OFCCP Week In Review: February 4, 2019

The DE 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:

• E-Verify Back in Business, But Backlogged
• Employer Assistance on Disability Inclusion
• CSAL Notification Changes
• Application Window Open for HIRE Vets Medallion Award
• EEO-1 Filing Window Postponed
• January Employment Situation
• New Acting Administrator at WHD

Monday, January 28, 2019: E-Verify Back in Business, but Backlogged

E-Verify operations have resumed. Given that the service was unavailable for over a month, there is a backlog of verifications to be processed.

Employers who participate in E-Verify must create an E-Verify case by February 11, 2019, for each employee hired while E-Verify was not available.

• Use the hire date from the employee’s Form I-9 when creating the E-Verify
• If the case creation date is more than three days following the date the employee began working for pay, select “Other” from the drop-down list and enter “E-VerifyNot Available” as the specific reason.

The E-Verify Support Team expects an increase in requests for assistance. Due to this increase, users may experience longer than normal delays and response times. For any questions or additional information about the unavailability of E-Verify, please email e-verify@dhs.gov. For questions about Form I-9, email I-9central@dhs.gov. Employers and employees may also contact E-Verify at 888-464-4218 Monday through Friday from 8 a.m. to 8 p.m. Eastern Standard Time.

Tuesday, January 29, 2019: Employers Assistance on Disability Inclusion

The Employer Assistance and Resource Network on Disability Inclusion released an animated video to showcase its offerings and introduce the many ways it can help in recruiting, hiring, retaining, and advancing qualified individuals with disabilities. The video reviews the benefits of a disability-inclusive workplace as well as resources available on the EARN website, including an employer policy framework, links to state and local community-based organizations, and information on various disability nondiscrimination laws and regulations. EARN is funded by the U.S. Department of Labor’s Office of Disability Employment Policy (“ODEP”) under a cooperative agreement with The Viscardi Center. Representatives from EARN will be available and presenting at DirectEmployers Annual Conference, DEAM19. After enduring the polar vortex here in the Midwest, we are all thrilled to be heading to Naples, Florida in May!

Thursday, January 31, 2019: CSAL Notification Changes

Federal Government Contractors subject to OFCCP Compliance Evaluations (“Evaluations”) no longer need to wait by the mailbox in anticipation of a Corporate Scheduling Announcement Letter (“CSAL”). While OFCCP will continue to alert contractors in advance of a scheduled Compliance Evaluation, OFCCP will no longer send an individualized letter each selected establishment. Rather, to increase its efficiency and eliminate the uncertainty and anxiety contractor headquarter establishment personnel have harbored since the inception of the CSAL program in the Bush Administration (#43), beginning with the next round of Evaluations, OFCCP will continue to “announce” companies selected for  Evaluation, but will do so ONLY on OFCCP’s website (on its Freedom of Information Act page). This web-based publication of the List of selected contractors will thus further OFCCP transparency and make sure contractors who want to be sure they were or were not on OFCCP’s List can quickly and efficiently obtain that information. Better living through technology.

Action Plan: Contractors will therefore have to visit OFCCP’s website after OFCCP publishes the List to know that an OFCCP Compliance Evaluation will be forthcoming.

Any consequences to not sending out the Letters?

