OFCCP Announces 2013 Agenda

On December 21, 2012, the Office of Federal Contracts Compliance Programs ("OFCCP") published its 2013 regulatory goals in the Unified Agenda of Regulatory and Deregulatory Actions ("Unified Agenda"), as required by Executive Order. The Unified Agenda signals that OFCCP intends to aggressively implement new rules and regulations affecting federal contractors and subcontractors in the upcoming year. These rules and regulations are expected to comport with OFCCP's goals as outlined in its Fiscal Year 2013 Congressional Budget Justification and its Notices of Proposed Rulemaking ("NPRM") for veterans and individuals with disabilities, which were issued in April and December of 2011, respectively. For more information regarding Section 503 of the NPRM, see our client alert of January 18, 2012 OFCCP Notice of Proposed Rulemaking.

Contractors and Subcontractors should expect OFCCP regulatory action to include the following:

1. Implementation of final rules for individuals with disabilities and covered veterans, including:
   1. Increased enforcement with respect to hiring, worker retention and data collection
   2. Increased desk audits, on-site activity, and increased focus on Section 503 and VEVRAA
2. Implementation of new pay equity data collection tools
3. Focus on the construction industry
4. Implementation of "Good Jobs for Everyone"
   1. OFCCP will place greater emphasis on "meaningful and effective" affirmative action evaluations
5. New Functional Affirmative Action Program ("FAAP") directive
   1. Permits contractors to develop Affirmative Action Plans ("AAP") based on business function or business unit rather than contractor establishments
   2. Contractors are not eligible for FAAP renewal unless two functional units have passed compliance evaluations during the agreement's three-year term
6. Executive Order 13495—Nondisplacement of Qualified Workers Under Service Contracts
   1. New requirement to offer jobs to predecessor contractor's workers
   2. Effective January 18, 2013

I. Final Rules and Regulations for Veterans and Individuals with Disabilities

OFCCP plans to finalize regulations concerning protected veterans and individuals with disabilities in April of 2013.

Veterans

Final VEVRAA regulations are scheduled for release in April of this year. The regulations are expected to require that "contractors and subcontractors conduct more substantive analyses of recruitment and placement actions taken under VEVRAA and . . . require the use of benchmarks to measure the effectiveness of affirmative action efforts. The rule would also make revisions to recordkeeping requirements."

A copy of the Notice of Proposed Rulemaking can be found here.

OFCCP will require contractors to list job vacancies and contact information for each of their locations with appropriate employment delivery systems, engage in at least three specified types of outreach and recruitment efforts each year, provide applicants with a pre-offer invitation to self-identify as "protected veterans," and increase data collection requirements for job referrals, applicants and hires.

Individuals with Disabilities

Final Section 503 rules are expected to require that contractors annually review recruitment effort effectiveness, enter into at least three linkage agreements, and provide employees with invitations to self-identify as persons with disabilities. The new rules will also broaden the definition of "disability," include new job posting requirements, establish a 7% National Utilization Goal, impose written reasonable accommodation procedures, increase data collection requirements, and revise compliance procedures.

A copy of the Notice of Proposed Rulemaking can be found here.

These new VEVRAA and Section 503 regulations will impose substantial administrative burdens on contractors and warrant in-depth review of current AAPs and employment policies to ensure compliance.

II. Pay Equity

Increased Data Collection

Pay equity featured prominently in the 2012 presidential election, and that issue promises to remain an Obama administration priority. In conformity with this objective, OFCCP plans to develop a compensation data collection tool to analyze pay disparities. This policy, however, has drawn harsh criticism. The EEOC commissioned the NAS, at the request of the White House, to review proposed methods for measuring and collecting compensation data. Their report concluded, in part, that OFCCP should not move forward with the increased data collection requirements because OFCCP failed to adequately articulate its vision of how the agency would utilize collected wage data or to measure the benefits of increased data collection against the burdens and costs to contractors.
Despite NAS recommendations, OFCCP listed June 2013 as its target date to issue a NPRM concerning the data collection tool. OFCCP has not indicated whether or how the agency plans to address any of the NAS concerns during the interim, but contractors should prepare for increased data collection obligations.

