Category Archives: Department of Labor

OFCCP Tweaks Scheduling Letter and Itemized Listing, but Diminishes Confidentiality Protection

The Office of Federal Contract Compliance Programs (“OFCCP”) announced that, as of July 1, 2016, it is using a new Scheduling Letter and Itemized Listing when it commences compliance reviews of federal contractors.  Although the new Scheduling Letter and Itemized Listing changes language in a number of places, most of the changes are minor and provide clarification, rather than a new substantive requirement.

A notable change, however, is that OFCCP removed language that previously promised contractors that their submissions would be treated as confidential, unless disclosure was appropriate under the Freedom of Information Act.  The previous language stated, “Rest assured that OFCCP considers the information you provide in response to this Scheduling Letter as sensitive and confidential.”

In contrast, the new language states:

Please also be aware that OFCCP may use the information you provide during a compliance evaluation in an enforcement action.  We may also share that information with other enforcement agencies within DOL, as well as with other federal civil rights enforcement agencies with which we have information sharing agreement.

Finally, the public may seek disclosure of the information you provide during a compliance evaluation.  Under current law and regulations, OFCCP is required to comply with Freedom of Information Act, the Trade Secrets Act, the Privacy Act, and the 1987 Executive Order governing the disclosure of confidential commercial information.

The other changes include:

  • Adding that OFCCP “will” notify VETS if a contractor has failed to comply with the requirement to submit its annual report on veteran hiring/workforce representation (the VETS-4212 form);
  • Splitting the affirmative action plan submissions covering veterans and individuals with disabilities into separate requests;
  • Clarifying that contractors may submit either an organizational profile or a workforce analysis (as many contractors have already been doing);
  • Stating with greater specificity that, if a contractor has failed to accomplish a particular placement goal, then it must describe the good faith efforts “to remove identified barriers, expand equal employment opportunity, and produce measurable results;” and
  • Specifically giving contractors the option to either submit data using the race and ethnic categories found on the EEO-1 survey (Hispanic or Latino, White, Native Hawaiian or Other Pacific Islander, Asian, American Indian or Alaska Native, or Two or More Races) or to use the following racial and ethnic groups: African-American/Black, Asian/Pacific Islander, Hispanic, American Indian/Alaskan Native, and White.

Leave a comment

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

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.

Leave a comment

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

Executive Order Requiring Paid Sick Leave Is On The Horizon

President Obama is said to have drafted an Executive Order, obtained by the New York Times, which would require federal contractors and subcontractors to provide their employees with a minimum of 56 hours (about 7 days) of paid sick leave annually to use for their own illness or to care for sick relatives.  The draft order would also allow the leave to be used for medical attention, counseling, and legal action relating to domestic violence and sexual assault.  The draft order specifies that the right to take paid leave cannot be contingent upon the employee finding a replacement during the leave.  Unpaid sick leave would carry over from year to year.  Compliance with the Executive Order would be a pre-requisite to obtaining a contract with the Government.

President Obama’s action comes after the Department of Labor (the “DOL”) released a statistic showing that 39% of the private sector work force currently has no paid sick leave.  The DOL is said to be reviewing the draft order, but has stated that no final decision has been made yet.  If the order is issued, the DOL secretary will issue detailed regulations by September 30, 2016.

Leave a comment

Filed under Department of Labor, Executive Order

OFCCP Proposes New Sex Discrimination Guidelines for Contractors and Subcontractors

On January 28, 2015, the Office of Federal Contract Compliance Programs (“OFCCP”) announced proposed changes to its sex discrimination guidelines (“Guidelines”).  The current Guidelines set forth the interpretations and guidelines for implementing the nondiscrimination and affirmative action requirements related to sex under Executive Order 11246.  The Guidelines have not been updated since 1970.  According to OFCCP, the proposed changes to the Guidelines will not impose any new obligations on federal contractors and subcontractors, but merely “align[s] OFCCP’s regulations with [the current law and interpretations under] Title VII of the Civil Rights Act of 1964, as interpreted by courts and the Equal Employment Opportunity Commission.”