• Contractors unaware of the need to now check the OFCCP website for the List may miss out on OFCCP’s courtesy web-based notice that an evaluation is on the way. Luckily for you that you are reading this WIR and even better if you are a DE Member. Please pass this information along to friends, family, and clients. Friends don’t let friends get surprise OFCCP Compliance Evaluations! And, the DE Member Engagement Group will monitor OFCCP’s publication of its next Evaluation List and will thereafter notify affected DE Members that OFCCP has scheduled one or more of their establishments for an Evaluation.
• After OFCCP publishes its web-based List, OFCCP will continue to mail Scheduling Letters, per the usual, when the time comes for OFCCP to commence its Evaluation. Also per usual, OFCCP will continue to mail its Scheduling Letters to the establishment under evaluation and NOT to the plant or office’s corporate headquarters location (unless OFCCP happens to be evaluating the headquarters establishment). If a contractor discovers that the address for one of its establishments on OFCCP’s web-based List is incorrect, the contractor may choose to do nothing. Alternatively, the contractor could contact the OFCCP District Office scheduled to conduct the Evaluation to alert its District Director to correct the Agency’s records. In addition, because OFCCP obtained the incorrect address from the contractor’s EEO-1 Survey for that establishment, the contractor will want to check the EEO-1 Survey it filed for that establishment before OFCCP published its web-based List.
• Undeliverable Scheduling Letters will be returned to the United States Postal Service. OFCCP will then attempt to call the contractor establishment to identify the correct address and provide the Letter via mail or e-mail. OFCCP has previously stated that it hoped to publish its next List in February or early March, although the WIR’s reporters have heard that senior OFCCP officials are trying to decide right now whether to slip this date to April or even May.

Bookmark the OFCCP FOIA page for future reference.

Thursday, January 31, 2019: Application Window Open for HIRE Vets Medallion Award

The U.S. Department of Labor announced that the application period is open for employers to apply for the HIRE Vets Medallion Award. This program recognizes small businesses, non-profit organizations, and large companies for their leadership in recruiting, employing, and retaining America’s veterans.

The Honoring Investments in Recruiting and Employing American Military Veterans Act of 2017 (“HIRE Vets Act”), signed into law by President Trump, is the only federal-level veterans’ employment award that recognizes organizations committed to hiring veterans.

The deadline to apply is April 30, 2019.

To apply for the award, visit HireVets.gov.

We announced the winners of the 2018 HIRE Vets Medallion Award here, with a highlight of DE Members.

 

Friday, February 1, 2019: EEO-1 Filing Window Postponed

In light of the Federal Government Shutdown which prevented Equal Employment Opportunity Commission (“EEOC”) employees to prepare for the 2019 EEO-1 filing season, the EEOC postponed the opening of the filing window for the annual EEO-1 Survey. The specific dates are yet to come; however, the most recent update on the EEOC website indicates the filing window opening will come in “early March 2019.”

May 31, 2019, is the new deadline to submit the EEO-1 Survey (once the filing window opens).

 

 

Friday, February 1, 2019: January Employment Situation

The Bureau of Labor Statistics (“BLS”) released January’s “Employment Situation.”

How did the partial government shutdown affect the numbers?

The BLS was funded during the shutdown period and was operating as usual. Data collection for the household and establishment surveys occurred as scheduled. However, data received varied due to the partial shutdown. Read the specifics in the frequently asked questions released by the BLS.

Unemployment Rate	January 2019	January 2018
National (Seasonally adjusted)	4.0% (up from 3.9 % in Dec)	4.1%
Veterans (Not seasonally adjusted)	3.7% (up from 3.2% in Dec)	4.0%
Individuals with Disabilities (Not seasonally adjusted)	9.0% (up from 7.9% in Dec)	8.8%

Federal Government Contractors subject to the VEVRRA “Benchmark for hiring”:

• No change to OFCCP’s Benchmark for hiring percentage (still 6.4%) as of yet, but in the past three years, we have seen OFCCP adjust the Benchmark for hiring in March.
• Regardless of your veteran hiring rate compared to the Benchmark for hiring percentage, you must ALWAYS:
• Appropriately “list” (NOT POST) your available jobs with local state contacts. (Remember, as Melissa Speer, the Regional Director, OFCCP SWARM Region stated, “If you “post” your jobs, but don’t “list” your jobs, you will be cited.”)

Document and assess your positive outreach and recruitment efforts.

 

Friday, February 1, 2019: New Acting Administrator at WHD

The U.S. Department of Labor’s Wage and Hour Division (“WHD”) has a new Acting Administrator, Keith Sonderling. Sonderling was the former Senior Policy Advisor.

This move comes on the heels of the resignation of Bryan Jarett, who left in early January to pursue an opportunity in the private sector. Meanwhile, Cheryl Stanton is still awaiting Senate confirmation to be the WHD Administrator.

 

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.