III. Focus on the Construction Industry

OFCCP intends to issue a NPRM with revised regulations governing federal and federally assisted construction contractors and subcontractors by October of 2013. Proposed rules would update "timetables for the utilization of minorities and women based on appropriate workforce, demographic or other relevant data." In addition, proposed rules would require "strengthen[ed] affirmative action programs particularly in the areas of recruitment, training, and apprenticeships."

Amendments to the Sex Discrimination Guidelines

According to the Department of Labor's Fall 2012 Statement of Regulatory Priorities, "Sex Discrimination Guidelines, found at 41 CFR Part 60-20, have not been updated in more than 30 years[.]" OFCCP intends to issue a NPRM in August of 2013 setting forth contractors' obligations not to discriminate on the basis of sex under Executive Order 11246 . . . and Title VII of the Civil Rights Act of 1964," as amended. Construction contractors should note that OFCCP has specifically stated that "[t]he nondiscrimination requirement of Sex Discrimination Guidelines . . . applies to contractors and subcontractors performing under federally assisted construction contracts." With sex discrimination in the construction industry soon to become an OFCCP priority, construction contractors should prepare for additional scrutiny.

IV. "Good Jobs for Everyone"

In its FY 2013 Budget Justification, OFCCP noted that "the agency's enforcement activities focused primarily on hiring discrimination." The agency now plans to "plac[e] greater emphasis on meaningful and effective affirmative action evaluations." In addition, OFCCP will "step[] up its enforcement of equal employment opportunity for individuals with disabilities and covered veterans with respect to hiring, worker retention, and data collection." Contractors should anticipate increased enforcement activities in all aspects of affirmative action.

V. New Functional Affirmative Action Program ("FAAP") Directive

OFCCP recently implemented Directive No. 305, effective December 17, 2012 through December 31, 2015. Directive 305 lifts a moratorium on the issuance and renewal of FAAP agreements that had been in effect since February of 2010. FAAP agreements permit contractors to develop affirmative action plans based on business function or business unit rather than contractor establishment. But despite the potential benefits of establishing affirmative action plans based on business function or unit, contractors are not eligible for FAAP renewal unless two business functions or units have passed compliance evaluations during the agreement's three-year term. Contractors should consult an attorney before determining whether a FAAP or traditional establishment-based Affirmative Action Plan is more appropriate for their businesses.

VI. Executive Order 13495—Nondisplacement of Qualified Workers Under Service Contracts

On January 30, 2009, President Obama signed Executive Order 13495, which requires federal contractors and subcontractors that enter into contracts that succeed contracts for performance of the same or similar services at the same location to offer non-managerial and non-supervisory employees who were employed under the predecessor contractor a right of first refusal of employment. According to Department of Labor Regulations, the succeeding employers are not permitted to deny employment to such predecessor employees without "written credible information provided by a knowledgeable source" such as "department or agency officials responsible for monitoring performance under the contract." The EO is effective as of January 18, 2013, when both the United States Department of Labor and Federal Acquisition Regulatory Council final rules went into effect.

Source: Lexology

This information is intended to be educational and should not be considered legal advice on any specific matter.

Census Bureau Live Stream of New Data Access Tools

The U.S. Census Bureau will hold an online demonstration of new data access tools online on the Census Bureau Ustream channel. The demo will include new and enhanced features in American FactFinder, such as Community Facts and Guided Search. The presentation will also include other new data access tools developed from the Census Bureau's application programming interface and the "America's Economy" mobile app.

Viewers will be able to ask questions, either by phone or on the Census Bureau's Facebook and Twitter accounts.

 

When:

Thursday, Jan. 31, 2013; 2 p.m. (EST)

 

Who:

Rob Chestnut, chief, Requirements and Stakeholder Relations Branch,
Decennial Systems Contract Management Office
Alexandra Figueroa, deputy branch chief, Web and Social Media Branch
Center for New Media and Promotions

 

Details:

 

To view the presentation online:http://www.ustream.tv/uscensusbureau

Viewers watching the news conference online may ask questions by dialing in using the information below or by tweeting questions @uscensusbureau Twitter or posting on the Census Bureau Facebook wall (http://www.facebook.com/uscensusbureau).

Dial-in number: 1-800-857-4620
Participant passcode: CENSUS

Note: Stay on the line until operator asks for the passcode. Do not key in passcode. Please dial in early.

