OFCCP Sends Survey Form for Individuals with Disabilities to OMB

OFCCP’s revised regulations regarding individuals with disabilities state that the agency will provide the survey form that federal contractors and subcontractors are to use to survey individuals with disabilities. That form has now been sent to the Office of Management and Budget (OMB) for review. The form can be found at http://www.reginfo.gov/public/do/PRAICList?ref_nbr=201307-1250-001. (Click on the "Voluntary Self-Identification of Disability" to open the actual form.)  OMB must approve this form before OFCCP can require its use by federal contractors and subcontractors. Once approved by OMB, companies will be required to use this specific form to survey individuals with disabilities.

It appears that the survey form currently available at OMB’s website would be used to survey both applicants and employees. The requirement to survey applicants is a new requirement under the revised regulations. Companies will need to start using OFCCP’s prescribed survey form either on March 24, 2014 or at the time that affirmative action plans (AAPs) are being updated after that date. For example, a company that has an affirmative action plan for individuals with disabilities that is updated each year in January would begin using OFCCP’s prescribed form on January 1, 2015.

The version of the survey form currently at OMB has no place for the name of an applicant or employee. OFCCP Director Patricia Shiu was asked about this on October 18 when she appeared at the National Employment Law Institute’s affirmative action briefing in Washington, DC. Ms. Shiu and OFCCP Policy Division Branch Chief Naomi Levin responded that they expected companies would associate the name of an applicant or employee with the form. Ms. Shiu and Ms. Levin also indicated that the form is still under review by OMB and may undergo changes before it is released for use by federal contractors and subcontractors.

The current version of the form appears to have another item that will need to be modified before its final release. While the form states that companies “are required to invite...employees to self-identify each year,” the revised regulations actually require companies to conduct a survey of the entire workforce every five years. Companies must conduct an initial re-survey within one year of the time that the regulations become effective or their affirmative action plans are updated.

Patricia Shui Appears at NELI conference

OFCCP head Patricia Shiu made an appearance on Friday at the National Employment Law Institute conference in Washington DC.  She took questions in a variety of topics, including the survey form for persons with disabilities that was recently released to the Office of Management and Budget (OMB).  She indicated that the form, which does not include a place for applicant or employee name, should, in fact, be tied to individual applicants and employees.

OFCCP Makes Scheduling Announcement List Available and Then Withdraws List

At the 2012 National Industry Liaison Group (NILG) conference in Hawaii, OFCCP announced that it would be making its scheduling announcement list publically available on its website as a service to federal contractors.  The scheduling announcement list is the list of companies that would be received a pre-scheduling notice from OFCCP informing these companies that they would be subject to an affirmative action compliance review.  These pre-scheduling notices (formally called a corporate scheduling announcement letter or CSAL) are NOT the letter actually opening a review.  Instead, they are, in OFCCP's words, a "courtesy notification" of an impending review.  (For more information on CSALs, see our earlier blog post on this subject.)

On Thursday, July 18, 2013, OFCCP made a portion of the 2012-13 scheduling announcement list publically available on its website.  The list could be viewed at http://www.dol.gov/ofccp/regs/compliance/SAL/SAL_MidAtlantic.htm. By the next day, however, the list had my disappeared from the website.  At the 2013 NILG conference in Indianapolis, which occurred at the end of July, OFCCP explained that the scheduling announcement list had been posted in error and that the agency had not intended for the list to be publically released.  OFCCP has made no further commitments to making its scheduling announcement list available on its website.

Reaction from federal contractors and subcontractors to having the scheduling announcement list posted on the OFCCP website has been mixed.  Some large contractors were looking forward to having one source to review in order to determine how many establishments would be undergoing a compliance review.  OFCCP no longer sends a unified listing of all establishments at a company that will be undergoing review to a corporate headquarters office, instead sending the pre-scheduling notice directly to the establishment that will be undergoing review.  This has been a problem for certain larger organizations.  However, some contractors, both large and small, have been troubled by the idea of having the names of establishments to be reviewed released to the general public.

VETS Encounters Technical Difficulties with System Used to File VETS-100/100A Report

It appears that the Veterans Employment and Training Service (VETS) is once again having problems with the on-line system used to file the annual VETS-100 and VETS-100A reports. This has been something of an annual issue and it’s not clear why VETS can’t seem to develop a system that allows for the effective filing of these reports. However, for the moment, companies will need to wait to file for 2013.

Federal contractors and subcontractors are required to file the VETS-100 and/or VETS-100A report in the third quarter of each year. We believe that almost without exception companies should be filing the VETS-100A report rather than the VETS-100 report, as the VETS-100 report is only used by companies that have unmodified federal contracts from earlier than December of 2003. A very small number of companies have contracts which are that old, and almost all (if not all) of these contracts have been modified in some way. Thus, companies should be filing the VETS-100A report.

OFCCP is routinely asking for copies of the latest VETS-100 or 100A filings during compliance reviews, and thus it is important to file the report.  It's simply not clear when companies will be able to do so for 2013.  VETS notice about the VETS-100/100A filing says "We are currently experiencing technical difficulties with the VETS 100/100A filing systems and we are not able to receive filings at the present time. We hope to have these system issues resolved shortly and appreciate your patience."

OFCCP Sends Final Version of Regulations Regarding Persons with Disabilities to OMB

OFCCP has been busy this week.

