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:
Monday, March 4, 2019: EEO-1 Pay Data – Back on the Table?
The National Women’s Law Center (“NWLC”), et al. v. Office of Management and Budget (“OMB”), et al. Civil Action No. 17-cv-2458 (TSC)
Plaintiff NWLC is a 46-year-old nonpartisan, nonprofit organization that advocates for the rights of women and girls at school, at work, at home, and in their communities. NWLC claims, among other injuries, that if OMB had not stayed the pay data collection in the Equal Employment Opportunity Commission (“EEOC”) EEO-1 Annual Survey (see additional story this week on the opening of the EEO-1 Survey), NWLC “would have been able to make its reports and advocacy more robust with additional data and analysis.”
The Recent Event
A Motion to Dismiss. Judge Tanya S. Chutkan of the U.S District Court for the District of Columbia issued an Order granting the NWLC’s Motion to Dismiss the case. Judge Chutkan ruled that OMB did not provide a “reasoned explanation” for placing a hold on the EEOC pay data collection. Chutkan ordered the collection to go back into effect, meaning most private employers with 100 or more employees will have to submit information on their workers’ wages and hours—broken down by race, sex, and ethnicity—to the EEOC. Unless of course there is an Appeal…and, even absent an appeal, there is still a question of timing and when the EEOC would/could issue revised EE0-1 filing instructions for 2018 data.
How We Got Here
Read these Week-In-Review’s to get up to speed:
Thursday, March 7, 2019: EEO-1 Survey Opening Date Announced
The U.S. Equal Employment Opportunity Commission (“EEOC”) will officially open the 2018 EEO-1 Survey on March 18, 2019. You may recall the deadline to submit EEO-1 data was extended until May 31, 2019, due to the partial government shutdown.
Who Needs to Complete the EEO-1 Survey?
- All private employers with 100 or more employees.
- Federal government contractors or first-tier subcontractors with 50 or more employees and a federal contract, subcontract or purchase order amounting to $50,000 or more.
The filing of the EEO-1 Survey is required by federal law per Section 709(c), Title VII of the Civil Rights Act of 1964, as amended; and §1602.7–§1602.14, Title 29, Chapter XIV of the Federal Code of Regulations.
- Companies which need to update their EEO-1 company contact should reach out here: E1.email@example.com.
- Companies which have undergone merger or were involved in an acquisition between January 1, 2018, and December 31, 2018, may wish to send an email here to get the Joint Reporting Committee’s guidance as to how you might proceed to report: E1.Acquisitionsmergers@eeoc.gov.
- For all other inquiries, companies may send an email to E1.Techassistance@eeoc.gov.
What About Pay Data?
Not at this time, although potentially soon. See Monday’s headline above, “EEO-1 Pay Data – Back on the Table?”
Thursday, March 7, 2019: DOL Overtime Update Proposal Released
The U.S. Department of Labor (“DOL”) released a Notice of Proposed Rulemaking (“NPRM”) that would boost the standard salary level from $455 per week ($23,660 annually) to $679 per week ($35,308 annually). Whether to raise the salary level and to what level has consumed much debate over the last several years culminating in the public filing with the DOL over 140,000 comments).
The U.S. District Court for the Eastern District of Texas enjoined a 2016 Final Rule to change the overtime thresholds on November 22, 2016. As of November 6, 2017, the U.S. Court of Appeals for the Fifth Circuit has held an appeal in abeyance pending further rulemaking regarding a revised salary threshold. Because a federal Court had enjoined the 2016 Final Rule, the Department has consistently enforced the lower value 2004 salary level for the last 15 years.
More information about the Proposed Rule is available here. Once USDOL publishes the Rule in the Federal Register (it is currently sitting with the Office of the Federal Register for publication), the public will have 60 days to submit comments for consideration. Submit comments at www.regulations.gov, in the rulemaking docket RIN 1235-AA20.
How We Got Here
Read these Week-In-Review’s to get up to speed:
- Nov 2017: DOJ Appealed Permanent Injunction on Overtime Rule
- Sept 2017:Federal Court Issued Permanent injunction stopping Obama Overtime Rule
- July 2017: DOL published RFI on FLSA Overtime Rule
- Nov 2016: Federal Courts Dismantling Obama Labor Initiatives Even Before Trump Can Do So
- May 2016: New Overtime Rule Released by Wage and Hour Division of the US Department of Labor
Friday, March 8, 2019: OFCCP Focused Review FAQs and More Released!
The OFCCP has now published Frequently Asked Questions
(“FAQs”) concerning the coming Section 503 Focused Reviews! Located under the “Contractor” tab on the OFCCP home page,
a new section, titled “Section 503 Focused Reviews,” organizes
all of the existing Section 503 content onto one “landing page.”