Source: U.S. Census Bureau
 

This information is intended to be educational and should not be considered legal advice on any specific matter.

Compensation Data Collection Tool

For something that is not yet even a Proposed Rule, the “Compensation Data Collection Tool” in the early drafting stages at the Department of Labor’s Office of Federal Contract Compliance Programs is generating a fair share of noise on the Internet. The most recent DOL Uniform Agenda shows June 2013 as the action date for release of a Proposed Rule around the Compensation Data Collection Tool, and has labeled it a “significant priority.”

 

It has taken more than two years for the OFCCP to get this far on the Compensation Data Collection Tool. It may take another two years or longer to reach a final rule. And there may be a grace period before it becomes effective.

So why all the chatter?

Compensation discrimination is one form of discrimination that is already prohibited by Executive Order 11246. That’s not news.

What is news is that OFCCP is once again trying to develop a tool “…to provide insight into potential problems of pay discrimination by contractors that warrant further review or evaluation by OFCCP or contractor self-audit.”

Executive Order 11246 was signed by former President Lyndon B. Johnson on September 24, 1965, applicable to federal contractors above a certain annual contract value, to prevent discrimination and take affirmative action in employment and compensation on the basis of race, color, religion, gender, or ethnicity.

The most recent OFCCP data collection and analysis aimed at federal contractors took place in two stages from 2000 to 2005. Equal Opportunity Surveys were sent out and the collected data analyzed. But, the EO Survey was rescinded in 2006.

Then, in 2011, OFCCP issued a Request for Comments about “…the possible design of its new data collection tool,” the Federal Register posting described 15 categories of data or information that might be collected by OFCCP. The Request for Comments lists the potential uses of the data as

— conduct analysis
— identify and analyze industry trends, practices, and issues
— develop indicators for identifying potential noncompliance by contractors

You can find the Federal Register posting in Volume 76, at pages 49398 to 49901.

When you read through the 15 categories of data listed by OFCCP, you quickly see that for an individual employee these are the same compensation decisions and data an employer routinely makes. For any employee, the contractor knows the starting salary or hourly rate, any shift differential, possible commissions, how many paid holidays, paid sick or personal days, and more. At the individual employee level, it looks likely no additional work would be involved beyond the transposition of information already known to and recorded by the employer.

What could require additional work are some of the ideas within the 15 categories of data such as computing averages and matching jobs to one of the standard job classification schemes (e.g,. the Occupational Classification Codes), and company policies relating to wages and benefits. Even so, the data collection is likely to be in an electronic form, and could easily function like any other computer program, simply taking the individual data entered and automatically converting it into the desired aggregate data.

As with any compliance rule or regulation, the Compensation Data Collection Tool would present an opportunity for contractors to learn more about their own companies. When a contractor goes through data capture and analysis, it can dispel misimpressions that were holding back a company from reaching its full potential through diversity and equality in its workforce.

Source: HR Unlimited, Inc.

This information is intended to be educational and should not be considered legal advice on any specific matter.

Panel Conclusions on Collection of Compensation Data

Source:  Collecting Compensation Data from Employers (2012) by Committee on National Statistics (CNSTAT) of the National Research Council

Currently available in prepublication status, the book Collecting Compensation Data from Employers (2012), by the Committee of National Statistics (CNSTAT), draws conclusions on how collected wage data could be used in the conduct of enforcement responsibilities of certain agencies (i.e. EEOC, OFCCP). The review incorporated presentations by the EEOC, OFCCP, and DOJ as well as informational documents that included the Compensation Data Collection Tool ANPRM from the OFCCP.

The conclusion of the panel, which is detailed in, Collecting Compensation Data from Employers (2012) is that the collection of earnings data would be a significant undertaking for the EEOC and that there might be an increased reporting burden on some employers. The panel also concluded that, currently, there is no clearly articulated vision of how the data on wages could be used in the conduct of the enforcement responsibilities of the relevant agencies. Collecting Compensation Data from Employers also gives recommendations for targeting employers for investigation regarding their compliance with antidiscrimination laws.

CNSTAT is an independent and objective resource for evaluating and improving the work of the highly decentralized U.S. federal statistical system. It undertakes studies from a broad range of statistical, research, and program agencies of the federal government. Committee members and staff are generally statisticians, economists, and other quantitative social scientists with special interests in applications across many scientific disciplines and issues of public policy. Study panel members typically represent a broad range of scientific disciplines relevant to the topic of study.