On Wednesday, July 31, OFCCP sent the final version of the agency's proposed revisions to its regulations regarding persons with disabilities to the Office of Management and Budget (OMB).  This follows OFCCP's submission of the final version of its proposed revisions to the veterans regulations on July 30.  As with the veterans regulations, approval by OMB is the final step before the revisions to the regulations regarding persons with disabilities would become effective.

OFCCP first published its proposed revisions to the regulations regarding persons with disabilities in December of 2011.  While there were many comments from the public concerning the proposed veterans regulations, there were even more concerning the disability regulations, including a very substantial number of concerns raised by federal contractors and subcontractors and their representatives.  OFCCP had taken no formal action on the proposed revisions to the regulations regarding persons with disabilities until submitting the final version of its revisions on July 31.

In our related post on the veterans regulations, we noted that there has been much speculation as to why there was such a delay in providing a final version of the regulations to OMB.  Regardless of what was preventing OFCCP from submitting final regulations previously, the agency has acted in a dramatic fashion in the last few days.

As we noted in our post on the veterans regulations, it is not clear when OMB will act on OFCCP's submission of its final revisions to the regulations regarding persons with disabilities.  The public comments regarding these regulations raised many important concerns and OMB will have much to consider before deciding whether to approve these regulations.  Whether the revised regulations receive approval from OMB may depend in part on changes that OFCCP has made to its initial submission.

Documentation of OMB's receipt of the final regulations regarding persons with disabilities can be found on the reginfo.gov website http://www.reginfo.gov/public/do/eoDetails?rrid=123245. Unfortunately, there is no formal way to view the final version of the revised regulations until OMB makes a decision about these regulations or until OFCCP decides to release them to the public.

OFCCP Sends Final Version of Veterans Regulations to OMB

On Tuesday, July 30, OFCCP sent the final version of the agency's proposed revisions to its regulations regarding veterans to the Office of Management and Budget (OMB).  Approval by OMB is the final step before the revisions to the veterans regulations would become effective.

OFCCP first published its proposed revisions to the veterans regulations in April of 2011.  There were an extensive number of comments about the proposed revisions, including a substantial number of concerns raised by federal contractors and subcontractors and their representatives.  OFCCP had taken no formal action on the proposed revisions to the regulations until submitting the final version of its revisions on July 30.

There has been much speculation as to why there was such a delay in providing a final version of the regulations to OMB.  As we've noted on this blog, part of the delay may involve the fact that both OMB and the Department of Labor were without heads of their respective agencies until recently.  In fact, it only took 12 days from the time that Thomas Perez was confirmed as the new Secretary of Labor until OFCCP sent its final revisions to OMB.

It is not clear when OMB will act on OFCCP's submission.  OMB has the right to approve the final regulations as submitted, to deny approval if the regulations do not meet the requirements of the Paperwork Reduction Act or other laws, or to request revisions from OFCCP before approval.  While some commentators have speculated that the revised regulations may be approved some time in August, others have suggested that it may be later this year before these regulations are approved, if they are approved at all.

Documentation of OMB's receipt of the final regulations can be found on the reginfo.gov website at http://www.reginfo.gov/public/do/eoDetails?rrid=123242.  Unfortunately, there is no formal way to view the final version of the revised regulations until OMB makes a decision about these regulations or until OFCCP decides to release them to the public.

Perez Confirmed as Secretary of Labor

After months of waiting, and after some tense moments over whether the Democrats in the Senate would fundamentally change the rules of the Senate, Thomas Perez was confirmed as new Secretary of Labor on July 18, 2013.  Senate Republicans had been blocking Mr. Perez's confirmation since May, but his nomination finally was approved after both parties agreed to proceed to a vote on a number of controversial nominations.  Senate Democrats had threatened to implement the "nuclear option" in regard to presidential appointments by changing senate rules to thwart any possible filibuster on such nominations, but a compromise was reached at the last second, and a number of President Obama's appointees, including Mr. Perez, were approved during the week of July 15.

Mr. Perez faces a number of challenges upon joining the Department of Labor.  The Office of Federal Contract Compliance Programs (OFCCP) and other DoL agencies have a variety of controversial proposals that are waiting for final publication.  Among the proposed rules awaiting action are OFCCP's proposed revisions to the regulations regarding veterans and persons with disabilities.  When (or if) these proposals will see the light of day remains unknown.  Mr. Perez also needs to determine whether there will be any changes in the leadership team at DoL.  While nothing has been said in this regard, Mr. Perez appears to have a strong relationship with OFCCP head Patricia Shiu, and we expect she will continue in her role at OFCCP.

How to Set Priorities for an OFCCP Review

This article originally appeared in the May 2013 edition of the LocalJobNetwork "OFCCP Digest." It is the first of a two-part series.

Part 1 - Understanding How OFCCP’s Focus Areas Affect Setting Priorities

This article is the first of a two-part series. In this article, we’ll provide some general information on how to set priorities in preparation for an OFCCP review. In the follow-up article, we’ll discuss a number of specific items that should be priorities for all federal contractors and subcontractors.

The letter from the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) that opens an affirmative action compliance review sends many companies into a panic. There is concern over what must be submitted and when, how to prepare for questions that may occur, and how to deal with unexpected inquiries that may be part of the review. Many of these issues can be dealt with prior to the time a review actually begins if a company gives priority to the items that may be most important during a compliance review.

