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.
Thursday, May 23, 2013
Wednesday, May 22, 2013
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.
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.
Friday, May 17, 2013
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.
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.
Thursday, May 16, 2013
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.)
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.)
Wednesday, May 8, 2013
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.)
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.)
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