This information is intended to be educational and should not be considered legal advice on any specific matter.

 

 

Are You Keeping Up With the Proposed Regulatory Changes?

Take our Quiz

 (answers below)

True or False? 

Proposed changes to the OFCCP Compliance Evaluation Scheduling Letter and Itemized Listing:

1.       The comment period for the proposed changes to the Scheduling Letter and Itemized Listing is closed. 

2.        Item 12 of the proposed itemized listing will require submission of more precise compensation data.

Notification of Employee Rights under the National Labor Relations Act

3.        All private sector employers, subject to the National Labor Relations Act (NLRA), are required to post notices informing their employees of their rights as employees under the NLRA as of November 14, 2011.

OFCCP proposed rule: Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Protected Veterans

4.        The proposed rule will require contractors to maintain referral, applicant and hire data for protected veterans as well as job opening / job fill data for a period of five years.

Answers

 

1.        FALSE –The OFCCP comment period has closed, however The Office of Management and Budget is now requesting comments with regard to the OFCCP request for changes.  The OMB comment period closes 10/28. 

2.        TRUE - The more precise data is individual employee data rather than the aggregate data requested in the current Scheduling Letter.  Additionally, the data will be required “as it existed on the most recent February 1st date”.

3.        FALSE - A Federal contractor will be regarded as complying with the Board’s notice posting rule if it posts the Department of Labor’s “Notice of Employee Rights”.  Additionally the National Labor Relations Board has extended the date from November 14 to January 31, 2012

4.        TRUE – The proposed regulation requires that contractors maintain several quantitative measurements and comparisons (including calculated ratios).  The OFCCP believes that these measurements will provide “important information that does not currently exist” with regard to the number of protected veterans who are referred to or apply for jobs with Federal Contractors.

For information on the affirmative action compliance services offered by THOMAS HOUSTON associates, inc., call 1-800-330-9000 or click here to schedule a convenient time to receive a call from one of our Affirmative Action Consultants. 

OFCCP COMMENT PERIOD CLOSING - COMMENTS DUE BY 10/11/11

Advance Notice of Proposed Rule Making (ANPRM):

Non-Discrimination in Compensation; Compensation Data Collection Tool

The opportunity for input on the advance notice of this important rule proposed by the OFCCP is NOW! On August 10th, the OFCCP posted an Advance Notice of Proposed Rulemaking for the development of a "Compensation Data Collection Tool" that is intended to foster the priority issue of the OFCCP to "eliminate compensation discrimination by Federal Contractors".

There have been 836 comments posted as of 10/4/2011. Seven of these comments were posted August 15 through August 31, and are somewhat non-supportive of the development of the tool. Beginning on September 23rd, there were 829 postings that appear to be overwhelmingly supportive. All comments support non-discrimination in compensation, while few seem to address the nature of data that would be most useful for analysis.

To review the docket on the proposed rule, review comments already submitted, and/or submit a comment click here.

Some questions to ask when considering your comments:

Is this another version of the EO Survey?

A copy of the EO Survey is included in the docket folder for this ANPRM as a piece of Supporting and Related Material. Additionally, the supplementary information portion of the ANPRM reviews the history of the EO Survey which was designed, in part, to be a tool "to predict non-compliance and to promote contractor self evaluation". Ultimately, "it was concluded that the EO Survey had little predictive value as a tool for indicating discrimination or non-compliance". OFCCP rescinded the EO Survey in 2006. The EO Survey had the objectives of improving resource allocation by the Federal government through a tiered review process and improving compliance with equal employment opportunity requirements through self-awareness and self-evaluation. The
"Compensation Data Collection Tool's" goals are more broad and far-reaching.

The stated purposes under consideration for the "Compensation Data Collection Tool" are:

• Screeening Tool: "to provide insight into potential problems of pay discrimination by contractors that warrant further review or evaluation by OFCCP or contractor self-audit."
• Research: "to conduct analysis at the establishment level, as well as identify and analyze industry trends Federal contractors' compensation practices and potential equal employment-related issues."
• Compensation Only Reviews: "to develop indicators for identifying potential noncompliance by contractors and executing OFCCP's authority related to compensation discrimination." "The data collected through this tool may be used to identify contractors for compensation focused reviews as well as full compliance reviews."
• New Contractors and Targeting Tool: "requiring businesses that are bidding on future contracts to submit compensation data as part of the Request for Proposal process ... [and] for post-award compliance reviews."