Supreme Court Limits Definition of "Supervisor" in Workplace Harassment Case

On Monday, June 24, the Supreme Court narrowed the legal definition of "Supervisor" as it applies to workplace harassment cases.  In Vance v. Ball State University, a 5-4 decision, the Court held that an employee must be able to take tangible employment actions in order to be considered a supervisor.

Title VII of the Civil Rights Act prohibits discrimination by employers based on protected characteristics such as race, color, religion, sex, or national origin. When workplace harassment based on a protected classification occurs, the standard for determining liability varies depending on who is committing the discriminatory acts. If the harassing employee is a co-worker, then the employer is only liable if the employer was negligent in controlling working conditions. If the harassing employee is a supervisor, the standard changes. Companies are much more likely to be liable for the actions of supervisors, who stand in as representatives of the company.

While companies remain liable for the actions of supervisors, the definition of who is a supervisor was narrowed and clarified by the Court.  The Court's decision indicated that only those who are empowered by the employer to take tangible employment actions against an employee can now be considered supervisors. In the past there was some debate if an employee was a supervisor if he or she only oversaw or assigned work, but now the supervisor must be able to take employment action as well. The actions the court lists as tangible employment actions include hiring, firing, demoting, promoting, transferring, or disciplining.

If the supervisor takes tangible employment action against an employee such as firing or demoting the employee, then the employer is always liable. However, if the supervisor didn't take a tangible employment action, the accused employer is only required to show that the employer took reasonable care to prevent and correct harassing behavior, or that the accuser unreasonably failed to take advantage of the preventative or corrective measures available.

Supreme Court Issues Decision in Fisher v. University of Texas

On Monday, June 24, the Supreme Court issued its decision in Fisher v. University of Texas. Fisher, a white applicant, had sued the University of Texas (UT), claiming that the university’s use of affirmative action in the admission process unfairly denied her a spot. Fisher claimed the use of affirmative action violated the Equal Protection Clause of the Fourteenth Amendment. The Court ruled that the lower courts had not used the correct standard of scrutiny in the evaluating the case, and sent the case back to the lower courts for further review. The Court ruled 7 to 1 on this decision, with Justice Kagan recusing herself due to previous involvement in the case during her time as Solicitor General, and Justice Ginsberg dissenting.

No News on OFCCP Proposed Changes to Regulations Regarding Veterans and Persons with Disabilities

In April of 2011, OFCCP published proposed revisions to its regulations regarding veterans.  In December of 2011, the agency published proposed revisions to its regulations regarding persons with disabilities, many of which paralleled the proposals regarding veterans.  While OFCCP has announced various dates when it expected to publish final versions of these regulations, these dates have come and gone without a release of the new regulations.

In its regulatory agenda from December of 2012, the Department of Labor indicated that OFCCP's proposals regarding veterans and persons with disabilities would be issued in final form in June of 2013.  As we have now reached the end of June, it seems unlikely OFCCP is going to make this timeframe.  Whether we will ever see a final version of these revised regulations remains up in the air.  Some people have speculated that these regulations may be issued in fall, while others have suggested that we may see the regulations towards the end of the year.  Frankly, we're not entirely convinced a final version of these regulations will ever make an appearance.

It's unclear exactly why these proposed revisions (or the agency's proposed revisions to its scheduling letter and the accompanying itemized listing that were published in September of 2011) continue to languish.  It is possible there continues to be some concern at the Office of Management and Budget  (OMB) about the possible cost of these proposals to federal contractors and subcontractors.  OFCCP may also be hesitant to release final regulations without first having a Secretary of Labor in place.  (While Secretary of Labor nominee Thomas Perez has been approved by the Senate Health, Education, and Labor committee, his nomination has not yet advanced to the senate floor.)

Regardless of the reasons for the delay, OFCCP continues to focus on issues concerning veterans and persons with disabilities during compliance reviews.  In fact, the agency seems to be implementing some components of these proposed regulations already.  For example, OFCCP compliance officers routinely request extensive information on accommodations for persons with disabilities and routinely ask for numbers of veterans and persons with disabilities among recent hires during compliance reviews.

To see copies of the proposed changes to the regulations regarding veterans and persons with disabilities as well as a copy of the Department of Labor's regulatory agenda from December of 2012, visit the documents page on our website.

New Passwords Required for 2013 EEO-1 Report Filings

The EEOC has reset the passwords for all users of the online EEO-1 filing system. With the resetting of the passwords, companies are no longer able to use their current password to log in to the online system to access previous EEO-1 reports. The agency has indicated that the decision to reset the passwords was made for security reasons. They are recommending that companies now save a PDF copy of the reports once they are certified, rather than relying on the online system to access previously filed reports. To request a new password, companies can click on the following link: https://egov.eeoc.gov/eeo1/reset_password.jsp.  Alternately, companies can send an e-mail to e1.lostloginpassword@eeoc.gov.  Companies can also call the EEO-1 Joint Reporting Committee at 1-877-392-4647 or 1-866-286-6440 for more information.

