Federal Contractors: In the Line of Regulatory Fire

On October 10, 2014, the White House hosted a listening session regarding President Obama’s “Fair Pay and Safe Workplaces” Executive Order (discussed in detail in a prior Orrick Employment blog post here), one of many new laws imposing significant new requirements on federal contractors. Representatives of the Professional Services Council met with Secretary of Labor Tom Perez and White House officials to urge changes to the Order, which (among other things) requires prospective federal contractors and subcontractors to track and report a comprehensive list of labor and employment law violations, bars larger existing contractors from requiring pre-dispute arbitration agreements of certain claims (including claims under Title VII), and requires contractors to provide employees with additional information on overtime and hours worked in paychecks. Read More

At Long Last, OFCCP Announces OMB Approval of a New Scheduling Letter and Itemized Listing

More than three years after the Office of Federal Contract Compliance Programs (OFCCP) first announced its intent to issue a new Scheduling Letter and Itemized Listing, the Agency finally has obtained approval to do so from the White House Office of Management and Budget (OMB).  The OFCCP’s Scheduling Letter provides a contractor with notice of its selection for a compliance evaluation (audit), and the Itemized Listing constitutes OFCCP’s standard initial request for submission of the contractor’s Affirmative Action Plan and supporting personnel activity and compensation data.  OFCCP announced the OMB approval in a September 30, 2014 Notice, and published the final versions of the Scheduling Letter and Itemized Listing on October 1, 2014.

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Employers Should Act Now to Avoid Potential Data Minefields: The OFCCP’s New Proposed Rules for Collecting Compensation Data from Federal Contractors

On August 8, 2014, the Office of Federal Contract Compliance (“OFCCP”) proposed new annual reporting requirements for federal contractors and subcontractors.  The proposal requires additional pay information and will become effective in early 2015, unless the OFCCP decides to amend them.

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OFCCP Rescinds Prior Guidance on Compensation Discrimination Analysis In Favor of a Case-by-Case Approach

Effective February 28, 2013, the Office of Federal Contract Compliance Programs (“OFCCP”) rescinded two 2006 guidance documents concerning how the OFCCP and federal contractors analyze potential pay discrimination. This change came as a response to President Obama’s Equal Pay Task Force, which brought together the federal agencies charged with addressing pay discrimination.

The OFCCP, which is charged with ensuring federal contractors and subcontractors provide equal employment opportunity, concluded that the previous guidance was too rigid and undermining the agency’s efforts to combat discrimination. Several aspects of the now-rescinded guidance fell into disfavor with the OFCCP in its efforts to carry out President Obama’s mandate to step up investigation of systemic compensation discrimination. First, it was required to compare “similarly situated workers,” defined narrowly to include only employees with the same position. Second, it was required to use multiple regression analysis to test for pay disparities, failing to address situations where analysis of a smaller sample size might be more appropriate. Finally, it required anecdotal evidence to establish a systemic compensation violation in addition to statistical evidence. Reasoning that “employment discrimination comes in many forms,” OFCCP found that this specific method of analyzing compensation would not allow OFCCP to detect all forms of pay discrimination. Read More

Collection of Pay Data by Gender, Race and National Origin

On August 15, 2012, a panel commissioned by the Committee on National Statistics (CNSTAT) issued a report concluding that the U.S. Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP) of the U.S. Department of Labor (DOL) should not collect earnings data by gender, race and national origin from private employers until the agencies develop a clearly articulated plan regarding how the data will be used to further their enforcement responsibilities.  The panel also made several recommendations to assist the agencies in preparing to collect such data. Read More