The notice of proposed rulemaking addresses various issues, including pay, sexual harassment, failure to provide workplace accommodations for pregnancy and gender identity, and family caregiving.  The highlights of the proposed Guidelines include:

  • Adverse treatment of an employee because of gender-stereotyped assumptions about family caretaking responsibilities is discrimination;
  • Leave for childcare must be available to men on the same terms as it is available to women;
  • Contractors must provide workplace accommodations to women affected by pregnancy, childbirth, and related conditions, ranging from extra bathroom breaks to light-duty assignments;
  • Compensation discrimination can result from job segregation or classification on the basis of gender, not just unequal pay for equal work;
  • Contractors must provide equal benefits and equal contributions for both males and females participating in fringe-benefit plans;
  • The Guidelines now include explicit prohibition of both quid pro quo and hostile work environment sexual harassment and encourage contractors to develop and implement procedures to “ensure an environment in which all employees feel safe …[and] are not harassed because of sex”;
  • Adverse treatment of employees because they do not conform to gender norms and expectations about appearance, attire, and behavior is unlawful sex discrimination; and
  • Discrimination based on an individual’s gender identity is unlawful sex discrimination.

OFCCP has included a new page containing FAQs and other resources related to changes proposed to the Guidelines.  The proposed Guidelines are expected to be published in the Federal Register on January 30, 2015.  Assuming it is published on that date, interested parties will have until March 31, 2015 to provide comments.

Leave a comment

Filed under Department of Labor, OFCCP

OFCCP Publishes New FAQs on the Collection of Self-Identification Information for Protected Veterans

On January 20, 2015, the Office of Federal Contract Compliance Programs (“OFCCP”) published two Frequently Asked Questions (“FAQs”) addressing what self-identification information contractors are required to solicit from protected veterans during the post-offer stage of the application process.  Specifically, in light of the new VETS-4212 Form that does not require information on the specific protected veteran categories, OFCCP considered whether, contractors must continue to solicit information about the specific protected veteran category or categories that an applicant falls into during the post-offer stage, or whether contractors can more broadly invite applicants to self-identity as protected veterans.  OFCCP decided that contractors need not collect such category-specific data during the post-offer stage:

[S]ince the new VETS-4212 report no longer requires contractors to provide this information by the individual protected veteran categories, contractors are not required to invite self-identification by category in order to comply with VEVRAA’s post-offer invitation requirement.  Rather, contractors need only invite those offered a job to indicate whether they are protected veterans under any of the VEVRAA categories.

This marks a change from the previous post-offer requirement.  The underlying self-identification requirements come from OFCCP’s current regulations, issued on March 24, 2014, which require contractors to invite applicants to voluntarily self-identify their protected veteran status during both the pre-offer and post-offer stages of the application process.  For the pre-offer stage, contractors are not required to invite applicants to self-identify their specific protected veteran categories.  There is no change to this requirement. At the post offer stage, which includes the period after candidates receive offers of employment but before they began working, contractors were required to invite applicants to self-identify the specific category or categories of protected veteran to which they belong, which includes recently separated veterans, disabled veterans, Armed Forces service medal veterans, and active duty wartime or campaign badge veterans.

Until now, the reason for the category-specific data at the post-offer stage was needed to complete the Veterans Employment and Training Services (“VETS”) VETS-100A Form. However, in September 2014, after OFCCP’s veteran regulations had gone into effect, VETS released a new VETS-4212 Form to replace the VETS-100A form.  Under the new VETS-4212 form, contractors are only required to report aggregate data on the number of protected veterans rather than the specific categories of protected veterans.  On this basis, OFCCP reasoned in the new FAQs that contractors are no longer required to solicit information about the specific categories of protected veterans.

OFCCP, however, stated that contractors may still solicit such information.  In deciding whether to continue soliciting the specific protected veteran categories from applicants at the post-offer stage, contractors should weigh the value of this more detailed information with the burden of the additional recordkeeping and the risk of collecting information that is no longer required by OFCCP.

Leave a comment

Filed under Department of Labor, OFCCP, Office of Federal Contract Compliance Programs, Veterans

OFCCP Opens LGBT Final Rules to Limited Notice and Comment While Lawmakers Protest

The Office of Federal Contract Compliance Programs (“OFCCP”) is seeking limited public comment on the information collection requirements (“ICR”) of its Final Rule for LGBT workers amidst protests by members of the Committee on Education and the Workforce of the House of Representatives over its rulemaking process.  OFCCP had initially announced on December 3, 2014 its Final Rule implementing President Obama’s Executive Order 13672, which prohibits discrimination by federal government contractors and subcontractors on the basis of sexual orientation and gender identity.

On December 9, 2014, OFCCP filed a notice in the Federal Register seeking comments on the ICR in accordance with the Paperwork Reduction Act, which requires OFCCP to invite public comment on the burdens and utility of any new information collection requests.  The deadline for comments on the ICR is February 6, 2015.  The Final Rule is slated to become effective on April 8, 2015.

Before the Final Rule was published, the Committee on Education and the Workforce of the House of Representatives, which oversees OFCCP, sent a letter to OFCCP Director Patricia Shiu protesting OFCCP not opening the Final Rule for public comment.  It is unclear at this point as to what if any impact this will have on OFCCP’s Final Rule.

What Is New in the Final Rule

Under the Final Rule, contractors are prohibited from discriminating on the basis of sexual orientation and gender identity.  The new regulations do not define “sexual orientation” or “gender identity”, but OFCCP notes that it uses the same definition used by Equal Employment Opportunity Commission and case law developed under Title VII.   As of the effective date of the Final Rule, OFCCP will investigate complaints of discrimination on basis of sexual orientation and gender identity.

The Final Rule also requires contractors to update some of their technical compliance practices.  The Final Rule modified the Equal Opportunity Clause, which must be flowed-down in all covered subcontracts that are entered or modified on or after the effective date.  Contractors are still permitted to incorporate the Equal Opportunity Clause by reference.  The Final Rule also requires contractors to update their job postings and advertisements to indicate that all qualified applicants will receive consideration for employment without regard to sexual orientation or gender identity in addition to the normal protected categories of race, color, religion, sex, national origin, veteran status, and disability status.

What is Unaffected in the Final

The new regulations do not impact existing affirmative action plan requirements for females and minorities.  Contractors are not obligated to solicit information from applicants or employees pertaining to sexual orientation or gender identity, nor report or analyze such data for applicants and employees.  OFCCP’s Frequently Asked Questions specify that contractors may still choose to ask applicants and employees to voluntarily self-identify their sexual identity or gender identity, unless prohibited by state law.

What Contractors Should Do

Contractors should proactively review and update their job postings, job advertisements, and policies to prohibit discrimination on the basis of sexual orientation and gender identity.  Although the Final Rule does not go into effect until April 8, 2015, OFCCP noted that gender identity is already prohibited by OFCCP’s laws based on their August 2014 directive.  In addition, contractors who flow-down the entire Equal Opportunity Clause in covered subcontracts should update the clause to include the new language.

Leave a comment

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

OFCCP Sends New Round of Potential Audit Letters

The Office of Federal Contract Compliance Programs (“OFCCP”) recently sent Corporate Scheduling Announcement Letters (“CSALs”) to 2,500 federal contractor establishments warning of possible audits.  OFCCP sends CSALs to contractors’ specific establishments as a courtesy to let contractors know that certain locations have been identified for potential audit.  CSALs do not mean that the contractor has been selected for an audit, but rather put contractors on notice that their establishments may be audited.  The audit does not actually begin until the contractor receives the Scheduling Letter from OFCCP.

Most OFCCP audits for supply and service contractor establishments are based on the Federal Contractor Selection System (“FCSS”). The FCSS generally releases names of contractors for audits two times per fiscal year.  This latest round of CSALs marks the first release of the FY 2015.  According to OFCCP’s FAQ, 993 distinct companies and 25 industries are represented among the 2,500 establishments on the FY 2015 scheduling list.  This list includes 27 Corporate Management Compliance Evaluations where OFCCP investigates glass ceiling issues.  Contractors can confirm whether one or more of their establishments were mailed CSALs by faxing a written request on company letterhead to OFCCP’s Division of Program Operations at (202) 693-1305.

Because contractors receiving CSALs are scheduled for audits in most cases, contractors receiving these notices should start to review their compliance and prepare for a potential audit as soon as possible. This is particularly important in light of OFCCP’s new Scheduling Letter, which drastically expanded the data required to be submitted to OFCCP at the outset of an audit.  You can learn more about the new Scheduling Letter here.

Leave a comment

Filed under CSAL, Department of Labor, OFCCP, Office of Federal Contract Compliance Programs, Scheduling Letter