OFCCP Releases Budget Justification for Fiscal Year 2014

The Office of Federal Contract Compliance Programs (OFCCP) released the agency's budget justification for the 2014 fiscal year, calling for a nearly $3.3 million increase in funding. The budget justification, released in April, outlines OFCCP’s plans for the new fiscal year, which begins in October.  These plans include heightened scrutiny for pay discrimination, increased outreach to communities with high populations of vulnerable workers, and a commitment to getting the agency’s internet-based data collection system online. Of the initiatives found in the budget request, the $1.1 million directed to strengthening pay discrimination enforcement is perhaps the most controversial item considering the budgetary issues the federal government has been facing and the on-going failure by OFCCP to find extensive compensation discrimination during compliance reviews.

Will OFCCP Continue to Enforce Display of "Employee Rights" Poster?

On May 7, the U.S. Circuit Court of Appeals for the D.C. Circuit ruled that the National Labor Relations Board (NLRB) cannot require employers to display a poster that notifies workers of their rights under the National Labor Relations Act (NLRA).  (The full decision by the D.C. Circuit Court can be found on our website.) The NLRB's poster informs employees of their rights to join a union and describes various actions that are illegal under the NLRA. 

It is not clear how this decision affects the requirement to display a nearly identical poster under Executive Order 13496.  Executive Order (E.O.) 13496 is enforced in part by OFCCP.  OFCCP compliance officers are instructed to look for the E.O. 13496 poster during on-site investigations, and to review purchase orders and various materials for compliance with other provisions of the executive order.

While the employee rights poster may be problematic for some federal contractors and subcontractors, we would suggest that companies going through an affirmative action compliance review contact legal counsel before removing the poster.  OFCCP may contend that the obligation to display the poster is one of the actions that federal contractors and subcontractors voluntarily undertake when they choose to take federal funds.

Applicant Tracking Systems and OFCCP Compliance

This article originally appeared in the May 2013 edition of the LocalJobNetwork "OFCCP Digest." It is the second of a two-part series.

The vendors that provide applicant tracking systems routinely suggest that their systems are “OFCCP compliant.” Yet, federal contractors and subcontractors are frequently cited for record-keeping issues associated with applicant data. How can companies ensure that their applicant tracking systems will help them successfully navigate through an OFCCP review?

As a starting point, it is important to note that no applicant tracking system (ATS) can by itself be “OFCCP compliant." Only federal contractors and subcontractors can be OFCCP compliant. The best ATS can be completely useless during an OFCCP compliance review if it is not used properly, and the worst ATS can be a godsend if a company has meticulously used it to record and retain the type of data that OFCCP expects.

OFCCP Issues Notice to Federal Contractors on the Use of the 2006-2010 Census EEO Tabulation

One of the questions that many federal contractors and subcontractors have been asking is "When is the OFCCP going to require us to use updated census information for calculating availability in affirmative action plans (AAPs)?"  The OFCCP has now answered that question with their announcement on May 15, 2013 that federal contractors and subcontractors must use the new information to develop AAPs that begin on or after January 1, 2014.

On November 29, 2012 the Census Bureau released the 2006-2010 EEO Tabulation (2010 EEO Tab). The OFCCP has announced that contractors will be permitted to continue to use the Census 2000 Special EEO File information for the development of 2013 AAPs; however, contractors must use the 2010 EEO Tab information to develop AAPs that begin on or after January 1, 2014. For more about this latest OFCCP notice please click on this link.

While the new census data was released to the public on November 29, it is cumbersome to download, and the Census Bureau has not provided an easily usable tool for accessing this data. This may be one of the reasons that the OFCCP has delayed any requirement to use the new census data until 2014. (For more information on the new census data, see our earlier blog posting).

The release of the new census information is significant because the census information is used in the development of an availability analysis for every affirmative action plan. The purpose of the availability analysis is to show the percentage of qualified minorities and females in various job categories who are available in the areas where a federal contractor recruits for open positions. The information from the availability analysis is then compared to the percentage of minorities and females in a contractor’s workforce in order to determine the areas within the contractor’s workforce in which goals should be set for adding minorities and females. In order to determine availability, the OFCCP requires contractors to use data from the Census Bureau. Since 2005, contractors had been required to use the Census Bureau’s Census 2000 Special EEO File.   Going forward, federal contractors now have new census data to use in the development of their availablility analyses.

Perez Nomination Approved by Senate Committee

On Thursday, May 16, President Obama's nominee to be Secretary of Labor, Thomas Perez, won approval from a divided senate panel.  The Senate Committee on Health, Education, Labor and Pensions voted, 12-10, with all Democratic members of the committee voting in favor and all Republican members voting against.

The nomination now moves to the Senate floor, where Mr. Perez must win final confirmation before assuming the Secretary of Labor post.

(Information for this post was taken in part from various news reports available on the web at sites including Politico and the Washington Post.)

Perez Nomination Delayed Again (Updated)

The Thomas Perez confirmation vote in the senate committee charged with overseeing his nomination has been delayed yet again. Scheduled for a vote on Wednesday, May 8, the nominee for Secretary of Labor will be waiting until at least Thursday, May 16, to see if his nomination moves forward to the full Senate.

In light of the growing animosity between congressional Republicans and the White House over a variety of subjects, including the I.R.S.'s treatment of tea party groups and other conservative organizations, it is unclear what kind of action will be taken on any of the President's nominations, including the Perez nomination.  Mr. Perez's nomination is further complicated by concerns raised by Republicans about his handling of certain issues while at the Department of Justice.

It is also unclear what the continuing absence of a Secretary of Labor may mean to OFCCP.  As we've noted in a previous post, OFCCP may be reluctant to move forward with a number of major initiatives until there is someone leading the Department of Labor who can approve these initiatives.  Among the major initiatives still on the table for OFCCP are the agency's proposed revisions to its regulations regarding veterans and persons and persons with disabilities.  However, the agency was willing to issue a major new directive on compensation even though there was no Secretary of Labor in place.  We will wait to see what happens in the Senate and how OFCCP handles the continuing absence of a Secretary of Labor.

(Information for this post was taken in part from various news reports available on the web at sites including Politico and the Washington Post.)

What Does OFCCP Want?

This article originally appeared in the April 2013 edition of the LocalJobNetwork "OFCCP Digest." 

Much has been written about the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) in the last few years. OFCCP has a number of significant new initiatives, most notably its recent directive regarding the evaluation of compensation data that federal contractors and subcontractors will be asked to provide during compliance reviews. OFCCP has also gone through a number of changes to the manner in which it conducts compliance reviews. For example, the agency was routinely conducting on-site investigations for a while, but OFCCP is now limiting its on-site presence and is instead requesting many additional documents during the course of a compliance review.

While we know a great deal about what OFCCP is doing, a rarely asked question is this: what does OFCCP want? Phrased somewhat differently, what are OFCCP’s expectations of federal contractors and subcontractors? And, what kind of expectations does the federal government in turn have for OFCCP?

OFCCP Scheduling Process Aimed at Larger Organizations?

The most recent release of pre-scheduling notices by OFCCP seems to be following certain patterns that were evident in the pre-scheduling notices sent out by OFCCP in late 2012.  It appears both from experience with our clients and from discussions we've had with others that OFCCP is targeting larger organizations.  These larger organizations are receiving a disproportionate number of pre-scheduling notices.  John Fox of Fox, Wang & Morgan has also reported that OFCCP is disproportionately selecting certain industries for review, including the healthcare and manufacturing sectors.

The fact that OFCCP is targeting certain types of companies and certain industries negates the long-standing idea that OFCCP uses a neutral, unbiased tool to select federal contractors and subcontractors for review.  OFCCP's decision to conduct multiple reviews at the sites of larger federal contractors and subcontractors appears to be part of the agency's desire to conduct corporate-wide reviews of certain companies.  While it is unclear whether OFCCP has the right to conduct such corporate-wide reviews, the agency seems to be making adjustments to its scheduling process that are allowing OFCCP to get a broader picture of what happens in certain larger organizations.

The current tool used to select companies for review, the Federal Contractor Selection System (FCSS), uses data from EEO-1 reports, history of compliance reviews, number of discrimination complaints, and various other factors to help OFCCP determine which companies to review.  Some of the factors used by the FCSS and how these factors are weighted is a closely-guarded secret.  While OFCCP states on its website that the FCSS is a "neutral system," the agency's reviews during federal fiscal year 2013 (which started in October of 2012) appear to be anything but random.

OMB Head Confirmed; Labor Secretary Confirmation on Hold

Confirmation hearings for two people who may have a significant effect on OFCCP went in significantly different directions this week.  While the new head of the Office of Management and Budget (OMB) was confirmed on a unanimous vote of the Senate on Wednesday, April 24, a committee vote on the confirmation of President Obama's nominee to be Secretary of Labor was put on hold until at least May 8.

Sylvia Mathews Burwell was confirmed to head OMB on a 96 to 0 vote in the Senate.  Ms. Burwell previously served as deputy budget director at OMB during the Clinton administration.  Ms. Burwell will have a significant number of items on her plate as she begins her tenure at OMB, including oversight for recent budget proposals by the White House and management of various regulatory initiatives by federal agencies.  Ms. Burwell's selection is important in the OFCCP context because OFCCP has a number of proposed regulations, including its massive proposed changes to the regulations concerning veterans and persons with disabilities, that are awaiting approval by OMB.

More important to OFCCP is the continuing absence of a Secretary of Labor.  Thomas Perez, who is President Obama's choice to fill the role of the departed Hilda Solis, has run into opposition from Republican members of the Senate.  Perez's nomination was supposed to go before the full Senate by the end of April, but instead the Senate's Health, Education, Labor and Pensions Committee scheduled another day of hearings on May 8.  While Perez appears to still have the support of the President, it is not clear when or if his nomination will receive a full vote by the Senate.

The absence of a Secretary of Labor is important in a number of ways to OFCCP.  First, the agency may be reluctant to move forward a number of major initiatives until there is someone leading the Department of Labor who can approve these initiatives.  Second, a new Secretary of Labor, whether it is Thomas Perez or someone else, may have different ideas about where OFCCP should focus its attention.  It is even possible that a new Secretary of Labor may decide that there should be a new leader at OFCCP.

(Information for this post was taken in part from various news reports available on the web at sites like Politico and the Huffington Post.)

Scheduling Letters Associated with Pre-Scheduling Notices Begin to Appear

Well, that didn't take long.

Some of the facilities that received pre-scheduling notices from OFCCP during the first week in April have already received the letter that formally opens an OFCCP review.  While the pre-scheduling notices were supposed to give companies time to prepare for a review, OFCCP appears to be moving forward aggressively with this round of compliance reviews.  (We are even aware of one situation where a company received the letter opening its compliance review BEFORE the company received its pre-scheduling notice.)

