandum is premised on a claim that the pay gap between men and women is a direct result of a “lack of sufficiently robust and reliable data on employee compensation.” It directs DOL to propose regulations requiring federal contractors and subcontractors to submit data on the compensation paid to their employees, including data by sex and race.

When creating the proposed regulations, the Executive Order instructs DOL to consider:

  • “maximiz[ing] efficiency and effectiveness” by focusing efforts on contractors where the reported data shows pay violations;
  • using the data to “encourage greater voluntary compliance” with compensation laws by federal contractors and “analyz[ing] industry trends”;
  • minimizing the burden on federal contractors, particularly small businesses; and
  • “avoid[ing] new record-keeping requirements” by relying on “existing reporting frameworks to collect the summary data.”

Despite DOL’s announcement in its current regulatory agenda that OFCCP planned to publish a Notice of Proposed Rulemaking (“NPRM”) on the compensation data collection tool in January 2014, no proposal has yet been published. The Presidential Memorandum will expedite the publication of NPRM because it directs the DOL to propose regulations by August 6, 2014.

Impact on Federal Contractors

The Executive Order prohibiting discrimination and retaliation against employees and applicants does not change much for federal contractors. Sections 7 and 8 of the National Labor Relations Act already provide employees and applicants the right to discuss their compensation information.

The effect of the Compensation Memorandum’s requirement that contractors to disclose their compensation information could be significant, but the precise impact will depend on the details of the regulations. As of now, it is unclear whether OFCCP will develop new or additional compensation reporting requirements and how OFCCP will use the compensation tool to store and analyze compensation data.

We expect OFCCP to continue to ratchet-up its investigation of contractors’ compensation information during audits. This means that contractors should be vigilant about reviewing their compensation practices now and proactively addressing pay disparities before an audit. Now is the time for contractors to consider undertaking pay equity studies and reviews of their compensation policies and practices under the protection of the attorney-client privilege.

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OFCCP Continues to Overhaul Its Investigatory Platform with the Release of the New Federal Contractor Compliance Manual

Late last week, OFCCP released the much anticipated update to the Federal Contractor Compliance Manual (“FCCM”).  The FCCM provides the procedural framework compliance officers use when auditing federal contractors and subcontractors.  The last version of the FCCM was published in the late 1980s, and OFCCP has been hinting over the last couple of years that it would be releasing a new FCCM.

The new 500-plus page FCCM includes the same basic structure as the previous version, but adds a new section for reviews of functional affirmative action plans.  The FCCM has also been updated to reflect OFCCP’s current policies and procedures regarding investigating contractor’s practices for compliance and the remedies it will pursue if violations are uncovered.  For example, the new FCCM contains new procedures for compliance officers to use when conducting adverse impact analyses, reviews of compensation, and calculating back pay awards for discrimination.

The new FCCM covers the following topics:

  • Desk audits of contractors’ compliance with OFCCP’s laws;
  • Onsite reviews of contractors’ establishments;
  • Compliance reviews of construction contractors;
  • Procedures for conducting Corporate Management Compliance Evaluations;
  • Compliance reviews of FAAPs;
  • Investigations of individual and class complaints;
  • Designing remedies for employment discrimination violations; and
  • Procedures for resolving violations during compliance evaluations.

The FCCM also contains a glossary of key words and phrases and includes examples of model forms, letters, and worksheets compliance officers can use during compliance evaluations. 

OFCCP was quick to note that the revised FCCM is nonbinding and is “subject to change without public notice.”  OFCCP released the new FCCM internally to its compliance officers earlier this summer, so many of them are prepared to implement the new procedures in the FCCM.  OFCCP also held a public webinar explaining the updated FCCM on August 27, 2013 and will be making the slides and recording from the webinar available on its website.

We anticipate that with the official release of the FCCM, contractors will notice a change in the posture of audits.  For the last several years, OFCCP has been overhauling its entire investigatory platform “piece-by-piece,” including revamping how it investigates contractors’ compensation systems.  The new FCCM is yet another signal that OFCCP will be conducting more intensive and far-reaching reviews of contractors’ practices.