Is it possible to design a tool that will effectively evaluate all compensation practices for all Federal contractors in all industries for all types of positions?

The OFCCP ANPRM on the "Compensation Data Collection Tool" asks for detailed responses from contractors to 15 questions in order to assist in the design of the tool, for instance:

• Question 1 asks what data should be collected to identify potential discrimination and offers a non-exhaustive list of data categories for consideration
• Question 3 asks which elements of compensation should be collected and offers a list well beyond the traditional OFCCP analysis of base pay, but includes stock options, benefits packages, commissions, and bonus awards - extremely confidential data. Our human talent is our greatest resource, and these are some of the tools employers utilize to attract and retain that talent
• Also included are questions to develop a method for understanding Federal Contractors company-wide compensation practices.

Is an additional data collection tool necessary? Who will have access to the database and the information contained therein? How will the confidentiality of the data be protected?

The current compliance methods employed by the OFCCP have resulted, as cited by Director Shiu at the National ILG Convention, in almost $25 million in back wages and interest paid to victims under the Obama administration. Perhaps continued diligent compliance enforcement coupled with greater outreach and education will continue to yield positive results for victims and increase the awareness of the necessity of compliance.

For information on proactive compensation evaluations or other Affirmative Action Plan processing services offered by THOMAS HOUSTON associates, inc., call 1-800-330-9000 or click here to schedule a convenient time to receive a call from one of our Affirmative Action Compliance Consultants.

OFCCP Hosts Compensation Data Collection Tool Listening Session - TODAY

 Today from 3:30 p.m. – 4:30 p.m. (Eastern Standard Time)
Dial 1-800-857-9452 and enter passcode 6646661

On August 10, 2011, OFCCP published an Advance Notice of Proposed Rulemaking (ANPRM) on a proposed new compensation data collection tool.   Stated possible uses for the collected data include generating insight into potential problems of compensation discrimination by federal contractors and subcontractors that warrant further review or evaluation by OFCCP or a contractor self-audit. 

This listening session is an opportunity to offer suggestions and recommendations related to the scope, content and format of the data collection tool.

Public comments on the ANPRM are accepted through October 11, 2011 and can be submitted on regulations.gov or by mail/courier to OFCCP. 

To participate in this web chat session, please dial 1-800-857-9452 and enter passcode 6646661. 

Compensation Data Collection Tool

That, which we call an OFCCP screening tool, by any other name, is still an OFCCP screening tool.

The supplemental information included with the Advance Notice of Proposed Rulemaking (ANPRM) for the Compensation Data Collection Tool reviews the history of the EO Survey which was designed, in part, to be a tool to predict non-compliance and to promote contractor self evaluation. Ultimately, “it was concluded that the EO Survey had little predictive value as a tool for indicating discrimination or non-compliance”. OFCCP rescinded the EO Survey in 2006.

Now comes the Compensation Data Collection Tool the stated purpose for which is “to provide insight into potential problems of pay discrimination by contractors that warrant further review or evaluation by OFCCP or contractor self-audit. Accordingly, it is envisioned primarily as a screening tool."

The ANPRM request for comments, closing on 10/11/2011, presents 15 questions for response by contractors which give some insight to the intended direction of the screening tool.  Some examples: 

“OFCCP is exploring the possibility of using the data collected through the tool to identify opportunities for nationwide multi-establishment compensation reviews”

 “The data collected through the tool may be used to identify contractors in specific industries for industry-focused compensation reviews. What specific categories of data would be most useful for identifying contractors in specific industries for industry focused compensation reviews?”

Click here for the complete ANPRM - Compensation Data Collection Tool

Additionally, the OFCCP will conduct web-based and Town Hall listening sessions to provide an opportunity to offer suggestions and recommendations related to the scope, content and format of the data collection tool in the months ahead.  THOMAS HOUSTON associates, inc. will monitor and communicate the announcements of these listening sessions. 

For more information on the services offered by THOMAS HOUSTON associates, inc., please visit our corporate website:  www.THOMASHOUSTON.COM