OFCCP Week In Review: October 8, 2018

The OFCCP Week in Review (WIR) is a simple, fast and direct summary of relevant happenings in the OFCCP regulatory environment, authored by experts John C. Fox, Candee Chambers and Jennifer Polcer. In today’s edition, they discuss:

• EEOC Released Sexual Harassment Data
• Proposed – ‘Excellence in Disability Inclusion’ Award
• Unemployment Rate Hit New Low

Thursday, October 4, 2018: EEOC Released Sexual Harassment Data

The U.S. Equal Employment Opportunity Commission (EEOC) announced preliminary FY2018 sexual harassment data. ‘What You Should Know: EEOC Leads the Way in Preventing Workplace Harassment’ recognizes key milestones of the agency to enforce the law actively, to educate and train workers and employers, and to share its expertise on new solutions to reduce harassing conduct in the workplace.

Based on preliminary data in FY 2018:

• The EEOC filed 66 harassment lawsuits, including 41 that included allegations of sexual harassment. That reflects more than a 50 percent increase in suits challenging sexual harassment over FY2017;
• Charges filed with the EEOC alleging sexual harassment increased by more than 12 percent from FY2017;Note: This is a bit of a surprise to some since Acting EEOC Chair Lipnic reported at the mid-point of its Fiscal Year in March 2018 that sexual harassment charges had actually FALLEN in number. The surge in the back half of the Fiscal Year of sexual harassment charges following more prominent claims of sexual harassment when combined with the national debate which accompanied the Kavanaugh Confirmation Hearings signals a coming, but not surprising uptick in claims. If the past is prologue, brace for impact: in the final quarter of 1991 after the Clarence Thomas Confirmation Hearings, sexual harassment charges increased 71% at the EEOC.
• The EEOC recovered nearly $70 million for the victims of sexual harassment through litigation and administrative enforcement, up from $47.5 million in FY2017.

Given the rising tide of sexual harassment claims which we expect to continue to rise, there is no time like the present to deliver sexual harassment training to make the rules of engagement clear to new hires and for refresher training for incumbents.

Friday, October 5, 2018: Proposed – ‘Excellence in Disability Inclusion’ Award

OFCCP published in the Federal Register a “Notice” seeking comments concerning its “proposal to obtain approval from the Office of Management and Budget (OMB) to implement the Excellence in Disability Inclusion Award.” Timed perfectly with National Disability Employment Awareness Month (NDEAM), OFCCP and the Office of Disability Employment Policy (ODEP) are joining efforts to recognize excellence in government contractor compliance practices.  The Excellence in Disability Inclusion Award will highlight successful practices and strategies of government contractors that have expanded and improved recruitment, hiring, retention, and promotion opportunities for individuals with disabilities.

This initiative also comes on the heels of Directive 2018-06 – Contractor Recognition Program. It is one of several suggestions from Town Hall meetings and in the action plan for OFCCP to become more transparent and collaborative.

To be eligible for the award:

• Read the 503 Award Supporting Statement
• Read the Award Form Instructions
• Complete the 503 Award Form

Here are the eligibility requirements in a nutshell:

1. Meet the affirmative action jurisdictional threshold and have a current AAP for Section 503 and EO 11246, and VEVRAA if applicable;
2. Have implemented their affirmative action programs;
3. Have no unresolved violations of Section 503, EO 11246, or VEVRAA if applicable;
4. Have no adverse decisions by a court, Administrative Review Board, or Administrative Law Judge related to violations of Section 503, EO 11246, VEVRAA, or the Americans with Disabilities Act (ADA).

An Executive Review Committee (ERC) made up of representatives from OFCCP, ODEP and possibly another federal agency and a non-profit disability rights organization or association will review submissions. Awards will be granted to one small (under 100 employees) company and two large companies biennially. Honorable mentions in both categories will be recognized as well. Specifics on the submission process including required data and scoring system are here. The review will look back over two years, and companies which have incorporated apprenticeships into their affirmative action programs will earn extra points in their submission.

Winners will be expected to participate in a public service announcement (PSA) on the importance of contractor compliance. In particular, how OFCCP regulations align with ODEP’s goal of developing and validating policy strategies and effective practices for increasing employment opportunities for individuals with disabilities. Among other things, winners will work with OFCCP and ODEP in a peer-to-peer mentoring program to support other contractors as they seek to comply with OFCCP regulations.

The awards are set to begin in 2019, which will require a review of data from 2018 and 2017. OFCCP currently plans to solicit nominations every other year and may expand the number of award winners in future years.

Comments? You can provide any comments or suggestions you have for the new program via www.regulations.gov. The last day to submit comments on this proposal is December 4, 2018.

Friday, October 5, 2018: Unemployment Rate Hit New Low

The Bureau of Labor Statistics (BLS) released the ‘Employment Situation’ from September’s data. The unemployment rate fell to 3.7% (seasonally adjusted), the lowest since 1969. The individuals with Disabilities unemployment rate declined as well. However, we saw a slight upward movement in the Veterans unemployment rate.

September recap here.

THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.