This letter that opens a review, referred to as a scheduling letter, and the itemized listing that accompanies the scheduling letter are the same as they've been for some time.  OFCCP's revised scheduling letter and itemized listing that were first published in May of 2011 are still on hold at the Office of Management and Budget.  (You can find a copy of the revised scheduling letter and itemized listing that OFCCP proposes to use on the documents page of our website.)

We expect that companies receiving this round of scheduling letters will be asked to provide extensive compensation data during their compliance reviews.  This round of reviews will be the first under OFCCP's new Directive 307, the directive that instructs OFCCP compliance officers to give expanded attention to the compensation data and practices of federal contractors and subcontractors.  It will be interesting to see how OFCCP implements this directive and what other priorities OFCCP has for federal contractors and subcontractors in this round of reviews.

OFCCP Sends Out Pre-Scheduling Notices

It appears that OFCCP is gearing up for the next set of compliance reviews. We have several clients who have received pre-scheduling notices advising them that they will be undergoing review soon. The pre-scheduling notices we've seen were directed to the specific facility that will be undergoing a review and not to a corporate headquarters location. Federal contractors and subcontractors should be on the lookout for these letters.

This will be an unusual cycle of reviews because of the level of uncertainty at OFCCP over various initiatives (including the proposed veterans and disability regulations) and because of OFCCP's desire to look more extensively into compensation issues.  As noted in a previous post, OFCCP is scheduled to unveil the final version of its revised regulations for veterans and persons with disabilities in April (though we do not believe this is likely to happen).  More importantly, this round of reviews will be the first round under OFCCP's new compensation directive.

It's interesting that OFCCP is sending out pre-scheduling notices to individual facilities.  For several years, OFCCP had issued letters to certain multi-facility employers advising them that one or more facilities would be undergoing an affirmative action compliance review. These letters, called Corporate Scheduling Announcement Letters (CSALs), were generally sent twice a year. While their use had been somewhat unpredictable, CSALs were very helpful to large organizations that could use the CSAL list to plan for compliance reviews.  We'll have to watch to see if OFCCP uses only the single facility pre-scheduling notices during this round of reviews or if there will be traditional CSALs sent to corporate headquarters that provide a list of facilities that will undergo review.

It is worth noting that the current round of pre-scheduling notices, like the CSALs OFCCP had been using, are NOT formal letters opening compliance reviews (i.e. "scheduling letters"). These pre-scheduling notices are just a notification of a likely review. In past years, we've had the following scenarios occur:

• Clients have received a formal scheduling letter within days of receiving a pre-scheduling notice
• Clients have received a formal scheduling letter months after receiving a pre-scheduling notice
• Clients failed to receive a scheduling letter even though they were on a CSAL list suggesting there would be a compliance review

Thus, while the pre-scheduling notice is a useful warning, it doesn't necessarily provide a specific timeline for review.  What the pre-scheduling notice does is put a company on notice that a review is likely to occur.  We encourage any company that receives a pre-scheduling notice to begin preparations for an OFCCP compliance review as soon as possible.  If you need assistance in preparing for a review, please contact us.

When Will We See New Regulations for Veterans and Persons with Disabilities?

In April of 2011, OFCCP released proposed changes to its regulations regarding veterans.  Later that year, in December, OFCCP released proposed changes to its regulations regarding persons with disabilities.  Each set of proposed changes has significant revisions to the current affirmative action regulations for these groups.  OFCCP had hoped to publish these regulations in final form during 2012, but this did not occur.

The Department of Labor (DoL) in its regulatory agenda published in December of 2012 stated that OFCCP's new regulations regarding veterans and persons with disabilities would be released in final form in April of 2013.  We believe that DoL is not going to meet this timeframe.  Among the reasons we believe these regulations will be further delayed are the following:

• The Department of Labor is going to be hesitant to publish extensive new regulations while a new Secretary of Labor is being confirmed and is starting in the position.  Hearings have not yet begun for the Obama administration's nominee for Secretary of Labor, Thomas Perez, and these hearings may be contentious because of positions Mr. Perez took while at the Department of Justice.
• OFCCP already has too many regulatory initiatives on its plate.  Most notably, the agency just released a new directive regarding compensation that will require extensive training for OFCCP compliance officers and extensive oversight from OFCCP officials.
• The Office of Management and Budget (OMB) may have concerns over the costs and burdens that would be imposed under OFCCP's proposed changes to its regulations.  Federal contractors and their representatives have made it very clear to OMB that OFCCP grossly underestimated the cost both in terms of dollars and time that would be required to implement the proposed changes.

At this point, any guess on when revised regulations regarding veterans and persons with disabilities will appear is simply speculation.  Revised regulations may appear later in the year, sometime in 2014, or never.  Even if revised regulations do appear, they may take a significantly different form than the regulations proposed by OFCCP in 2011.

The proposed regulations and the DoL's December 2012 regulatory agenda can be found on the documents page on our website.  Our thoughts on the proposed regulations can also be found on our website as part of our "older news" page.

Thoughts on OFCCP's New Compensation Directive

We’ve now had some time to digest the compensation directive that OFCCP released on February 28, 2013. We’re going to use this blog post to provide some background and analysis regarding the new directive.

Background

On February 28, OFCCP released its Directive 307, entitled “Procedures for Reviewing Contractor Compensation Systems and Practices.” At the same time, OFCCP finalized the rescission of the compensation guidelines that had been issued in 2006. (All of these documents are available on our website at http://www.hranalytical.com/documents.html.) OFCCP decided to rescind its previous compensation guidelines and introduce Directive 307 in order to give itself additional flexibility to assess compensation issues. Under Directive 307, OFCCP compliance officers are instructed to give scrutiny to any potential disparities in employee pay. The directive makes it clear that there is no single way that compliance officers are required to investigate possible compensation discrimination. This is a departure from OFCCP’s previous compensation guidelines, which suggested that the agency and federal contractors should use multiple regression analyses and other statistical tools to identify compensation disparities.

Contractors Likely to Be Required to Use New EEO Census Data Starting in January 2014

While OFCCP has so far issued no formal announcement, agency representatives have begun to suggest that federal contractors and subcontractors will be required to use the new EEO census data now available from the Census Bureau in affirmative action plans completed after December of 2013.  This new EEO data will take the place of the 2000 census data that has been used in affirmative action plans for the last ten years.

The new EEO data is significantly different from the 2000 EEO data in a number of ways. Following the 2000 census survey, the Census Bureau released an EEO file that contained demographic data by race, ethnicity, and gender on the jobs held by American workers. The EEO data released in January of 2013 also contains demographic data by race, ethnicity, and gender on jobs. However, the new EEO data is NOT based on the 2010 census survey.  Instead, it is a composite of surveys conducted as part of the on-going American Community Survey (ACS). The ACS is a survey conducted every year that samples a certain percentage of the population about a variety of factors including education, employment, income, language, and race.

Another change from the past involves the manner in which the EEO data has been made available to the public.  Data from the 2000 census were made available on the web with a data tool to help users easily access information for various geographical areas and populations. The new EEO data is available on the web and there is extensive additional information beyond that provided with the 2000 census files. However, there is no data tool similar to that made available for the 2000 EEO data. While the new EEO data is also available for download from an FTP site, the FTP site will typically be used by organizations that have extensive experience using database tools to manipulate very large data files. The files available from the FTP site cannot be read by common business applications such as Excel.

As we noted in a previous blog post, federal contractors and subcontractors attempting to use the new EEO data themselves may experience a number of logistical and other problems.  OFCCP may have recognized the issues concerning the new EEO data by moving the target date for using this new EEO data to January of 2014.

Obama Administration Announces Nominee for Secretary of Labor

On March 18, 2013, the Obama administration announced that Thomas Perez will be nominated for the vacant Secretary of Labor post.  Mr. Perez is currently the head of the Civil Rights Division at the Justice Department.  If confirmed, he will replace Hilda Solis, who left the Department of Labor in January of 2013.

Mr. Perez must go through a confirmation process in the Senate before assuming the Secretary of Labor position.  Various news reports suggest that there may be opposition to his nomination because of his strong positions on a number of civil rights issues while at the Department of Justice.  Mr. Perez has pursued various discrimination actions throughout his career, first as a federal prosector and later as a leader in the civil rights sections of several different cabinet level departments.

There is currently no timing on when Mr. Perez's confirmation hearings will take place.  It is also currently unknown how Mr. Perez's appointment will affect various agencies within the Department of Labor (DoL) such as the Office of Federal Contract Compliance Programs (OFCCP).  OFCCP head Patricia Shiu has made no announcements concerning her future plans, but her continuing tenure in the agency will depend in part on decisions the new Secretary of Labor makes about the direction of OFCCP and other DoL agencies. 

EEOC Publishes Notice of Intent to Survey Applicants Interested in Federal Jobs for Disability Status

On February 15, 2013, the Equal Employment Opportunity Commission (EEOC) published a notice of its intent to change the survey form used to collect demographic information from persons expressing interest in positions with the federal government.  The form would be revised to include questions concerning disabilities that applicants may have.  Currently, the form only includes questions concerning gender, ethnicity, and race.

The proposed revisions to the survey form do NOT affect federal contractors or other private sector employers.  Instead, these proposed revisions are meant to help the federal government determine whether it is meeting its objectives in regard to hiring persons with disabilities for positions with the federal government.  The proposed revisions to the survey form do not simply ask whether an individual is a person with a disability, but instead ask specific questions about particular types of disabilities as well as questions concerning particular conditions an applicant may have.

While the proposed revisions to the survey form do not apply to private sector employers, these revisions are consistent with the federal government's desire to provide greater access to employment for persons with disabilities.  The requirement to survey applicants for disability status is one part of the proposed regulations issued by the Office of Federal Contract Compliance Programs (OFCCP) in December of 2011.  These proposed regulations have not been finalized by OFCCP, and concerns have been raised about a number of the changes found in the proposed regulations including this requirement to survey applicants concerning disability.  EEOC currently suggests that no disability survey should be conducted for applicants until the post-offer stage of the employment process.  It is possible that the proposed survey released on February 15 is an indication that EEOC may be changing its position in this regard.

The EEOC's notice can be found at the federal government's website showing all proposed regulations or at the Federal Register website.  OFCCP's proposed revisions to its regulations regarding disability can be found on the documents page of the HR Analytical Services website.

OFCCP Rescinds Compensation Guidance and Issues New Compensation Directive

OFCCP's website indicates that the agency will be formally rescinding its 2006 compensation guidance as of February 28, 2013. In its place, OFCCP will issue a new directive that is also effective as of February 28.

The new directive appears to make substantial changes to the approaches found in the 2006 compensation guidance, and reinforces the idea that compensation discrimination is a top priority for OFCCP.

To read the notice rescinding the 2006 compensation guidance, the new compensation directive, and other information regarding OFCCP's actions, see OFCCP's website at http://www.dol.gov/ofccp/regs/compliance/CompGuidance/.

We'll have more information about this in the coming days as we have a chance to digest the new directive and other information from OFCCP.

Limiting the Applicant Data That Is Provided to OFCCP (Part 2)

This article originally appeared in the February 2013 edition of the LocalJobNetwork "OFCCP Digest." It is the second of a two-part series.

Part 2 - Understanding Special Situations

In the first part of this two-part series, we discussed the fact that the applicant data that is provided to the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) is a critical piece of information in any affirmative action compliance review. We found that OFCCP’s Internet Applicant rule provides a variety of ways to limit the applicant data that is submitted to OFCCP. We also identified a key idea in regard to the way that OFCCP examines applicant data:

OFCCP is interested in comparing data on the persons who could be hired for a company’s positions to the persons who actually were hired.

In this article, we’re going to examine a number of important situations that affect the applicant data that should be submitted to OFCCP. Before we continue, though, here’s a short review of how the Internet Applicant rule works. The Internet Applicant rule provides a four-prong test to determine which job seekers should be counted as applicants and should thus appear in statistical reports provided to OFCCP. These four prongs are:

1. The individual submits an expression of interest in employment through the Internet or related electronic data technologies;
2. The contractor considers the individual for employment in a particular position;
3. The individual’s expression of interest indicates the individual possesses the basic qualifications for the position; and,
4. The individual at no point in the contractor’s selection process prior to receiving an offer of employment from the contractor, removes himself or herself from further consideration or otherwise indicates that he or she is no longer interested in the position.

The Difference Between Recruitment and Selection

In part 1 of this series, we noted that OFCCP is currently very interested in the outreach efforts that companies are making to find qualified minorities, females, veterans, and persons with disabilities. While OFCCP showed little interest in recruitment for a significant number of years, OFCCP now examines recruitment efforts very closely during compliance reviews, especially as they pertain to veterans and persons with disabilities.

Thoughts on OFCCP Discussion on "The New Census EEO Tab"

On Wednesday, February 6, the U.S. Department of Labor's Office of Federal Contract Compliance Programs held a discussion regarding the new EEO data now available from the Census Bureau.  This discussion was entitled "New Census EEO Tab Discussion."  This session was held as an invitation by OFCCP to have federal contractors and their representatives comment on the new EEO data that will be used in affirmative action plans.

It seemed clear from the OFCCP portion of this discussion that the agency has had limited experience with the new EEO data.  The agency's representatives did not seem to be aware of the significant number of differences the new EEO data has with the EEO data made available from the 2000 census.  A number of HR practitioners and consultants (including the writer of this article) tried to clarify for OFCCP some of the contractor community's concerns about the new EEO data.  (The new EEO data and information about this data can be found at http://www.census.gov/people/eeotabulation/.)

It should be noted that the new EEO data is, in fact, not an abstract from the 2010 census per se.  Unlike the data in the 1990 and 2000 EEO files, the new EEO data that has recently been made available is a compilation from 2006 through 2010 American Community Survey (ACS) data.

Where Do We Stand?

The current picture in regard to what’s happening at OFCCP seems to grow murkier all the time.　During 2012, we noticed multiple changes in approach and behavior from the agency.　We also noticed multiple changes in emphasis during affirmative action compliance reviews.　We’d like to use this article to share what we believe is happening at OFCCP, and provide you with an update on the status of several of the agency’s major initiatives.

During 2011, OFCCP released a number of proposals that would have fundamentally changed the agency’s expectations for federal contractors and subcontractors.　These proposals included the following:

Proposed Revisions to Regulations Regarding Veterans - OFCCP has proposed a number of dramatic changes to their regulations regarding veterans.　 Among these proposed changes are requirements to:

• survey applicants for veteran status
• establish "linkage agreements" with multiple veterans recruitment sources
• establish some form of placement goals for veterans, and
• collect five (5) years of data regarding the recruitment of veterans.　

Limiting the Applicant Data That Is Provided to OFCCP

This article originally appeared in the January 2013 edition of the LocalJobNetwork "OFCCP Digest."  It is the first of a two part series.

Part 1 - The Rule Regarding Applicant Data

Most of the recent discussion about affirmative action compliance reviews by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) tends to focus on two areas: (1) OFCCP’s investigation of possible compensation discrimination by federal contractors and subcontractors, and (2) issues concerning veterans and persons with disabilities, especially in regard to outreach to find members of these two groups.  There is no question that these two areas have been priorities for OFCCP.  Yet, the majority of the back pay settlements growing out of affirmative action compliance reviews still involve hiring disparities, especially in entry-level positions.  A quick look at OFCCP’s website (http://www.dol.gov/ofccp) as of mid-January in 2013 substantiates this.  Three recent press releases reported on OFCCP’s website show that companies paid between $300,000 and $439,000 to groups of minorities or females applying for entry-level jobs, and there are no recent press releases concerning compensation settlements or problems involving veterans and persons with disabilities.