As you’ll recall from our extensive coverage of the EEO-1 pay data collection saga (which we previously reported on here, here, here, here, here, here, here, here, and here), private employers, including federal contractors, have been busy collecting and submitting EEO-1 pay data to the EEOC. The deadline for submissions was initially set for May 31, 2019, but has since been extended multiple times. Earlier this month, U.S. District Court Judge Tanya S. Chutkan ruled that the EEOC must continue its collection efforts until it has collected from at least 98.3% of eligible reporters and must make all efforts to do so by January 31, 2020. READ MORE
For the second month in a row, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has issued guidance to update materials available to federal contractors and subcontractors. On September 19, 2018, the OFCCP issued two broad directives aimed at improving transparency and communications and to implement the highly-anticipated ombud service. These directives respond to contractor complaints related to the length and process for OFCCP audits. READ MORE
OFCCP recently lost Trump-appointed Director Ondray Harris due to his resignation. Deputy Director Craig Leen takes Harris’s place in the interim. Harris’s departure raises some important questions that covered federal contractors may be asking.
What was Harris able to accomplish during his short tenure? During Harris’s time at the Agency, there were few policy developments. The Agency extended the moratorium on audits for many health care providers who offer medical coverage under the military’s TRICARE program. In addition, the Agency made good on its promise to provide contractors with additional transparency by (1) publishing its scheduling methodology; and (2) releasing a guidance document titled “What Contractors Can Expect” that stresses good behavior by the Agency and its staff. READ MORE
Effective February 27, 2018, the Office of Federal Contract Compliance Programs (OFCCP), which is charged with ensuring federal contractors and subcontractors provide equal employment opportunity, issued Directive 2018-01, announcing that predetermination notices (PDNs) will be sent to federal contractors and subcontractors for all audits and compliance reviews where a finding of unlawful employment discrimination is imminent. READ MORE
The President released his budget which includes separate proposals for various government agencies. The budget proposal for the Office of Federal Contract Compliance Programs (OFCCP), which oversees affirmative action and non-discrimination requirements for federal contractors, includes a plan for the government to fold the agency into the Equal Employment Opportunity Commission (EEOC). The proposal tasks OFCCP with working collaboratively to develop and implement a plan to complete the merger by September 30, 2018. The proposal touts increased efficiencies in the form of consolidated government EEO oversight and enforcement “under one roof.” Perhaps to facilitate this move to a common agency, the administration has proposed slashing OFCCP’s budget by over $17 million to $88 million for FY 2018 and reducing staff by 131 positions. This would be accomplished by closing field office locations and other cost savings measures.
The proposed merger raises many questions including: READ MORE
The Government Accounting Office recently released a report on the DOL’s Office of Federal Contract Compliance Programs (OFCCP). The report notes several concerns related to the Agency’s contractor selection process, investigator training and compliance assistance efforts. Further, the report details many of the concerns voiced by contractors regarding inconsistency in investigations and contractors’ overall distrust of the Agency in compliance assistance efforts. OFCCP received a draft of the report and, in its response to the draft report, agreed with some of the recommendations related to changes in the selection process and better monitoring of contactors for AAP compliance. Further, the Agency noted its efforts to improve training and compliance assistance.
The EEOC has provided a second chance to comment on its proposed revisions to the EEO-1 form. The revised proposal does not change the EEOC’s insistence on collecting pay and hours worked data and does not fully respond to employers’ concerns regarding the burden and usefulness of collecting the data. Rather, the EEOC revised the report to change the due dates to coordinate reporting of demographic and additional data beginning in March 2018. The comment period for the revised proposal closes August 15, 2016.
The EEOC’s efforts arise from the government’s larger efforts to enforce pay equity through a series of reporting, enforcement and voluntary initiatives. This reporting initiative follows a now-abandoned effort by the Office of Federal Contract Compliance Programs (OFCCP) to obtain pay data in an equal pay report. EEOC has joined with OFCCP to collect and share pay data to bolster its reporting and enforcement efforts.
On January 29, 2016, the EEOC asked the Office of Management and Budget to approve a change to the EEO-1 form. As discussed in more detail here, EEOC proposed that beginning in September 2017, EEO-1 filers with 100 or more employees would be required to submit EEO-1 data to include aggregated W-2 pay and hours worked data. The Agency scheduled hearings and invited various stakeholders including Orrick’s Gary Siniscalco to testify regarding the proposal. Orrick’s testimony can be found here. READ MORE
As we noted in last week’s coverage of Equal Pay Day’s twentieth anniversary, the issue of equal pay has been drawing increasing attention from regulators, legislators and plaintiffs’ attorneys nationwide. Of particular note, a report issued in January 2016 by the National Women’s Law Center highlighted the unprecedented level of new equal pay legislation at the state level. Leading this wave of activity, both New York’s Achieve Pay Equity law and California’s Fair Pay Act law have in place the broadest protections for employees seeking to bring gender-based equal pay claims. Additionally, a number of other states have adopted piecemeal legislation addressing equal pay, such as prohibiting employer retaliation based on employee discussions of wages (Connecticut, New Hampshire, Oregon), holding state contractors responsible for certifying their equal pay compliance (Delaware, Minnesota, Oregon), increasing civil penalties for equal pay violations (Illinois), or requiring employers to maintain wage records in anticipation of potential state government inquiries (North Dakota).
Today marks the twentieth anniversary of “Equal Pay Day,” which the National Committee on Pay Equity launched as a public awareness event in 1996 to symbolize how far into the year women must work to earn what men earned in the previous year. In more than 50 years since enactment of the federal Equal Pay Act (“EPA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”), women have made significant progress in the workplace and now make up roughly half of the American workforce. However, women working full time still earn, on average, 79 cents for every dollar earned by men, and this number has barely moved in over a decade. That said, it is still not clear that employer bias is to blame for the gap that remains. Indeed, the pay gap measures only the difference in average earnings between all men and all women; it is not a proxy for pay bias—i.e., the failure to pay women equal pay for equal work. Eliminating pay bias is important, but focusing heavily on perceived employer bias obscures a much more complex web of factors contributing to the problem of pay differences between men and women.
On March 16, 2016 the EEOC will be holding hearings on its proposal to expand the EEO-1 report to require employers to provide pay data. Orrick’s Gary Siniscalco was asked to address the hearing to provide employer views on this issue. Watch our Blog for ongoing developments on this issue and new developments in the equal pay area as they continue to unfold. The text of Gary’s testimony before the EEOC will be as follows: