Dealing with the Chaos at OFCCP

This article originally appeared in the July 2014 edition of the LocalJobNetwork "OFCCP Digest."

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs is a busy place. The agency has announced a multitude of priorities that affect federal contractors and subcontractors. Among these priorities are the following:

• Issues concerning veterans
• Issues concerning individuals with disabilities
• Compensation
• Use of criminal records in the selection process

There were new regulations or directives issued on each of these subjects during 2013.

President Obama Signs Executive Order Incorporating Protections Against Discrimination Based on Sexual Orientation or Gender Identity into Executive Order 11246

On Monday, July 21, President Obama signed an executive order that makes changes to Executive Order 11246. Executive Order 11246 is the executive order that prohibits discrimination by federal contractors or subcontractors against applicants and employees based on race, color, religion, sex, or national origin. Executive Order 11246 is also the executive order that provides the basis for the federal regulations requiring that federal contractors and subcontractors take affirmative action to recruit, employ, promote, and retain minorities and females.

The executive order signed by President Obama on Monday incorporates protections for applicants and employees based on sexual orientation and gender identity. The White House decided to amend Executive Order 11246 to protect members of the lesbian, gay, bisexual, and transgender (LGBT) community after the United States Congress failed to take action on a law to provide broader protections for members of these groups. While certain states and municipalities have protections for members of the LGBT community, there were no non-discrimination provisions for these groups in federal law.

The executive order signed by the President instructs the Secretary of Labor to prepare regulations that will implement the amendments to Executive Order 11246. The non-discrimination provisions of the new executive order will apply to contracts entered into on or after the effective date of the rules promulgated by the Department of Labor. Thus, there are no specific actions federal contractors and subcontractors currently need to take to deal with these revisions. However, companies should monitor the federal rule-making process to determine when new rules about sexual orientation and gender identity become effective.

Along with changes to Executive Order 11246, the executive order signed on Monday makes changes to Executive Order 11478, which prohibits discrimination against federal employees on the basis of race, color, religion, sex, national origin, disability, or age. Executive Order 11478 was revised in 1998 to prohibit discrimination against federal employees based on sexual orientation. This executive order does not affect federal contractors or subcontractors or other private sector employers. The executive order signed on Monday is available at http://www.whitehouse.gov/the-press-office/2014/07/21/executive-order-further-amendments-executive-order-11478-equal-employmen. A fact sheet discussing the executive order and the reasons for the revisions to Executive Order 11246 is available at http://www.whitehouse.gov/the-press-office/2014/07/21/fact-sheet-taking-action-support-lgbt-workplace-equality-good-business-0.

Filing Period for VETS-100A Report to Begin on August 1; VETS Releases Information on Previous Filers

The filing for the VETS-100A report is scheduled to begin on August 1 and end on September 30.  The Department of Labor’s Veterans Employment and Training Service (VETS) has frequently experienced problems with the system used to file the VETS-100A report, and thus there is no guarantee as to when the reporting period for 2014 will open or close.  In light of OFCCP’s expanded interest in issues concerning veterans, it will be important for federal contractors and subcontractors to properly file the VETS-100A report this year.  One of the mistakes that some companies continue to make is to file the VETS-100 report rather than the VETS-100A report.  The VETS-100 report uses veteran categories found in older versions of the federal regulations for veterans.  It would be difficult to find a company that continues to be covered by these older regulations, and thus any company that has filed a VETS-100 report in the past should file a VETS-100A report this year.  The site to file the VETS-100A report can be found at http://www.dol.gov/vets/vets-100.html.

Something new this year on the VETS site is a file that contains information on all companies that filed the VETS-100 or VETS-100A report during 2013.  That file can be found as a link under the heading "Filing Information".  It is interesting to note that it appears a surprisingly large number of companies still file the VETS-100 report rather than the VETS-100A report.

New Round of Pre-Scheduling Notices Being Sent to Federal Contractors and Subcontractors

OFCCP is currently sending out pre-scheduling notices to inform companies that a facility may be the subject of an up-coming affirmative action compliance review.  These letters are dated July 16, 2014.  As has been the case during the past few years, OFCCP is sending these letters to individual locations that may be the subject of a review.  Both single-facility organizations and multi-facility organizations may receive a pre-scheduling notice.  When these types of letters were first used by OFCCP in 2007, they were called Corporate Scheduling Announcement Letters (CSALs) and were sent to the corporate headquarters for organizations that had been scheduled for more than one compliance review that year.  Now, there is no specific correspondence sent to a corporate headquarters unless the corporate headquarters itself is the subject of a review.

The current round of pre-scheduling notices are slightly different than the last set of pre-scheduling notices sent by OFCCP in February or March of 2014 in that the current set of notices includes a reference to the corporate parent for the facility receiving the letter.  This is true even if there are no other facilities for that company (in which case the name of the facility receiving the letter will be the same as the name of the corporate parent).  It appears that OFCCP is deriving the name of the corporate parent from EEO-1 reports
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It is important to note that a pre-scheduling notice does NOT formally open a compliance review.  The pre-scheduling notice is simply an informational letter notifying a facility that OFCCP expects to conduct a compliance review there.  The formal scheduling letter that opens a compliance review may be sent at any time following the receipt of the pre-scheduling notice.  (In fact, we are aware of several instances during 2013 where a company received a scheduling letter and then subsequently received a pre-scheduling notice.) While most facilities that receive a pre-scheduling notice will ultimately receive a scheduling letter and will begin a compliance review, it is possible that there will be facilities receiving a pre-scheduling notice that do not receive a scheduling letter.  However, all companies receiving a pre-scheduling notice should assume that a compliance review will be occurring soon and should plan accordingly.

More information on OFCCP’s use of CSALs can be found on the agency’s website at http://www.dol.gov/ofccp/regs/compliance/faqs/csalfaqs.htm.

Filing Period Open for EEO-1 Report

As of July 1, companies have been allowed to file their EEO-1 reports for 2014.  The filing period remains open until September 30.  EEO-1 reports can be important, as a number of federal agencies, including OFCCP and EEOC, examine EEO-1 reports when they conduct investigations, and private citizens can ask for EEO-1 data as part of a Freedom of Information Act request.  OFCCP also uses EEO-1 reports as one factor in determining which companies and facilities it will target for affirmative action reviews.  Thus, you should carefully consider how employees are reported.  For example, if your company has a number of small facilities that have typically been rolled up into one location on the EEO-1 report, you should consider reporting these employees in their separate facilities.  While OFCCP has the right to review any of a federal contractor’s facilities, it is rare for the agency to conduct a full compliance review at a facility of less than 50 people.