Of particular interest is the new content as to what contractors can expect during a Focused Review. For instance:
FAQ #11. What will OFCCP examine and assess during a Section 503 Focused Review?
During a Section 503 focused review, OFCCP will assess the contractor’s compliance with all elements of the Section 503 regulations, including whether the contractor conducted the required assessments of its employment policies and tracked appropriate data concerning individuals with disabilities.
For specific items requested, see the Focused Review Scheduling Letter that outlines the 12 deliverables.
The new OFCCP Section 503 Focused Review landing page contains links to the following:
- Section 503 Focused Reviews
- Disability Inclusion Video
- Disability Rights Fact Sheet
- Best Practices: DE Member Microsoft catches a well-deserved spotlight in this arena. Be sure to check out their programs highlighted under “Inclusion.”
- Section 503 Regulations
- Section 503 Resources
- Reasonable Accommodation Pocket Card
- Voluntary Self-ID Form
Last week John C. Fox broke down, in great detail, what to expect in a Focused Review based on the discussions at the recent OFCCP Town Hall meetings. His exclusive recap and analysis hold a wealth of audit-readiness information. Be sure to check it out here.
DirectEmployers (“DE”) Members
Access in the DE Connect Community two quick-reference side-by-side documents DE has created comparing Section 503 Focused Review Scheduling Letter (deliverables) to the exisitng OFCCP Supply & Service Scheduling Letter (reliverables) to show you that OFCCP is requesting nothing new (see Table 1) and then conversely comparing OFCCP’s Supply & Service Scheduling Letter and Itelized LIsting to the new Section 503 Focused Review Scheduling Letter (see Table 2).
Want to ensure you are ready for a Focused Review? Contact DE’s Compliance VP, Jennifer Polcer if you would like to undergo a Section 503 Focused Review Mock Audit. The DE Compliance Group, including John C. Fox, will spearhead these Mock Audits under attorney-client privilege for a very modest fee. Given how close in time it is to OFCCP’s launch of Section 503 Focused Reviews, DE must limit this offer to the first 50 Members to sign-up through Jennifer.
Friday, March 8, 2019: February Employment Situation
The Bureau of Labor Statistics (“BLS”) released February’s “Employment Situation.” Job numbers showed slight declines for Americans with disabilities. Among the major worker groups, the unemployment rates for adult men (3.5 percent), Whites (3.3 percent), and Hispanics (4.3 percent) decreased in February. The jobless rates for adult women (3.4 percent), teenagers (13.4 percent), Blacks (7.0 percent), and Asians (3.1 percent) showed little or no change over the month. Read the full report here.
|Unemployment Rate||February 2019||February 2018|
|National (Seasonally adjusted)||3.8% (down from 4.0 % in Jan)||4.1%|
|Veterans (Not seasonally adjusted)||2.7% (down from 3.7% in Jan)||3.5%|
|Individuals with Disabilities (Not seasonally adjusted)||9.1% (up from 9.0% in Jan)||8.6%|
Friday, March 8, 2019: 2018 Annual Report on People with Disabilities Released
The Rehabilitation Research and Training Center on Disability Statistics and Demographics (StatsRRTC) facilitates evidence-based decision making in many different service and policy arenas to benefit persons with disabilities. StatsRRTC released a plethora of 2018 data sliced and diced into various reports making it easier to locate and use disability statistics.
The following web-based tools pool disability statistics published by various federal agencies together in one place:
- 2018 Annual Report On People with Disabilities in America
- 2018 Annual Disability Statistics Compendium
- The 2018 Annual Disability Statistics Supplement provides hundreds of tables breaking down the content found in the Compendium by state, age, gender, and race-ethnicity.
Find the answers and the supporting data to these and many other questions:
- Are people with disabilities as likely to be employed as people without disabilities? And if not, is the situation getting better? (page 5 of the Annual Report)
- Did the gap between the median earnings of people with disabilities and the median earnings of people without disabilities narrow? (page 6 of the Annual Report)
- What is the employment rate of people of disabilities, by race, in my state? (section 2 of the Supplement)
Week In Review (WIR)
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John C. Fox, Esq. is President and Partner at Fox, Wang & Morgan P.C. where he represents companies and tries cases in state and federal courts throughout the United States. Mr. Fox has extensive trial experience, having spent more than 300 days in trial. Mr. Fox was also lead trial counsel in the first of the six wage-hour class actions known to have been tried in California and was lead trial counsel in what are believed to have been the two largest disability law suits in the United States. He is an across-the-board employment lawyer representing management nationwide. Full Bio »