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Filed under Affirmative Action Plan (AAP), Compensation, Department of Labor, Discrimination, OFCCP

OFCCP Significantly Overhauls Its Compensation Standards

On February 26, 2013, the Office of Federal Contract Compliance Programs (“OFCCP”) announced a significant shift in its approach to analyzing contractors’ compensation decisions during audits.  In the press release, OFCCP stated that it was rescinding its “Voluntary Guidelines” and “Compensation Standards” from 2006 because they “limited OFCCP’s ability to conduct full investigations and use every enforcement tool at its disposal to combat pay discrimination.”  In its place, OFCCP issued Directive 307, which establishes many new practices and procedures OFCCP will follow when investigating contractors’ compensation practices during audits. The new procedures took effect on February 28, 2013.

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OFCCP Unveils Its 2013 Regulatory Agenda

On December 21, 2012, the Office of Federal Contract Compliance Programs (“OFCCP”) unveiled its 2013 Unified Agenda of Regulatory and Deregulatory Actions (“Unified Agenda”) on the Office of Management and Budget’s (“OMB’s”) website.  In the first-term of the Obama Administration, OFCCP proposed a number of regulatory changes, including significant changes to Section 503 of the Rehabilitation Act and the Vietnam Era Veterans Readjustment Assistance Act (“VEVRAA”) that contemplated requiring contractors to undertake additional affirmative action obligations for individuals with disabilities and covered veterans.  In 2012, many of these regulatory initiatives were put on hold in light of the presidential election. Now that President Obama has won reelection, the OFCCP intends to aggressively pursue its regulatory agenda once again.

According to the Unified Agenda, OFCCP is planning to implement or propose several major regulatory initiatives in 2013:

Final Rules on Section 503 of the Rehabilitation Act:  In December 2012, OFCCP released its proposed rules for Section 503 of the Rehabilitation Act.  The proposed rules contemplated requiring contractors to undertake a number of additional affirmative action obligations for individuals with disabilities, including establishing a seven percent goal in each job group at the contractors’ establishments for disabled individuals. See our prior post for the details of OFCCP’s proposed changes to Section 503.  OFCCP indicated in its Unified Agenda that it plans to release final rules on Section 503 in April 2013.

Final Rules on VEVRAA:  In April 2011, OFCCP released its proposed rules for VEVRAA. Similar to Section 503, the proposed changes to VEVRAA would require contractors to engage in various recordkeeping and other obligations designed to increase protections for covered veterans.  See our prior post for more information on OFCCP’s proposed changes to VEVRAA.  Through its Unified Agenda, OFCCP has indicated that it plans to release the final rule on VEVRAA in April 2013.

Proposed Rule on the Compensation Data Collection Tool:  In August 2011, OFCCP released an Advanced Notice of Proposed Rulemaking to solicit input on a compensation tool that OFCCP could use to analyze contractors’ compensation practices.  In August 2012, the National Academy of Sciences (“NAS”) lambasted OFCCP for failing to articulate adequately how it would analyze compensation data and urged the agency not to move forward with increased data collection requirements until it addressed some of the current deficiencies.  Despite these recommendations, OFCCP plans to unveil its new compensation data collection tool through a Notice of Proposed Rulemaking (“NPRM”) in June 2013.

Proposed Changes to the Sex Discrimination Guidelines:  OFCCP intends to issue proposed rules on its Sex Discrimination Guidelines by August 2013.  OFCCP has indicated that the Sex Discrimination Guidelines “have not been updated in more than 30 years and warrants a regulatory lookback.”  OFCCP plans to “create sex discrimination regulations that reflect the current state of the law in this area” and reflect the increased “participation in the labor force” of women.

Proposed Regulations for Construction Contractors:  OFCCP plans to issue proposed rules revising the regulations governing federal constructions contractors by October 2013.  OFCCP has stated that these rules would “enhance the effectiveness of the affirmative action programs of . . . construction contractors” by removing “outdated goals” and giving “contractors increased flexibility to assess their workforce to determine whether disparities in the utilization of women or the utilization of a particular racial or ethnic group in an on-site construction job group exists.”

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Filed under Affirmative Action Plan (AAP), Compensation, Department of Labor, Disability Discrimination and Accommodation, Discrimination, OFCCP, Veterans