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.